[Senate Hearing 113-502]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-502

                    INDIAN GAMING: THE NEXT 25 YEARS

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 23, 2014

                               __________

         Printed for the use of the Committee on Indian Affairs
         
    
                                   ______

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                      COMMITTEE ON INDIAN AFFAIRS

                     JON TESTER, Montana, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
MARIA CANTWELL, Washington           LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
        Mary J. Pavel, Majority Staff Director and Chief Counsel
              Rhonda Harjo, Minority Deputy Chief Counsel
              
              
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 23, 2014....................................     1
Statement of Senator Barrasso....................................     4
Statement of Senator Franken.....................................    41
Statement of Senator Heitkamp....................................    38
Statement of Senator McCain......................................     2
Statement of Senator Tester......................................     1

                               Witnesses

Chaudhuri, Jonodev Osceola, Vice Chairman, National Indian Gaming 
  Commission.....................................................    18
    Prepared statement...........................................    20
Enos, Hon. Diane, President, Salt River Pima-Maricopa Indian 
  Community......................................................    70
    Prepared statement...........................................    72
Fennell, Anne-Marie, Director, Natural Resources and Environment, 
  U.S. Government Accountability Office..........................    24
    Prepared statement...........................................    25
Gosar, Hon. Paul A., U.S. Representative from Arizona............     5
    Prepared statement...........................................     7
Grijalva, Hon. Raul M., U.S. Representative from Arizona.........    10
    Prepared statement...........................................    12
Hicks, Hon. Michell, Principal Chief, Eastern Band of Cherokee 
  Indians........................................................    47
    Prepared statement...........................................    49
Norris, Jr., Hon. Ned, Chairman, Tohono O'odham Nation...........    88
    Prepared statement...........................................    89
Stafne, Hon. A.T., Chairman, Assiniboine and Sioux Tribes of the 
  Fort Peck Indian Reservation...................................    43
    Prepared statement...........................................    45
Stevens, Jr., Ernest L., Chairman, National Indian Gaming 
  Association....................................................    51
    Prepared statement...........................................    54
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S. 
  Department of the Interior.....................................    14
    Prepared statement...........................................    15
Weiers, Hon. Jerry, Mayor, City of Glendale, Arizona.............    83
    Prepared statement...........................................    85

                                Appendix

Balderas, Hon. Ruben, President, Fort McDowell Yavapai Nation, 
  prepared statement.............................................   106
Cate, Matthew, Executive Director, California State Association 
  of Counties, prepared statement................................   101
Counts, Hon. Sherry J., Chairwoman, Hualapai Tribe, prepared 
  statement......................................................    99
Escalanti Sr., Hon. Keeny, President, Fort Yuma Quechan Indian 
  Nation, prepared statement.....................................   129
Letters, submitted for the record 


Light, Steven Andrew, Ph.D. and Kathryn R.L. Rand, J.D., Co-
  Directors, Institute for the Study of Tribal Gaming Law and 
  Policy, joint prepared statement...............................   119
Mendoza, Gregory, Governor, Gila River Indian Community, prepared 
  statement......................................................   109
Response to written questions submitted to Hon. Kevin Washburn 
  by:
    Hon. John McCain.............................................   144
    Hon. Jon Tester..............................................   144
Rambler, Hon. Terry, Chairman, San Carlos Apache Tribe, prepared 
  statement......................................................   125
Shelly, Hon. Ben, President, Navajo Nation, prepared statement...   116
Tilousi, Rex, Chairman, Havasupai Tribal Council, prepared 
  statement......................................................   114

 
                    INDIAN GAMING: THE NEXT 25 YEARS

                              ----------                              


                        WEDNESDAY, JULY 23, 2014


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:30 p.m. in room 
628, Dirksen Senate Office Building, Hon. Jon Tester, 
Chairman of the Committee, presiding.

             OPENING STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    The Chairman. I will call the Committee on Indian Affairs 
to order.
    I want to welcome everybody to this hearing. As the 
Chairman of this Committee, I am very aware of the dire need 
for access to capital and economic development on reservations 
across this Nation. In some parts of Indian Country, gaming is 
become the primary component of creating and sustaining a 
tribal economy.
    Over the 25 years since enactment of the Indian Gaming 
Regulatory Act, we have witnessed a tremendous growth of tribal 
gaming. One of the architects of that Act is a member of this 
Committee, Senator John McCain. He and Mo Udall, then a 
Congressman, crafted this bill in the House while Senator 
Inouye led this issue in the Senate. I want to thank Senator 
McCain for his leadership, both then and now, on issues of 
importance to Indian Country.
    The Indian Gaming Regulatory Act sought to protect tribal 
gaming revenues and ensure that the funds were used for job 
creation and health care, infrastructure, education and other 
programs to benefit tribal members. The Act sought to ensure 
that gaming on Indian lands would be preserved as a viable 
means of achieving economic self-sufficiency for tribal 
governments.
    As Stand Up California recognized in a recent letter to me 
and the Vice Chairman, it said in the short span of two decades 
and a half, IGRA has achieved the goal of economic self-
determination for tribes previously not thought possible. The 
Indian Gaming Regulatory Act established and charged the 
National Indian Gaming Commission with the responsibility to 
monitor gaming activity, inspect the gaming premises, conduct 
background investigations, audit and review financial records, 
and take enforcement actions where necessary.
    At the same time, the Act acknowledged that tribal 
governments would continue to serve as the day-to-day 
regulators of Indian gaming operations. Today, there are nearly 
6,000 regulators at the tribal level, 570 at the State level 
and more than 100 individuals at the National Indian Gaming 
Commission.
    In 2013, tribal governments spent more than $400 million to 
regulate their gaming facilities. The National Indian Gaming 
Commission is funded $20 million annually through fees levied 
against tribal gaming operations. Tribal gaming has come a long 
way in the 25 years since IGRA was enacted.
    While not a cure-all for many serious challenges facing 
Indian Country, gaming has provided numerous benefits to the 
communities who operate successful facilities. These are 
sophisticated operations, often employing significant numbers 
of tribal members and non-Indians in their communities. Tribal 
sovereignty and self-governance are important issues for me and 
for this Committee. While gaming is not the answer for every 
tribe, all tribal nations have the right to determine the best 
possible future for their people.
    Today we are going to hear from witnesses how gaming has 
benefited Indian Country over the 25 years since IGRA was 
enacted. We will also hear about where the industry is heading 
and how tribal and Federal regulators address any issues that 
arise.
    We will also get a preview from the General Accountability 
Office examination of Indian gaming that is being done at the 
request of myself, the Vice Chairman, Senator Cantwell and 
Senator McCain.
    Before I ask Senator McCain if he has any opening 
statement, I would just like to say that there are a number of 
issues affecting Indian Country. Since I became Chair earlier 
this year, this Committee has held numerous Committee hearings 
on education, health, energy, economic development, trust, 
natural resources, that list goes on and on. I wish we had the 
kind of crowd we have here today at those hearings.
    Indian gaming has been a great opportunity for Indian 
Country. But all of these other issues are ones that require 
this level of attention. I hope this is something we can 
continue to highlight in this Committee.
    With that, Senator McCain, do you have any opening 
statements?

                STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    Senator McCain. I thank you, Mr. Chairman. I thank you for 
your leadership in this Committee and your dedication to Indian 
Country.
    These are very difficult and complex issues, as you 
mentioned, that come before this Committee. I serve on a number 
of committees, and I would argue perhaps the most complex 
issues that I have been engaged in in many ways are those that 
come under the jurisdiction of this Committee. I thank you for 
your leadership and I thank you for holding today's oversight 
hearing on Indian gaming. It has been more than 25 years since 
Congress enacted the Indian Gaming Regulatory Act of 1988. And 
I am proud to say that Indian gaming stands today as a proven 
economic driver that empowers over 240 gaming tribes across the 
Nation to pursue the principles of Indian self-determination 
and tribal self-governance.
    I worked closely with the late Senator Dan Inouye to work 
to develop IGRA in response to the Supreme Court's landmark 
Cabazon decision that held that Indian tribes have a sovereign 
right to conduct a certain level of gaming on reservation 
lands, particularly when States allow some form of gaming. 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.
    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. Today, as 
you mentioned, Mr. Chairman, the gaming industry generates 
about $28 billion a year. In my home State of Arizona, tribes 
collect roughly $1.8 billion a year in gaming revenues. Non-
Indian communities in Arizona have also benefited under the 
Arizona Tribal-State Gaming Compact by receiving over $1 
billion in gaming shared revenues since 2002 for a variety of 
public benefits, including education, local governments, 
tourism, trauma care services and wildlife conservation.
    I am hopeful that today's oversight hearing will revisit 
the importance of Indian gaming by highlighting its 
achievements and airing the challenges that exist today. One of 
my primary concerns continues to be the performance and legal 
limitations of the National Indian Gaming Commission as the 
chief Federal regulator for Indian gaming. We should also 
discuss the matter of off-reservation gaming including the 
situation in my home State of Arizona and elsewhere across the 
Nation. It has been many years since Congress has evaluated the 
impacts of Indian casinos on nearby non-Indian communities 
which is increasingly relevant given the desire of many in 
Congress to enact a Carcieri effect that would address the 2009 
Supreme Court ruling preventing the Interior Department from 
taking land into trust for a large number of tribes across the 
Country.
    Mr. Chairman, I want to thank you again for inviting 
witnesses from Arizona. I look forward to the Committee 
hearing, in particular the views of the proposed casino in 
Glendale, Arizona. As my colleagues know, IGRA allows for a 
Vegas-style gaming facility to be built on trust lands if they 
were acquired by an Indian tribe under a congressionally 
approved land claims settlement, in Glendale's case, the Gila 
Band Indian Reservation Lands Replacement Act of 1986. That law 
compensated the Tohono O'odham nation for lands that were 
flooded by the Army Corps Painted Dam near Gila Bend, Arizona. 
The Tohono O'odham Tribe is one of the small number of tribes 
in the Nation, I believe one out of three, that are using this 
IGRA exception but under a great deal of controversy and 
litigation.
    I share the objections of many Arizonans when I see a 
casino being air-dropped into the metro Phoenix area. However, 
I also understand that the Federal district court has decided 
in favor of the Tohono O'odham nation to acquire the land 
consistent with the technical wording of the Arizona compact 
and that the Glendale city council recently voted in support 
for the casino, which was a reversal, I might add.
    These and other factors could complicate Senate 
consideration of the bill that passed the house last year to 
prohibit gaming on the Glendale parcel. 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 claims settlement 
exception under IGRA. I know it is a complex issue, Mr. 
Chairman, and I appreciate your attention to it. I say to my 
friends from Arizona, 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. I know I speak for Senator Flake when I say 
both of us are committed to try to help resolve this issue.
    I thank you, Mr. Chairman.
    The Chairman. Thank you, Senator McCain. I want to thank 
you for your leadership over the many, many years that you have 
served both in the House and the Senate on Indian Country 
issues. We are going to need your guidance and your input on 
this Arizona issue as it progresses.
    With that, Senator Barrasso, your opening statement.

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman, for 
holding this hearing. I welcome Representative Gosar, 
Representative Grijalva, I see them both in the back there. 
There is a line, Mr. Chairman, way down the hall out there. 
Obviously there is a lot of interest in this. Welcome to the 
Committee.
    According to the National Indian Gaming Commission, gross 
revenues for Indian gaming in 2013 totaled $28 billion. Gaming 
activities must be regulated effectively. No one, be it 
contractors, vendors, players or employees should illegally 
benefit at the expense of the tribes or the gaming public. So 
to protect the integrity of Indian gaming, the National Indian 
Gaming Commission implemented an initiative focused on 
assistance, compliance and enforcement. I, along with Senators 
McCain and Cantwell and you, Mr. Chairman, requested the GAO, 
the Government Accountability Office, to conduct a study on 
Indian gaming with an emphasis on regulation. The GAO is still 
conducting that study and will provide us with preliminary 
findings today.
    I look forward to hearing the GAO evaluation of the 
commission's initiative, and also urge the commission to work 
closely with the GAO in this study.
    I also understand the President has announced his intent to 
nominate Mr. Chaudhuri, one of our witnesses today, as chairman 
of the National Indian Gaming Commission. Congratulations. The 
commission needs to be appropriately staffed so that it may 
conduct its responsibilities as outlined in the Indian Gaming 
Regulatory Act.
    I want to welcome the witnesses and look forward to the 
testimony. Thank you, Mr. Chairman.
    The Chairman. Thank you, Vice Chairman Barrasso. Before we 
get to our first panel, we are honored today to have a couple 
of our colleagues from the House with us, Congressman Gosar and 
Congressman Grijalva. Thank you for being here today to discuss 
the current issues affecting tribal gaming in Arizona. I want 
to thank you for being here to discuss those topics. With that, 
we will begin with you, Congressman Gosar.

   STATEMENT OF HON. PAUL A. GOSAR, U.S. REPRESENTATIVE FROM 
                            ARIZONA

    Mr. Gosar. Thank you, Chairman Tester and members of the 
Committee. Thank you for the opportunity to testify regarding 
the future of Indian gaming and the need of passage of H.R. 
1410.
    I have been actively involved in the troubling off-
reservation gaming issue in my home State of Arizona involving 
the Tohono O'odham Nation. The tribe is attempting to move from 
their ancestral lands in Tucson into another tribe's former 
reservation in the Phoenix metropolitan area for the sole 
purpose of building a casino. This comes after the Tohono 
O'odham and other Arizona tribes adopted a compact approved by 
Arizona voters which expressly promised that there would be no 
additional casinos or gaming in the Phoenix metro area until 
2027.
    In exchange for this promise, the voters granted the tribes 
a statewide monopoly on gaming and other tribes gave up 
significant rights. This Committee has before it H.R. 1410, the 
Keep the Promise Act, sponsored by my good friend and 
colleague, Trent Franks, from Arizona, that ensures the promise 
of no additional casinos in the Phoenix area is kept until the 
existing tribal-State gaming compact expires without 
interfering in the trust acquisition itself.
    In exchange for exclusivity in Arizona, the tribes agreed 
to cap the number of casinos in the state and particularly in 
the Phoenix metro area, to restrict the number of machines in 
the State and to share the machine revenues with the rural, 
non-gaming tribes so that all could benefit. Every urban tribe 
except for the Tohono O'odham agreed to this limitation. Tohono 
O'odham refused, citing the need for a new casino in the Tucson 
city area, or in the rural part of the tribe's reservation. The 
State and other tribes finally agreed to the restrictions on 
gaming being pushed by Arizona's governor and others, but also 
yielded to the TO's stated need.
    After the agreement was reached, the tribes and the State 
promoted their model compact by saturating the airways with 
press releases, voter handouts, billboards and television and 
radio interviews. Tohono O'odham spent nearly $1.8 million 
urging Arizona voters to rely on the limitation that included 
no additional casinos in the Phoenix area.
    However, in 2001, while negotiations were ongoing and 
unbeknownst to everyone, Tohono O'odham had begun efforts to 
find land in the Phoenix area to open their fourth casino. What 
is worse is that while Tohono O'odham was planning to buy the 
land in Glendale for a casino, the city of Glendale was 
building a public school a few blocks away. That school opened 
in 2004; the Tohono O'odham kept their intentions concealed 
until five years later.
    The voters approved the tribal-State compact in 2002 and 
rejected two competing propositions to expand gaming in the 
metropolitan area. In 2003, a few months after the voters 
approved the compact, Tohono O'odham finalized its multi-year 
effort to purchase land in Glendale for a casino and used a 
shell corporation to conceal its identity. The voters approved 
the proposition of the 17-tribe coalition because it was sold 
to the voters as the only proposition that would halt the 
growth of gaming in Phoenix and keep Indian gaming out of local 
communities.
    The system was a national model. It was working well until 
2009, when the Tohono O'odham announced that it would seek 
lands in trust off the reservation and in the Phoenix area for 
gaming. Tohono O'odham's dismissal of their promise to build no 
additional casinos in Phoenix is not something that Congress 
can ignore when the result would be so harmful to something 
that has been such a prominent national model. No entity, 
government or otherwise, should be rewarded for deceptive 
conduct that violates a compact and is contrary to the will of 
the voters.
    TO likes to say that to date, they are winning in the 
courts, which is a continuation of the deceitful manner in 
which they have dealt with this issue. Tohono O'odham fails to 
mention that the reason the court did not rule against them in 
a recent case was not due to the strength of their position, 
but because of the issue of sovereign immunity.
    In fact, after reviewing one of the claims, the district 
court stated that the evidence would appear to support the 
claim that the Tohono O'odham fraudulently induced other tribes 
and the State into agreeing to the gaming compact. However, the 
court did not rule because it was barred by the nation's 
sovereign immunity.
    The Supreme Court recently has in fact ruled on a similar 
issue, but not in the favor the tribe is boasting. In the case 
of Michigan v. The Bay Mills Indian Community, the court upheld 
the tribe's sovereign immunity from being sued by the State of 
Michigan. But, it also stated that only Congress can act when a 
tribe raises such immunity. That is exactly why this 
legislation is necessary. Failure to adopt this common sense 
legislation will negatively impact gaming and upend compacts 
throughout the Nation.
    I would also like to submit for the record a map that shows 
all the different islands within the city of Phoenix in which 
such gaming could occur. To give a slight aspect to this, one 
small little aspect in here is 100 acres, right here. It is 
kind of hard to see, but that little tiny dot is 100 acres.
    So with that, I yield back the balance of my time and thank 
you for the opportunity to express my views.
    [The prepared statement of Mr. Gosar follows:]

  Prepared Statement of Hon. Paul A. Gosar, U.S. Representative from 
                                Arizona
                                


    Attachment
    
    
    
       

    The Chairman. Thank you for your statement, Congressman 
Gosar. We appreciate it.
    Congressman Grijalva?

 STATEMENT OF HON. RAUL M. GRIJALVA, U.S. REPRESENTATIVE FROM 
                            ARIZONA

    Mr. Grijalva. Good afternoon, Chairman Tester, Vice 
Chairman Barrasso and my friend, Senator McCain. Thank you for 
including H.R. 1410 in this hearing.
    Most of the Tohono O'odham nation's reservation and its 
32,000 enrolled members are located within my congressional 
district. I have known and worked with the nation for a very, 
very long time, and I am privileged to represent them here in 
Washington. And I truly appreciate the Committee's invitation 
to come and speak at your hearing.
    The Corps of Engineers destroyed nearly 10,000 acres of the 
nation's reservation known as the Gila Bend Indian reservation. 
The Gila Bend Reservation is located in Maricopa County and 
serves the nation's San Lucy District. The suffering of the 
people who live in the san Lucy District and the economic harm 
the destruction did to the nation as a whole are well 
documented in the legislative history of the 1986 Gila Bend 
Indian Reservation Lands Replacement Act. The 1986 Act provided 
that if the nation would waive its legal claims against the 
United States, and if the nation would relinquish its rights to 
the land and water for most of the Gila Bend Reservation, that 
the United States in return would provide replacement 
reservation lands to the nation. The 1986 Act also required 
that those replacement lands be treated ``as a reservation for 
all purposes.'' That legislation was introduced by an icon of 
our State, Congressman Mo Udall, and co-sponsored by another 
icon from our State, then-Representative John McCain.
    Complying with all Federal laws and agreements, including 
the 1986 Act, a 1987 settlement agreement, the Indian Gaming 
Regulatory Act and the tribal-State compact, in 2009 the nation 
asked the Department of Interior to take into trust replacement 
reservation land in the west valley portion of Maricopa County. 
Earlier this month, Interior completed that process and the 
West Valley land is now part of the nation's reservation.
    The proponents of H.R. 1410 raise many arguments as to why 
the nation's West Valley land could not be taken into trust as 
part of the replacement reservation which the United States 
promised in the 1986 Act. But the Federal courts rejected these 
arguments and sent the issue back to Interior. Now Interior has 
issued a lengthy opinion in support of the nation and taken the 
land into trust to be part of the nation's reservation.
    The proponents of H.R. 1410 then argue that the nation's 
tribal-State gaming compact does not allow the nation to 
conduct gaming in the greater Phoenix area. The proponents of 
H.R. 1410 again took this argument to the Federal courts; but 
again, the Federal courts rejected their arguments, finding 
that, ``No reasonable reading of the compact could lead a 
person to conclude that it prohibited new casinos in the 
Phoenix area.''
    The proponents of H.R. 1410 also argued that the Indian 
Gaming Regulatory Act prohibits gaming on land a nation 
acquires under the 1986 Act. But here too, Federal court ruled 
that gaming on this land is ``expressly permitted by the Indian 
Gaming Regulatory Act.'' Finally, they have argued the nation 
must be held to some phantom promise. But the same court noted 
that the express language of the compact itself makes it clear, 
even if there had been such a promise, it could never have 
been, in the courts words, valid or binding.
    Contrary to recent lobbying rhetoric, the fact is, the 
official position of most of the municipalities in the West 
Valley is one of support for the nation's economic development 
project and opposition to H.R. 1410. In addition to nearby West 
Valley cities of Peoria, Tolleson, the mayor of Phoenix, 
Surprise, also the city of Glendale now formally support the 
nation's proposed economic development and oppose H.R. 1410. I 
realize that the mayor of Glendale's personal views are not in 
sync with those of the city council, but it is important to 
underscore that Glendale's official position is embodied in two 
recent resolutions, one which opposes H.R. 1410 and another 
which supports gaming-related economic development in the West 
Valley reservation. To the best of my knowledge, the only 
municipality to take an official position supporting H.R. 1410 
is the city of Scottsdale, which conveniently is located on the 
other side of Phoenix in the East Valley.
    I should take a moment to recognize in the audience today 
Mayor Bob Barrett of Peoria, and Glendale City Councilmen Gary 
Sherwood and Sammy Chavira. They are here today to urge the 
Committee to not move H.R. 1410 forward.
    I want to underscore one thing, that we need to be 
cognizant that if we enact H.R. 1410, other liabilities will be 
open to the United States: taking of land, breach of contract 
for the bargain that was struck in the 1986 Act. We would be 
liable for hundreds of millions of dollars. The way I see it, 
we are essentially asking the American taxpayer to pay for 
special interest legislation designed to protect East Valley's 
tribes' gaming market and the American taxpayer would bear the 
full liability for that protection.
    The United States of America, in the 1986 Act, the 
intention was to make the nation whole. It did. And every court 
case, every administrative review has upheld that law and the 
tribe's right to the West Valley and the development of that.
    So I would hope that this Committee looks further into it, 
examines it, but essentially we have a commitment as a nation. 
It is an honorable commitment. And I think we should not move 
this law forward, and honor the commitment that we made in 
1986. With that, I yield back.
    [The prepared statement of Mr. Grijalva follows:]

 Prepared Statement of Hon. Raul M. Grijalva, U.S. Representative from 
                                Arizona
    Good afternoon Chairman Tester, Vice Chairman Barrasso, and Members 
of the Committee, and special greetings to my colleague from Arizona, 
Senator McCain. Most of the Tohono O'odham Nation's Reservation and its 
32,000 enrolled members are located within my congressional district. I 
have known and worked with the Nation for a very long time, and I truly 
appreciate the Committee's invitation to speak at today's hearing.
    The Corps of Engineers inadvertently destroyed nearly 10,000 acres 
of that part of the Nation's reservation known as the Gila Bend Indian 
Reservation. The Gila Bend reservation is located in Maricopa County, 
and serves the Nation's San Lucy District. The suffering of the people 
who live in the San Lucy District, and the economic harm the 
destruction did to the Nation as a whole, are well documented in the 
legislative history of the 1986 Gila Bend Indian Reservation Lands 
Replacement Act. The 1986 Act provided that if the Nation would waive 
its legal claims against the United States, and if the Nation would 
relinquish its rights to the land and water at most of the Gila Bend 
reservation, the United States in return would provide replacement 
reservation lands to the Nation. The 1986 Act also required that these 
replacement lands be treated, and I quote, as a ``reservation for ALL 
purposes.''
    Complying with all federal laws and agreements, including the 1986 
Act, a 1987 settlement agreement, the Indian Gaming Regulatory Act, and 
its tribal-state compact, in 2009 the Nation asked the Department of 
the Interior take into trust replacement reservation land in the West 
Valley portion of Maricopa County. Earlier this month, Interior 
completed that process, and the West Valley land is now part of the 
Nation's reservation.
    The proponents of H.R. 1410 raised many arguments as to why the 
Nation's West Valley land could not be taken into trust as part of the 
replacement reservation which the United States promised in the 1986 
Act. But the federal courts rejected those arguments and sent the issue 
back to Interior. Now Interior has issued a lengthy opinion in support 
of the Nation, and taken the land in trust to be part of the Nation's 
reservation.
    The proponents of H.R. 1410 then argued that the Nation's tribal-
state gaming compact does not allow the Nation to conduct gaming in the 
greater Phoenix area. As they had a right to do, the proponents of H.R. 
1410 again took their arguments to the federal courts. But again, the 
federal courts rejected their arguments, finding that, and I quote 
again, ``no reasonable reading of the Compact could lead a person to 
conclude that it prohibited new casinos in the Phoenix area''.
    The proponents of H.R. 1410 also argued that the Indian Gaming 
Regulatory Act prohibits gaming on land the Nation acquires under the 
1986 Act. But here too, a federal court ruled that gaming on this land 
is, quote, ``expressly permitted'' by the Indian Gaming Regulatory Act. 
Finally, they have argued that the Nation must be held to some phantom 
``promise'', but the same court noted that the express language of the 
compact itself makes clear that even if there had been such a promise 
it could never have been, in the court's words, ``valid or binding''.
    Contrary to recent lobbying rhetoric, the fact is that the official 
position of most of the municipalities in the West Valley is one of 
support for the Nation's economic development project and opposition to 
H.R. 1410. In addition, the nearby West Valley cities of Peoria, 
Tolleson, and Surprise, the City of Glendale now formally supports the 
Nation's proposed economic development, and opposes H.R. 1410. I 
realize that the Mayor of Glendale's personal views are not in sync 
with those of his City Council, but it is important to underscore that 
Glendale's official position is embodied in two recent resolutions, one 
which opposes H.R. 1410 and another which supports gaming-related 
economic development on the Nation's West Valley reservation. To the 
best of my knowledge, the only municipality to take an official 
position supporting H.R. 1410 is the City of Scottsdale, which is 
located on the other side of Phoenix in the East Valley.
    I should take a moment now to recognize in the audience today Mayor 
Bob Barrett of Peoria, and Glendale Councilmen Gary Sherwood and Sammy 
Chavira. They are here today to urge this Committee to not take action 
to move H.R. 1410 forward.
    I want also to underscore that we need to be cognizant that 
enactment of H.R. 1410 likely will create for the Nation a new set of 
claims against the United States, including a claim for an 
unconstitutional taking of the Nation's confirmed property rights in 
its West Valley reservation, and a claim for breach contract based on 
the Unites States' failure to live up to its end of the bargain struck 
in the 1986 Act. The amount of money damages that could be awarded to 
the Nation could run into the hundreds of millions of dollars. The way 
I see it, we essentially are asking the American taxpayer to pay for 
special interest legislation designed to protect the East Valley 
tribes' market.
    The Nation has been subjected to a long, ugly campaign by the 
proponents of H.R. 1410. The Nation has patiently accepted every 
challenge and answered every question. Over the last five years, the 
federal courts and the Department of the Interior have studied every 
allegation, and have now made their pronouncements. In every case, the 
judicial and executive branches of the Federal Government have found 
the Nation to have acted honorably within the letter and spirit of the 
law.
    After the United States illegally destroyed nearly 10,000 acres of 
the Tohono O'odham Nation's land, it made a solemn promise to make the 
Nation whole by allowing the Nation to acquire new land that would be 
treated as a replacement reservation, as 1986 Act says, for ALL 
purposes. The West Valley reservation lies in the same county, and has 
the same gaming eligibility status, as the land that was destroyed. 
When the Department of the Interior took that land into trust, it 
honored the obligation that the United States took on when it made into 
law the 1986 Act. The acquisition of replacement land as required by 
land claim settlements simply cannot fairly or honestly characterized 
as ``reservation shopping''--these acquisition are instead the 
fulfillment of federal promises for compensation for historical 
wrongdoing.
    The federal courts and the executive branch have done their part to 
honor the United States' commitments in the 1986 Act, and it is my 
great hope that we in Congress will also do our part, by not moving 
H.R. 1410 even one step further towards enactment into law.
    I thank you again for your kind invitation to testify today, and I 
am happy to answer any questions you might have for me.

    The Chairman. Congressman Grijalva, thank you. Thank you 
for your testimony as well as Congressman Gosar's testimony. I 
think each of your testimony indicates this is a complicated 
issue; there is some difference of opinion. We appreciate your 
both coming to the good side and visiting with us.
    [Laughter.]
    The Chairman. Thank you very much.
    Mr. Gosar. Mr. Chairman, I also have a letter from Ed 
Pastor that found its way over. I would like to have that 
included in the record, in support of H.R. 1410.
    The Chairman. I would just say, without objection, this 
record will stay open for two weeks. If you have more things 
you want to put into the record, it will be in. Thank you all.
    We are going to have our first panel of witnesses that we 
can question come up, which includes Kevin Washburn, Assistant 
Secretary for Indian Affairs at the Department of the Interior. 
We are also going to hear from Jonodev Chaudhuri, Vice Chairman 
of the National Indian Gaming Commission. As the Vice Chairman 
pointed out, he is nominated to be the next chairman of the 
National Indian Gaming Commission. Congratulations, Jonodev.
    And finally, Ms. Ann-Marie Fennell, who is Director of 
Natural Resources and Environment at the Government 
Accountability Office. I want to thank you all. Your full 
written statements will be part of the record. We would ask you 
to keep your statements to within five minutes. As always, the 
hearing record is going to remain open for a couple of weeks, 
as I told the previous panel, for those who wish to submit 
written statements.
    Before we start with your testimony, Assistant Secretary 
Washburn, it was a few months ago Brian Cladoosby, Swinomish 
Tribe, was up as NCAI chair and you were giving him a bad time. 
I want to have Brian come to the well for a second, because he 
has a presentation for you.
    [Laughter.]
    Mr. Cladoosby. Thank you, Senator. As you know, a couple of 
months ago Kevin and I testified on Carcieri. He told you, any 
questions that you have, just to point them to me, point them 
to the guy with the basket on his head.
    The Chairman. That is right.
    Mr. Cladoosby. So thank you very much for allowing me to 
present the Assistant Secretary, Kevin Washburn, with this 
cedar hat from the Northwest. He will also be known as the man 
with the basket on his head.
    The Chairman. So we will know to direct the questions to 
Kevin.
    [Laughter, applause.]
    The Chairman. Once again, thank you all for being here 
today.
    Senator McCain. I think you should wear it for the entire 
hearing.
    [Laughter.]
    The Chairman. I guess we could entertain a motion to that 
effect.
    Kevin, you may proceed.

          STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 
       SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Washburn. Thank you very much, Chairman, and thank you, 
Vice Chairman Barrasso and Senator McCain, especially for your 
continuity on this subject. You are the one person who we have 
here who has been involved with Congress since IGRA was passed. 
It is good to have you here.
    Indian gaming, like this Committee, is bipartisan and non-
partisan. Though sometimes it is fairly parochial, I guess as 
we saw from the first panel. But Indian gaming is very, very 
important to Indian tribes. No one believes, I don't believe, 
that we have enough money to fulfill our trust responsibility 
to Indian tribes in the Federal appropriations process. I think 
it is fair to say that the Federal government doesn't have 
enough money to do a lot of the things that it needs to get 
done. I am sure that the trust responsibility is in that same 
category.
    Gaming revenues eclipse by a very large measure the amount 
of revenues that we have in my budget in Indian Affairs at the 
Department of Interior, including the BIA and the BIE. Our 
budget is about $2.5 billion and Indian gaming revenues are 
about $28 billion. So our budget is less than 10 percent of 
what comes in through Indian gaming. In fact, gaming revenues 
eclipse by a large measure all the Federal revenues toward 
Indian tribes. So gaming is an important piece of the puzzle 
for economies on Indian reservations.
    I also am a big believer in tribal self-governance. And 
frankly, Indian gaming, much more than our own appropriations, 
has underwritten tribal self-determination and tribal self-
governance. It has funded those things, and that is a very 
important aspect of Indian gaming.
    Chairman, most of the subjects that you mentioned, you have 
been holding a lot of hearings, and most of the subjects that 
you mentioned are, at least at some tribes, underwritten by 
Indian gaming revenues. We need greater Federal appropriations, 
perhaps, but Indian gaming revenues help out a lot.
    The sad thing is, and I tried to get this across in my 
written testimony, is that Indian gaming revenues have really 
plateaued. They have been pretty flat since about 2007. Unlike 
commercial gambling, commercial gaming operations and revenues 
continue to grow, especially when you consider racinos. Indian 
gaming has really started to plateau. This in some ways causes 
us a concern. I don't anticipate dramatic future growth. I 
think we have seen that the days of tremendous growth are 
probably behind us for Indian gaming. That means we are going 
to have to learn to live with the existing amounts of revenues.
    We continue in some ways to hope for increased Indian 
gaming, but we also are in an awkward position when a new 
gaming operation is proposed. Competition is bad and 
predictability is good, and existing gaming operations are very 
happy not to have competition. And we proceed with great 
caution and great care when someone asks us to take land into 
trust for a new gaming operation and we will continue to do 
that. We will exercise great scrutiny and we will always follow 
the law when we are asked to do that.
    So the next 25 years for Indian gaming I believe is 
uncertain. Nothing lasts forever. No great economic resource 
lasts forever, and I am concerned where we will be in another 
25 years. For now, Indian gaming remains a very, very important 
part of the picture on Indian reservations. It would be folly 
not to recognize that.
    With that, I will stop and await further questions. Thank 
you.
    [The prepared statement of Mr. Washburn follows:]

Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior
    Good afternoon Chairman Tester, Vice Chairman Barrasso, and Members 
of the Committee. My name is Kevin Washburn and I am the Assistant 
Secretary for Indian Affairs at the Department of the Interior 
(Department). Thank you for the opportunity to provide the Department's 
views at this oversight hearing on the Indian Gaming Regulatory Act 
(IGRA).
Indian Gaming 25 Years After the Enactment of IGRA
    As this Committee is well aware, in 1987 the Supreme Court affirmed 
the right of tribes to conduct gaming on their reservations. The 
following year, Congress enacted IGRA to establish a federal regulatory 
framework for the conduct of gaming on Indian lands. When IGRA was 
enacted, non-Indian casino gaming was limited primarily to Nevada and 
New Jersey. At that time, tribal gaming on Indian lands generated 
estimated annual revenues of between $100 million and $500 million.
    More than twenty-five years later, much has changed. Tribal gaming 
on Indian lands since 1987 has grown dramatically. However, since 2007, 
Indian gaming revenues have grown very little and have stabilized in 
the range of $26 to $28 billion annually. Commercial (non-Indian) 
gaming is now much larger than Indian gaming, and the commercial gaming 
industry continues to grow, particularly when so-called ``racinos'' are 
included. In sum, while Indian gaming growth appears to have plateaued, 
commercial gaming continues to grow. Put another way, Indian gaming's 
overall share of the gaming market is decreasing.
    After 25 years, the benefits of Indian gaming are readily apparent. 
Indian gaming revenues are important for tribal governments. Gaming 
revenues eclipse, by a large measure, all federal appropriations for 
Indian tribes. Gaming revenues are devoted to every aspect of tribal 
communities--from housing to elder care to language revitalization and 
job training. Gaming provides employment opportunities and spurs 
business development in many communities that otherwise struggled 
through generations of poverty. While Indian gaming is not a panacea to 
poverty for all tribal communities, it has dramatically righted the 
trajectory for many tribes and helped them to become much more 
successful and self-sufficient.
    While we attribute much of the improvement in the delivery of 
governmental services in Indian country in recent decades to the 
development of the federal policy favoring tribal self-governance, 
Indian gaming has helped to underwrite many of the successes we have 
seen. Indian gaming revenues have helped to develop tribal governmental 
capacities in myriad ways. For example, many members of the newest 
generation of tribal lawyers, doctors and other professionals were 
supported by scholarships made possible through Indian gaming.
    While most of the Indian gaming revenues are used to pay wages, the 
costs of financing, and other ordinary costs of doing business, the 
profits from Indian gaming are used primarily to improve the welfare of 
Indian people. Indian gaming, after all, is required by law to be owned 
and licensed by tribal governments and to primarily benefit the Indian 
tribe and Congress has specified that Indian gaming revenues may be 
used only for specific purposes.
    While tribes remain leaders in the industry and continue to 
dominate in some regional markets, they are facing more and more 
competition from state-licensed commercial casinos. In contrast to 
governmental revenues developed by Indian gaming, the profits of non-
Indian commercial casinos are used differently. Commercial casinos are 
ordinary ``for profit'' businesses and they have a different legal 
duty: to enrich their shareholders. It is thus disappointing to us, in 
some ways, that we see growth in Indian gaming slowing and commercial 
gaming taking an ever larger share of the gaming market.
    We frequently face a misperception that tribes are acquiring land 
and opening gaming facilities at a fast pace. The growth numbers alone 
belie this argument. Of the over 1,700 successful trust acquisitions 
processed since the beginning of the Obama administration in 2009, 
fewer than 15 were for gaming purposes and even fewer were for off-
reservation gaming purposes. Also, it is not uncommon for a decade of 
thoughtful deliberation to pass between the time a tribe applies for 
land into trust for gaming and the Department decides on the 
application and, if successful, takes the land into trust.
    The numbers of gaming operations provided by the NIGC in its annual 
revenue reports confirm that the number of gaming operations has 
remained flat in recent years. In 2009, the NIGC announced in its 
annual gaming revenue report that there were 419 Indian casinos 
operating nationwide, and then it announced 422 in 2010, 421 in both 
2011 and 2012, and 416 in 2013. In sum, concerns about dramatic growth 
of Indian gaming are unfounded today.
    In contrast, commercial non-Indian gaming casinos and racinos have 
grown considerably during the same time period. Expanding commercial 
gaming makes tribes nervous.
    Of course, not all of the potential new competition comes from 
commercial casinos. Some of the competition comes from other tribes. 
Though new Indian casinos are rare, they too can cause disruption to 
existing facilities. Competition can be tough in maturing markets with 
slower growth. The potential for disruption to existing facilities is a 
concern that we understand and it is one of the reasons we follow the 
law so carefully in making decisions. Because of the potential impact 
on tribes, we know that we must always be very cautious in authorizing 
new Indian gaming opportunities and that we should do so only with 
clear legal authorization and careful adherence to existing regulatory 
procedural requirements.
The Regulatory Framework of IGRA
    As you know, IGRA creates a regulatory scheme that seeks to balance 
tribal, state, and federal interests in regulating gaming activities on 
Indian lands: Class I gaming is regulated exclusively by Indian tribal 
governments; Class II gaming regulation is reserved to tribal 
governments in cooperation with the federal government; and, Class III 
gaming is regulated primarily by tribal governments in cooperation with 
the federal government and, to the extent negotiated in an approved 
compact, a state government. The Department has certain roles in the 
regulation of Indian gaming; other roles are performed by the National 
Indian Gaming Commission and tribal or state gaming regulators. 
Specifically, under IGRA the Department of the Interior reviews tribal-
state gaming compacts and fee-to-trust applications for gaming. The 
NIGC reviews tribal gaming ordinances and management contracts and 
retains civil enforcement authority for violations of IGRA.
    With regard to compacts, IGRA carefully describes the topics to 
address in a compact. Congress specifically named six subjects related 
to the operation and regulation of Class III gaming activity that may 
be addressed in a compact, and also included a limited catchall 
provision authorizing the inclusion of provisions for ``any other 
subjects that are directly related to the operation of [Class III] 
gaming activities.'' The Department closely scrutinizes tribal-state 
gaming compacts and disapproves compacts that do not squarely fall 
within the topics delineated in IGRA. For example, Class II gaming is 
not an authorized subject of negotiation for Class III compacts. The 
regulation of Class II gaming is reserved for tribal and federal 
regulation.
    As the Committee is well aware, section 20 of IGRA generally 
prohibits gaming on lands acquired in trust after IGRA's enactment on 
October 17, 1988, and contains only a few exceptions. These limited and 
narrow exceptions operate to provide equal footing for certain tribes 
that were disadvantaged in relation to land. These include: the initial 
reservation of an Indian tribe acknowledged by the Secretary under the 
Federal acknowledgment process, restored lands for tribes restored 
after termination, and lands acquired in settlement of a land claim. In 
other cases, off-reservation trust lands are eligible for gaming only 
if the Department makes a two-part determination that gaming on the 
parcel is in the best interest of the tribe and not detrimental to the 
surrounding community and the Governor of the State concurs in that 
determination. In the 25 years since the passage of IGRA, only 8 times 
has a governor concurred in a positive two-part determination.
    The previous Administration promulgated extensive regulations to 
implement section 20 and the Department continues to apply these 
rigorous standards to every gaming decision. Also, the Department's 
review of trust applications--regardless of location or the activity 
the Tribe proposes to acquire the land for--is lengthy and deliberate. 
For trust acquisitions, the Department carefully considers the concerns 
of all stakeholders, including, of course, the applicant tribe, but 
also the potentially impacted state, local and tribal governments and 
the public at large. The Department actively solicits the views of 
these stakeholders to insure that the decision is a fair decision for 
the entire community.
    It is important to note that the public, state and local 
governments, and other tribal governments have many opportunities to 
participate throughout the trust-acquisition process. Prior to deciding 
whether to place the land into trust, the Department seeks comment from 
state and local governments; the public and local governments are 
notified and given an opportunity to provide input during the 
environmental review process under the National Environmental Policy 
Act (NEPA). Moreover, before off-reservation land can be found eligible 
for gaming through the two-part determination process, the Department 
requests additional comments from nearby tribal, state and local 
governments. Among other interests, the Department is interested in the 
economic consequences to the local community. Of course, in most cases, 
significant cooperation occurs between tribes and state and local 
governments in light of needs for adequate water treatment at new 
facilities, resolving traffic, transportation and other infrastructure 
issues, and sometimes emergency services. As a result of all of this 
communication, we find that the interests of tribes and their 
surrounding communities often become accommodated, if not aligned.
Conclusion
    The future of Indian gaming is difficult to predict. Revenues from 
Indian gaming have had a strongly positive impact on tribal 
governments, helping tribes to build capacity and develop governmental 
infrastructure. That said, few economic resources remain productive 
forever. We continue to encourage gaming tribes to diversify 
economically, just as we encourage non-gaming tribes to be creative in 
seeking out economic development opportunities.
    This concludes my prepared statement. Thank you for inviting the 
Administration to testify. I am happy to answer any questions the 
Subcommittee may have concerning our role with respect to Indian 
gaming.

    The Chairman. Thank you for your testimony, Kevin. With 
that, Jonodev, you may proceed.

STATEMENT OF JONODEV OSCEOLA CHAUDHURI, VICE CHAIRMAN, NATIONAL 
                    INDIAN GAMING COMMISSION

    Mr. Chaudhuri. Thank you, Chairman. Good afternoon, 
Chairman Tester and Vice Chairman Barrasso and Senators McCain 
and Heitkamp and other members of the Committee.
    My name is Jonodev Osceola Chaudhuri. I am a member of the 
Muscogee Creek Nation and I serve as the Acting Chairman of the 
National Indian Gaming Commission. Thank you for providing the 
NIGC with this opportunity to testify today at this oversight 
hearing.
    For a more detailed discussion of the NIGC and its role 
pursuant to IGRA, I direct you to our written testimony that we 
have submitted.
    I am honored by the Vice Chairman's congratulations; I am 
deeply honored to receive the very recent nomination from the 
President. I do look forward to a confirmation hearing at some 
point. But today I am here to provide a brief overview of the 
agency and discuss our thoughts on regulation of the Indian 
gaming industry in the future.
    Since being appointed to the commission over 10 months ago, 
I have worked closely with Associate Commissioner Dan Little, 
who is in the audience today, and commission staff, to build on 
the initiatives of the last four years. The NIGC is committed 
to upholding the statutory authority and responsibilities to 
oversee the regulation of Indian gaming and where appropriate 
and necessary, take enforcement action. But the NIGC recognizes 
that it cannot fulfill its responsibilities alone. As the 
primary day to day regulators on the ground, tribal governments 
and their regulatory bodies have the greatest interest in 
safeguarding an industry that has greatly contributed 
invaluable improvements and opportunities to their communities. 
It is a testament to the leadership of tribal governments, 
their citizens and the work of their dedicated employees that 
the Indian gaming industry has remained protected and stable.
    In 2013, tribal facilities generated $28 billion in gross 
gaming revenue as compared to $27.9 billion in 2012. Through 
collaboration with all levels of gaming regulators, the NIGC 
will continue to ensure the protection and success of the 
gaming industry through diligent professional oversight and 
enforcement.
    To accomplish IGRA's stated policy goals, the NIGC 
continues to be proactive in several areas, including 
consultation, ongoing regulatory and operational review, 
training and technical assistance and agency accountability. 
The agency supports the Administration's commitment to Indian 
Country, in terms of nation building, honoring tribal 
sovereignty and self-determination and engaging in meaningful 
consultation with tribes. It is through meaningful government 
to government consultation that the NIGC will be able to make 
well-informed, fully considered decisions concerning 
regulations and policies.
    So far this year, the commission has conducted four 
separate consultation sessions which were attended by 
representatives of more than 36 tribes. In addition to 
consulting and working with tribes, we also work with other 
regulatory bodies, including State agencies, such as those in 
the Department of Gaming and the Nevada Gaming Control Board, 
to name a few.
    We do this to promote the integrity of Indian gaming. 
Successful regulation depends on a properly trained workforce, 
and the NIGC views training and technical assistance as a 
valuable component to the agency's mission. We appreciate the 
reference to the ACE Initiative made in opening statements 
today. We deem the ACE Initiative as a pillar of our success 
over the last few years. Our written testimony goes into detail 
regarding the ACE Initiative. But bottom line, the idea is to 
invest resources into working with tribes and tribal regulators 
on the front end to minimize compliance issues on the back end.
    As to the next 25 years of the industry, we recognize that 
gaming will continue to play a significant role in many tribes' 
nation-building efforts in the foreseeable future. A 
fundamental policy of IGRA is ``to provide 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.'' The NIGC understands how important 
gaming is to tribal economic development and we are committed 
to maintaining our ability to safeguard the industry, so that 
the policy goals of IGRA are fully met.
    Additionally, the NIGC realizes that constant technological 
advances are not only changing the face of Indian gaming but 
also necessitate that the NIGC continue to adapt to meet the 
regulatory needs of the industry. As tribal gaming evolves, the 
NIGC wants to continue to play a relevant role and ensure it 
can meet the demands of new regulatory issues in a timely 
manner. This desire has helped guide all recent agency 
activity, great and small.
    A perfect example of this is our use of our recent 
headquarters relocation to upgrade existing IT capabilities. 
Although it is impossible to predict the nature of the industry 
in five years, let alone 25, we are confident that Indian 
gaming in the future will continue to be shaped by many of the 
same forces that have shaped it since the enactment of IGRA. 
Specifically, tribes will continue to drive operational and 
technological innovation within relevant legal parameters and 
consistent with their respective cultural values and business 
landscapes. Sound regulation helps provide a level playing 
field for each tribe to consider whether and how to conduct 
gaming, given the respective needs and opportunities.
    We at the NIGC are committed to ensuring that we regulate 
in a way that allows all gaming facilities, no matter how big 
or small, to reach their full business potential and provide 
the greatest contribution to their economic development and 
nation-building efforts. The NIGC is committed to working 
closely with this Committee and with Indian Country to ensure 
the integrity of Indian gaming.
    Thank you again, Chairman Tester, Vice Chairman Barrasso, 
and members of the Committee. I appreciate your time and 
attention today. I am happy to answer any questions that you 
may have.
    [The prepared statement of Mr. Chaudhuri follows:]

    Prepared Statement of Jonodev Osceola Chaudhuri, Vice Chairman, 
                   National Indian Gaming Commission
    Thank you Chairman Tester, Vice Chairman Barrasso, and members of 
the Committee for inviting me to testify today. It is an honor to 
appear before you for the first time in my capacity as Vice Chairman of 
the National Indian Gaming Commission (NIGC or Commission).
    Over the past ten months, I have worked closely with Associate 
Commissioner Dan Little and Commission staff to build on the 
initiatives of the last four years.
    Today I will provide you an overview of the status and future of 
Indian gaming with an emphasis on the regulation of the industry.
The National Indian Gaming Commission--Powers, Duties, and 
        Responsibilities
    The National Indian Gaming Commission (NIGC) was established by the 
Indian Gaming Regulatory Act (IGRA) in order to provide Federal civil 
regulatory oversight of Indian gaming. The NIGC is composed of three 
members--the Chairperson and two associate commissioners. The 
Chairperson is appointed by the President and must be confirmed by the 
Senate. The associate commissioners are appointed by the Secretary of 
the Interior. Under IGRA, at least two of the three commissioners must 
be enrolled members of federally recognized Indian tribes, and no more 
than two members may be of the same political party. Each commissioner 
serves a three-year term, but a commissioner may serve after the 
expiration of his or her term until a successor has been appointed.
    IGRA establishes three classes of Indian gaming, each of which has 
a different regulatory structure. Class I gaming is defined as 
traditional and social gaming for minimal prizes. Class I gaming is 
regulated exclusively by tribes.
    Class II gaming is defined as the game of chance commonly known as 
bingo (whether or not electronic, computer, or other technologic aids 
are used in connection therewith) and, if played in the same location 
as bingo, pull tabs, punch boards, tip jars, instant bingo, or other 
games similar to bingo. Class II also includes non-banking card games, 
such as poker, if such card games: (1) are explicitly authorized by the 
laws of the State, or (2) are not explicitly prohibited by the laws of 
the State, and are played at any location in the State, but only if 
such card games are played in conformity with those laws and 
regulations (if any) of the State regarding hours or periods of 
operation of such card games of limitations on wagers or pot sizes in 
such card games.
    IGRA also specifies that Class II does not include slot machines or 
electronic facsimiles of any game of chance. A tribe may conduct, 
license, and regulate Class II gaming if the state in which the tribe 
is located permits such gaming for any purpose and the tribal 
government adopts a gaming ordinance which has been approved by the 
NIGC Chair. Class II gaming is regulated by tribes with oversight by 
the NIGC. States have no role in the regulation of Class II gaming.
    Class III gaming includes all forms of gaming that are not Class I 
or II, such as black jack, slot machines and craps. Class III is 
generally referred to as full-scale casino style gaming. Class III 
gaming may be lawfully conducted by an Indian tribe if: (1) the state 
in which the tribe is located permits that particular type of Class III 
gaming for any purpose by any person or organization; (2) the tribe and 
the state have negotiated a compact that has been approved by the 
Secretary of the Interior; and, (3) the tribe has adopted a tribal 
gaming ordinance that has been approved by the NIGC. The Act 
contemplates that the regulation of Class III gaming will be negotiated 
by the tribes and states in a compact. However, given that the NIGC 
must approve and provide regulatory oversight of items in the tribe's 
gaming ordinance and Class III management contracts, it too has a role 
in the regulation of Class III gaming.
    Under IGRA, the NIGC has several specific responsibilities. First, 
the NIGC Chairman must approve all tribal gaming ordinances before 
Indian tribes may operate gaming on Indian lands. Also, if a tribe 
wishes to use an outside contractor to manage its gaming operation, the 
NIGC Chairman must first approve the management contract. In 
conjunction with such review, the principals of each management company 
must pass a detailed background investigation conducted by NIGC 
investigators. IGRA also provides authority for the NIGC to inspect 
gaming operations and monitor the tribes' use of gaming revenue. The 
NIGC Chairman has the authority to bring enforcement actions and assess 
civil fines against tribes or outside managers for any violation of 
IGRA, the NIGC's regulations, or an approved tribal gaming ordinance. 
Appeals from the NIGC Chairman's decisions regarding tribal gaming 
ordinances, management contracts, and enforcement actions are heard by 
the full Commission. Regulations and subpoenas are also issued by the 
full Commission. IGRA also contains criminal provisions related to 
theft from gaming operations on Indian lands. However, since the NIGC 
has no criminal law enforcement authority, IGRA directs the agency to 
report any potential criminal violations to the appropriate law 
enforcement agency. These responsibilities enable the agency to fulfill 
its statutory mission to protect tribes from organized crime and other 
corrupting influences and ensure that tribes are the primary 
beneficiary of the gaming activity.
    In addition to the duties assigned to NIGC, IGRA also provides a 
role for the Secretary of the Interior. Interior is charged with 
approving tribal-state gaming compacts, issuing Class III gaming 
procedures, and approving tribal revenue allocation plans. In many 
instances, the Secretary must take land into trust before a parcel of 
tribal land can be eligible for gaming under IGRA. Typically, Interior 
will only take land into trust for gaming purposes if it first 
determines that the land would be eligible for gaming. In 2008, 
Interior promulgated regulations establishing procedures for 
determining whether or not any of IGRA's exemptions for allowing gaming 
on trust lands acquired after October 17, 1988, would apply.
    Under IGRA and the NIGC regulations, each Indian tribe must license 
every primary management official and key employee in its gaming 
operations, as NIGC regulations define those terms. Before issuing such 
licenses, the tribes must conduct individual background investigations 
that include a search of the FBI's criminal history database. One 
method of accessing such files is through the NIGC. A tribe may enter 
an agreement with the NIGC whereby the tribe sends its fingerprint 
cards to the NIGC, and the NIGC then forwards all cards received to the 
FBI for criminal history searches. The NIGC and the FBI operate under a 
memorandum of understanding for these purposes.
    Indian gaming can only occur on Indian lands, which IGRA defines 
as: All lands within the limits of an Indian reservation; and any lands 
title to which is either held in trust by the United States for the 
benefit of any Indian tribe or individual subject to restriction by the 
United States against alienation and over which an Indian tribe 
exercises governmental power. Under IGRA, gaming is prohibited on lands 
acquired by the Secretary of the Interior into trust for the benefit of 
an Indian tribe after October 17, 1988, unless the land falls within 
certain exceptions listed in that provision.
    To determine whether lands are Indian lands on which a Tribe may 
conduct gaming, the Department of the Interior and the NIGC entered 
into a memorandum of understanding which establishes a collaborative 
process for determining whether a Tribe may conduct gaming on specific 
parcels. Generally, Interior will determine whether lands are 
reservation lands and Interior and NIGC will collaborate on whether the 
Tribe has jurisdiction over those lands. If the lands are not within a 
reservation, then Interior and NIGC will collaborate to determine 
whether the lands meet the second test of trust or restricted lands. If 
the lands qualify as Indian lands under IGRA but are ineligible for 
gaming, the NIGC or the United States Attorney may close the facility. 
If the lands are not Indian lands, the state and local laws apply and 
jurisdiction over gaming on such lands is vested in the particular 
state where the parcel is located.
    IGRA restricts the uses of tribal gaming revenues to primarily 
governmental purposes. However, if gaming revenues can adequately cover 
such needs, then the tribe also may make per capita payments to 
individual tribal members from the remaining proceeds (taxable as 
personal income), provided such distributions are made pursuant to a 
revenue allocation plan approved by the Secretary of the Interior. Many 
gaming tribes make no per capita payments at all.
    The NIGC is funded entirely by fees paid from the Indian gaming. 
The NIGC's headquarters office is located at 90 K Street, NE, in 
Washington, D.C. The agency has six regional offices: Portland, OR; 
Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK; Oklahoma City, 
OK; and Washington, D.C. The NIGC's region offices house NIGC staff in 
the Compliance Division, making it possible to have regular contact 
with tribes at their gaming locations.
    Over the last five years, the Commission has identified and 
launched a series of major initiatives consistent with its statutory 
mission. These included consultation and relationship building, 
conducting a comprehensive regulatory review, providing technical 
assistance and training, and improving agency operations. In advancing 
these initiatives, the agency has changed its consultation process to 
have a dialogue with tribes before regulatory changes are implemented 
and before the rule-making process is initiated. Further, the 
Commission revised its training program to more closely align with the 
needs of the regulated community. To that end, the Commission reviewed 
more than 20 regulations or potential regulations, utilizing an 
informal pre-rulemaking process that respected tribal sovereignty by 
soliciting tribal involvement early in the process. Finally, the 
Commission created better communication systems, developed practices 
and policies that allow employees to better perform their duties, and 
created a line-item-specific budget that allows it to be more fiscally 
responsible.
The State of the Industry
    Currently, Indian gaming is being conducted in 28 states by 243 of 
the 566, federally recognized tribes. Tribes have used gaming revenue 
both to generate jobs and to provide fundamental services to their 
communities, such as health care, housing, basic infrastructure and 
education, to name a few. In addition, tribes both through their 
compacts and charitable outreach regularly contribute to surrounding 
communities to support infrastructure, emergency services, and other 
community programs such as schools. While tribal gaming generates 
modest to considerable revenues for individual tribes, tribal gaming 
facilities in some regions provide jobs in areas otherwise suffering 
from high unemployment.
    As the primary day-to-day regulators on the ground 24 hours a day, 
7 days a week, tribal governments and their regulatory bodies have the 
greatest interest in safeguarding an industry that has greatly 
contributed to invaluable improvements to their communities. It is a 
testament to the leadership of tribal governments, their citizens, and 
the work of their dedicated employees that the Indian gaming industry 
has remained protected and stable. In 2013, tribal facilities generated 
$28 billion in gross gaming revenue as compared to $27.9 billion in 
2012. With continued collaboration, the NIGC will work with tribal 
governments and their employees to ensure the continued protection and 
success of the industry through diligent, professional oversight and 
enforcement. Accordingly, while collaborative results are desirable, 
the agency is committed to upholding the statutory authority and 
responsibilities of my position to oversee the regulation of Indian 
gaming, and where appropriate, take enforcement action.
Indian Gaming--The Next 25 years
    A fundamental policy of IGRA is ``to provide 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,'' to ensure the regulatory and statutory compliance of all 
tribal gaming facilities, and to safeguard tribal gaming operations 
from organized crime and corrupting influences. To accomplish these 
goals the NIGC continues to be proactive in several areas including: 
Consultation and Building Relationships, ongoing Regulatory Review, 
Training and Technical Assistance, and Agency Accountability.
    The NIGC realizes that constant technologic advances are not only 
changing the face of Indian gaming, but also necessitate that the NIGC 
continue to adapt to meet the regulatory needs of the industry. As 
tribal gaming evolves, the NIGC wants to continue to play a relevant 
role in tribal gaming and ensure that it can meet the demands of new 
regulatory issues in a timely manner.
    Indian gaming is means by which tribes can achieve greater self-
determination and self-sufficiency. The NIGC understands how important 
gaming is to tribal economic development and we are committed to 
maintaining our ability to safeguard the industry so that the policy 
goals of IGRA are fully met.
1. Consultation and Building Relationships
    The agency supports the Administration's commitment to Indian 
country in terms of nation building, honoring tribal sovereignty and 
self-determination, and engaging in meaningful consultation with 
tribes. The Commission developed a new government-to-government 
consultation process in line with President Obama's November 5, 2009 
Memorandum on Tribal Consultation, which directs federal agencies to 
comply with Executive Order 13175, ``Consultation and Coordination with 
Tribal Governments.''
    It is through meaningful government-to-government consultation that 
the NIGC will be able to make well informed, fully considered decisions 
concerning regulations and policies. This year the Commission conducted 
four separate consultations sessions. These sessions were attended by 
representatives of more than 36 tribes.
    The NIGC makes a point of attending the meetings and conferences 
held by national and regional tribal associations, such as the Great 
Plains Indian Gaming Association (GPIGA), the Oklahoma Indian Gaming 
Association (OIGA), the Washington Indian Gaming Association (WIGA), 
the California Nations Indian Gaming Association (CNIGA), the Midwest 
Alliance of Sovereign Tribes (MAST), New Mexico Indian Gaming 
Association (NMIGA), National Indian Gaming Association (NIGA), 
National Congress of American Indians (NCAI) National Tribal Gaming 
Commissioners/Regulators (NTCG/R) and United South and Eastern Tribes 
(USET).
    The Commission is also committed to strengthening relationships and 
building new ones. In addition to working with tribes, we also will 
work with other regulatory bodies such as the Nevada Gaming Control 
Board and the New Jersey Division of Gaming Enforcement to promote the 
integrity of Indian gaming.
2. Regulatory Review
    In November of 2010, the Commission commenced a full-scale 
regulatory review to examine the effectiveness of our regulations and 
identify any areas for improvement. Through a Notice of Inquiry 
followed by more than 50 consultations with tribes and numerous 
comments from the public, the Commission considered 20 regulations or 
potential regulations with 17 of those being adopted and implemented 
and one being repealed. It is our belief that reviews of regulations 
should be done regularly so that the NIGC is responsive to changes in 
the gaming industry and not serve as a barrier to progress.
3. Training and Technical Assistance
    Successful regulation depends upon a properly trained workforce, 
and the NIGC views training and technical assistance as a valuable 
component of the NIGC's mission. Further, the Commission is statutorily 
required to provide technical assistance to tribes. NIGC recognizes 
that Tribes have a vested interest in their gaming operations. They are 
an important source of funding for government programs and are often 
the largest employer of tribal citizens and their neighbors. We also 
recognize that in the 26 years since IGRA was passed, Tribes have 
responded to their new role by creating sophisticated gaming regulatory 
bodies of their own.
    While the NIGC has an important regulatory role, Tribes are the on-
the-ground regulators of gaming. With over 5,410 tribal gaming 
regulatory employees nationwide it is a much more efficient use of 
resources to build their capabilities through training, technical 
assistance, and coordination, than to go it alone.
    To that end, we have been implementing the A.C.E. approach: 
Assistance, Compliance, and Enforcement. This approach prevents 
foreseeable problems through effective communication, training and 
technical assistance, and compliance efforts. The first step of this 
initiative is to provide assistance to achieve compliance with IGRA and 
the NIGC regulations. This means staying abreast of industry changes 
and communicating what they mean to gaming operators and regulators 
through more and better training. Last year, we provided 194 training 
events to 2751 participants. Currently this year we have provided 147 
of training events to 2140 participants. By working with tribal gaming 
regulators and sharing our knowledge, we increase the number of people 
who can extinguish issues before they become blazing problems.
    The second prong is Compliance. The Agency communicates with Tribes 
early in the process if there is a potential compliance issue and works 
with them to resolve any issues voluntarily.
    The Agency uses its final tool--enforcement action--when necessary.
    This three tiered approach ensures that the agency's statutory 
responsibilities are performed in an efficient manner by respecting the 
benefit of meaningful collaboration with tribes who are the primary 
regulators of Indian gaming and have a foremost interest in 
safeguarding tribal resources.
4. Agency Accountability
    As you know, the NIGC is funded by fees paid by the tribes engaged 
in Indian gaming. Being a good steward of the fees paid by the tribes 
has been a top priority of the Commission. We are committed to 
complying with all applicable laws, regulations, rules and executive 
orders so as to give this Committee and the tribes confidence that the 
NIGC is as concerned with how it runs its own operations as we are 
about how the tribes run their operations. Recently, the Commission 
undertook a comprehensive review of its budget and spending priorities. 
A guiding principle of the review and budgeting decisions was that the 
NIGC has a responsibility to use tribal resources wisely. As such, our 
agency expenditures need to be both fiscally responsible and 
transparent. We strive, consistent with applicable law, to be 
transparent with regard to the expenditures of tribal fees for the 
accomplishment of the NIGC's statutory responsibilities. The Commission 
is working to ensure that the agency is operating in a manner that uses 
these tribal resources most efficiently and effectively.
Conclusion
    The NIGC is committed to working closely with this Committee and 
Indian country to ensure the integrity of Indian gaming. Thank you 
again, Chairman Tester, Vice Chairman Barrasso and members of the 
Committee for your time and attention today. I am happy to answer any 
questions that you may have for me.

    The Chairman. Thank you, Jonodev.
    Anne-Marie, you are up. Thanks.

 STATEMENT OF ANNE-MARIE FENNELL, DIRECTOR, NATURAL RESOURCES 
               AND ENVIRONMENT, U.S. GOVERNMENT 
                     ACCOUNTABILITY OFFICE

    Ms. Fennell. Chairman Tester, Vice Chairman Barrasso and 
members of the Committee, I am pleased to be here today to 
provide preliminary observations on our ongoing review of the 
Indian Gaming Oversight.
    Over 25 years ago, the Indian Gaming Regulatory Act of 1988 
was enacted and serves as the primary Federal statute governing 
Indian gaming. Since that time, Indian gaming has become a 
significant revenue source for many tribes. In fiscal year 
2012, over 40 percent of federally-recognized tribes operated 
more than 420 gaming establishments across 28 States.
    My testimony today will describe our preliminary 
observations from our ongoing work that examines, (1) how 
Interior helps ensure compliance with IGRA through its review 
of tribal-State compacts; (2) how States and selected tribes 
regulate Indian gaming; and (3) how the National Indian Gaming 
Commission regulates and oversees Indian gaming and whether 
recent organizational changes have affected its oversight 
approach.
    First, Interior has a multi-step review process designed to 
help ensure that tribal-State compacts comply with IGRA 
provisions that may be contained in those compacts. Our review 
indicated that 78 percent of the compacts submitted to Interior 
for review since 1998 have been approved. While compacts 
approved by Interior contain similar provisions, they do vary 
in some respects, such as the types of revenue-sharing 
arrangements between States and tribes.
    Second, the roles of States and tribes in regulating Indian 
gaming are established in tribal-State compacts for Class 3 
gaming and tribal gaming ordinances for both Class 2 and 3. 
Based on our preliminary observations for three States that we 
have visited, Arizona, California and Oklahoma, we found that 
approaches to regulating Indian gaming varied, as seen through 
differences in the regulatory agency's organization, their 
funding and their staffing levels.
    For example, California divides its oversight 
responsibilities between two agencies, whereas Arizona and 
Oklahoma each have one agency.
    For the seven tribes we have visited so far, each has 
established tribal gaming commissions that perform various 
regulatory functions to help ensure that their gaming 
facilities are operating according to applicable tribal laws 
and regulations and compacts.
    Third, the commission plays an important role in regulating 
and overseeing Indian gaming and ensuring compliance with IGRA. 
Specifically, the commission monitors tribal gaming activities, 
inspects gaming premises and takes enforcement actions when 
necessary. In 2011, the commission implemented its Assistance, 
Compliance and Enforcement initiative, which emphasizes 
providing technical assistance to tribes to help achieve 
compliance with IGRA. According to commission officials, 
enforcement actions have decreased significantly in part as a 
result of this initiative.
    Also in 2011, the commission merged its enforcement and 
audits division into one compliance division, which commission 
officials said was done in part to emphasize compliance 
assistance under its initiative.
    In conclusion, Indian gaming has grown and evolved since 
IGRA was enacted. Our ongoing work over the next several months 
will continue to examine how tribes, States and the Federal 
Government oversee gaming activities within the important 
regulatory framework established by IGRA.
    Chairman Tester, Vice Chairman Barrasso, and members of the 
Committee, this completes my prepared statement. I would be 
pleased to respond to any questions you may have.
    [The prepared statement of Ms. Fennell follows:]

 Prepared Statement of Anne-Marie Fennell, Director, Natural Resources 
         and Environment, U.S. Government Accountability Office
INDIAN GAMING--Preliminary Observations on the Regulation and Oversight 
                            of Indian Gaming
Why GAO Did This Study
    Over the past 25 years, Indian gaming has become a significant 
source of revenue for many tribes, reaching $27.9 billion in 2012. At 
that time, about 240 of the 566 federally recognized tribes operated 
more than 420 gaming establishments ranging from bingo halls to 
multimillion dollar casinos across 28 states. IGRA, the primary federal 
statute governing Indian gaming, provides, among other things, a 
statutory basis for the regulation of Indian gaming to assure that it 
is conducted fairly and honestly. Tribes, states, Interior, and the 
National Indian Gaming Commission have roles in regulating or 
overseeing Indian gaming.
    This testimony is based on GAO's preliminary observations from 
ongoing work that examines (1) the process Interior uses to ensure 
compliance with IGRA through its review of tribal-state compacts and 
the types of provisions contained in these compacts; (2) how states and 
selected tribes regulate Indian gaming; and (3) how the Commission 
regulates and oversees Indian gaming and how, if at all, recent 
organizational changes have affected its regulatory or oversight 
approach.
    In its ongoing work, GAO analyzed compacts; visited three states 
and seven tribes (selected for geographic representations and revenue 
generation) to discuss the oversight of Indian gaming; reviewed 
Commission data on technical assistance and enforcement actions; and 
interviewed Interior and Commission officials. GAO will continue to 
collect information on these topics and produce a final report.
    GAO is not making any recommendations in this testimony.
What GAO Found
    The Department of the Interior (Interior) has a multistep review 
process designed to help ensure that compacts comply with the Indian 
Gaming Regulatory Act (IGRA). Such compacts are agreements between a 
tribe and state that governs the conduct of the tribe's Class III (or 
casino) gaming activities. Based on GAO's preliminary review, Interior 
has approved 78 percent (382) of the tribal-state compacts submitted 
since 1998. While the provisions in compacts approved by Interior are 
largely similar, they do vary in some respects, such as the terms of 
``revenue sharing'' arrangements established between states and tribes. 
For example, some compacts do not provide for revenue sharing with 
states, while some require tribes to share significant portions of 
revenue with states. The remaining 22 percent (106) of compacts 
reviewed were either (1) considered approved without action by the 
Secretary of the Interior, (2) withdrawn, or (3) disapproved by 
Interior for various reasons, such as when they were not consistent 
with IGRA.
    The roles of states and tribes in regulating Indian gaming vary and 
are established in two key documents: (1) compacts for Class III gaming 
and (2) tribal gaming ordinances, which provide the general framework 
for day-to-day tribal regulation of Class II (including bingo) and 
Class III gaming facilities. Based on GAO's preliminary observations of 
ongoing work, GAO found that the three states visited--Arizona, 
California, and Oklahoma--varied in their approaches to regulating 
Indian gaming, as seen through differences in their regulatory 
agencies' organization, staffing levels, and funding. For the seven 
tribes GAO visited, each has established tribal gaming commissions that 
perform various regulatory functions to help ensure that their gaming 
facilities are operated in accordance with tribal laws and regulations 
and, for Class III operations, the compact.
    The National Indian Gaming Commission (Commission), an independent 
commission created by IGRA within Interior, plays an important role in 
regulating and overseeing Indian gaming by ensuring that Class II and 
Class III gaming facilities comply with IGRA and applicable federal 
regulations and tribal ordinances or resolutions. Among other things, 
the Commission monitors tribal gaming activities, inspects gaming 
premises, and takes enforcement actions when necessary. In 2011, the 
Commission implemented its Assistance, Compliance, and Enforcement 
initiative, which emphasizes providing assistance to tribes to achieve 
compliance with IGRA. Through this initiative, the Commission has 
sought to provide technical assistance and training to tribes so that 
compliance issues may be resolved early and voluntarily without the 
need for enforcement actions. According to Commission officials, in 
part, as a result of this initiative, the number of enforcement actions 
has decreased significantly. Also in 2011, as part of a broader 
organizational realignment, the Commission merged its Enforcement and 
Audits divisions into one Compliance Division. According to Commission 
officials, this merger was deemed necessary, in part, to better support 
the Commission's emphasis on compliance assistance under its 
initiative.
    Chairman Tester, Vice Chairman Barrasso, and Members of the 
Committee:
    I am pleased to be here today to provide some preliminary 
observations from our ongoing review of Indian gaming oversight for 
this committee. Over the past 25 years, Indian gaming has become a 
significant source of revenue for many tribes. In fiscal year 2012, the 
Indian gaming industry generated revenues totaling $27.9 billion and 
included 420 gaming establishments in 28 states.
    The Indian Gaming Regulatory Act (IGRA) was enacted in 1988 to 
provide a statutory basis for the regulation of gaming on Indian lands. 
IGRA created three classes of gaming and sets out regulatory 
responsibilities for tribes, states and the federal government. Class I 
gaming consists of social games played solely for prizes of minimal 
value or traditional gaming played in connection with tribal ceremonies 
or celebrations. This type of gaming is within the exclusive 
jurisdiction of the tribes. Class II gaming includes bingo, games 
similar to bingo, and certain card games. Class III gaming includes all 
other types of games, including slot machines, craps, and roulette. 
Class II and Class III are subject to federal regulation or oversight; 
however, Class III is also subject to state regulation to the extent 
specified in compacts between the tribe and state that allow such 
gaming to occur. Compacts are agreements between the tribe and state 
that establish the terms for how a tribe's Class III gaming activities 
will be operated and regulated, among other things. The Secretary of 
the Interior (Secretary) approves compacts and must publish a notice in 
the Federal Register before they go into effect.
    IGRA also created the National Indian Gaming Commission 
(Commission), a commission within the Department of the Interior 
(Interior), and charged it with regulating and overseeing various 
aspects of Indian gaming. The Commission is composed of a Chair, 
appointed by the President and confirmed by the Senate, and two 
associate commissioners, appointed by the Secretary. The Commission 
maintains its headquarters in Washington, D.C. and has seven regional 
offices and three satellite offices and it has approximately 100 full-
time employees. To help ensure compliance with IGRA and its 
implementing regulations, the Commission engages in various activities 
to monitor the work of tribal gaming regulators--such as examining 
records of gaming operations, inspecting gaming facilities, and 
assessing tribe's compliance with minimum internal control standards 
for Class II gaming. \1\ In addition, the Chair reviews and approves 
various documents related to gaming operations, including tribal 
ordinances or resolutions adopted by a tribe's governing body. \2\ In 
2011, the Commission reorganized its oversight program by consolidating 
its Enforcement and Audit divisions into a single Compliance Division.
---------------------------------------------------------------------------
    \1\ Although the Commission's regulations establishing minimum 
internal control standards applied to both Class II and Class III, in 
2006, a federal circuit court ruled that IGRA did not authorize the 
Commission to issue regulations establishing minimum internal control 
standards for Class III gaming. Colorado River Indian Tribes v. Nat'l 
Indian Gaming Comm'n, 466 F.3d 134 (D.C. Cir. 2006).
    \2\ 2While IGRA refers to both tribal ordinances and resolutions, 
this testimony will use the term tribal ordinances.
---------------------------------------------------------------------------
    This testimony reflects our preliminary observations from our 
ongoing review that examines (1) the process Interior uses to help 
ensure compliance with IGRA through its review of compacts and the 
types of provisions contained in these compacts; (2) how states and 
selected tribes regulate Indian gaming; and (3) how the Commission 
regulates and oversees Indian gaming and how, if at all, recent 
organizational changes have affected its regulatory or oversight 
approach.
    To determine the process Interior uses to help ensure compliance 
with IGRA through its review of compacts and the provisions contained 
in these compacts, we obtained a list from Interior of all Indian 
gaming compacts in effect as of July 2014 and analyzed the compacts to 
identify key provisions, including those provisions related to tribal 
and state regulation. We also obtained from Interior a list of all 
compact decisions (e.g., approved, disapproved) from 1998 to the 
present. We are in the process of verifying the accuracy of this list. 
We also examined written guidance and other relevant documentation 
describing Interior's process for reviewing gaming compacts and we 
interviewed agency officials about how this review process helps ensure 
compliance with IGRA.
    To determine how states and selected tribes regulate Indian gaming, 
for our ongoing review of Indian gaming oversight, we are in the 
process of contacting all 28 states that have Indian gaming operations. 
We are collecting information about how each of the 28 states oversees 
Indian gaming including information on the states' regulatory 
organizations, staffing, funding and expenditures, and the types of 
monitoring and enforcement activities conducted by state agencies. For 
our ongoing review, we are visiting 6 states--Arizona, California, 
Michigan, New York, Oklahoma, and Washington. We chose these states to 
provide geographic representation and because they are among the states 
with the greatest revenue generated from Indian gaming. We have 
completed visits to Arizona, California, and Oklahoma, which have about 
45 percent of all Indian gaming operations. \3\ We are limiting the 
discussion of our site visits to these three states for our preliminary 
observations in this testimony. We are in the process of contacting the 
remaining 22 states by telephone. Given that there are over 200 tribes 
that conduct gaming, we will not be able to obtain information that is 
representative of all gaming tribes. Rather, for each of the 6 states 
that we visit, we are interviewing officials from at least one or two 
federally recognized tribes with gaming operations regarding their 
approaches to regulating Indian gaming. \4\ Our discussion today will 
focus on 7 tribes that we have already visited. \5\
---------------------------------------------------------------------------
    \3\ While the number of gaming establishments was 420 in 2012, as 
of July 7, 2014, the Commission reported 477 gaming establishments. 
About 45 percent of the gaming establishments (216 out of 477) were 
located in Arizona, California, and Oklahoma.
    \4\ IGRA only authorizes federally recognized tribes--those 
recognized by the Secretary of the Interior as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians--to conduct gaming activities.
    \5\ As of this testimony, we have visited the Salt River Pima-
Maricopa Indian Community and the San Carlos Apache Tribe in Arizona; 
Shingle Springs Band of Miwok Indians, United Auburn Indian Community 
of the Auburn Rancheria, Yocha Dehe Wintun Nation in California; and 
Chickasaw Nation and the Muscogee (Creek) Nation in Oklahoma.
---------------------------------------------------------------------------
    To determine how the Commission regulates and oversees Indian 
gaming and how, if at all, recent organizational changes have affected 
its regulatory and oversight approach, for our ongoing review we are in 
the process of collecting information on the Commission's policies and 
procedures related to its regulation and oversight of Indian gaming. 
Also, for fiscal years 2004 through 2013, we plan to obtain and analyze 
data from the Commission about (1) technical assistance and training 
provided to tribes, (2) monitoring activities and enforcement actions 
taken, and (3) tribal compliance rates. We are also obtaining 
information about the Commission's recent consolidation of its 
Enforcement and Audit divisions into a Compliance Division, including 
impacts of this consolidation, if any, on the Commission's regulatory 
and oversight approach.
    We are conducting our ongoing work in accordance with generally 
accepted government auditing standards. Those standards require that we 
plan and perform the audit to obtain sufficient, appropriate evidence 
to provide a reasonable basis for our findings and conclusions based on 
our audit objectives. We believe that the evidence we plan to obtain 
will provide a reasonable basis for our findings and conclusions based 
on our audit objectives. We provided a draft of this statement to 
Interior and the Commission for their review. The Commission provided 
technical comments which we incorporated as appropriate.
Background
    Since fiscal year 1995, revenue from Indian gaming has grown from 
$8.2 billion to $27.9 billion in fiscal year 2012 (see fig. 1). In 
fiscal year 2012, about 240 of the 566 federally recognized tribes 
operated more than 420 Indian gaming establishments across 28 states. 
These establishments included a broad range of operations, from tribal 
bingo to multimillion dollar casino gaming facilities. Of these 
establishments, a few large operations account for a major portion of 
the revenue.


    IGRA is the primary federal statute governing Indian gaming. \6\ 
IGRA provides, among other things, a statutory basis for the regulation 
of Indian gaming to shield it from corrupting influences, assure that 
gaming is conducted fairly and honestly by both the operators and the 
players, and ensure that tribes are the primary beneficiaries of gaming 
operations. The act establishes the following three classes of gaming.
---------------------------------------------------------------------------
    \6\ Pub. L. No. 100-497, 102 Stat. 2467 (1988).

   Class I gaming consists of social gaming solely for nominal 
        prizes or traditional gaming played in connection with tribal 
        ceremonies or celebrations and is regulated solely by tribes 
---------------------------------------------------------------------------
        and not subject to IGRA.

   Class II gaming includes bingo, pull-tabs, \7\ punch boards, 
        \8\ and certain card games \9\ and is regulated by the tribes 
        and the Commission.

    \7\ A pull-tab is a gambling ticket that is sold as a means to play 
a pull-tab game. The object of the ticket is to open the perforated 
windows on the back of the ticket and match the symbols inside the 
ticket to the winning combinations on the front of the ticket. The 
winning pull-tab ticket is turned in for a monetary prize.
    \8\ A punch board is a small board full of holes in which each hole 
contains a slip of paper with symbols printed on it; a gambler pays a 
small sum of money and pushes out a slip in the hope of obtaining one 
that entitles the gambler to a prize.
    \9\ Class II card games are nonbanking card games that the state 
explicitly authorizes, or does not explicitly prohibit, and are played 
legally elsewhere in the state, and are played in conformity with state 
laws and regulations, if any, regarding hours, periods of operation, 
and limitations on wagers and pot sizes.

   Class III gaming includes all other forms of gaming, 
        including casino games and slot machines, and although both 
        Interior and the Commission play a role in overseeing certain 
        aspects of Class III gaming, it is regulated by the tribes and 
---------------------------------------------------------------------------
        the states pursuant to compacts.

    A tribe may only conduct Class III gaming activities if such 
activities are conducted in conformance with a compact, among other 
things. According to the relevant Senate committee report, IGRA was 
intended to provide a means by which tribal and state governments can 
realize their unique and individual governmental objectives. \10\ The 
Senate committee report also noted that the terms of each compact may 
vary extensively and may allocate most or all of the jurisdictional 
responsibility to the tribe, to the state, or to any variation in 
between. \11\ These compacts are negotiated agreements that establish 
the states' and tribes' regulatory roles and specify the games that are 
allowed, among other things. IGRA specifies that compacts may include 
provisions related to:
---------------------------------------------------------------------------
    \10\ S. Rep. No. 100-446 at 6 (1988).
    \11\ S. Rep. No. 100-446 at 14 (1988).

   the application of criminal and civil laws and regulations 
        of the tribe and the state that are directly related to and 
---------------------------------------------------------------------------
        necessary for the licensing and regulation of gaming,

   the allocation of civil and criminal jurisdiction between 
        the tribe and the state necessary to enforce those laws and 
        regulations,

   state assessments of gaming activities as necessary to 
        defray costs of regulating gaming,

   tribal taxation of gaming activities,

   remedies for breach of contract,

   standards for gaming activity operations and gaming facility 
        maintenance, and

   any other subjects directly related to the operation of 
        gaming activities.

    IGRA authorizes the Secretary to approve compacts and only allows 
the Secretary to disapprove a compact if it violates IGRA, any other 
federal law that does not relate to jurisdiction over gaming on Indian 
lands, or the trust obligation of the United States to Indians. 
Compacts only go into effect when a Notice of Approval from the 
Secretary has been published in the Federal Register.
    Class II and Class III gaming may only be conducted on Indian lands 
in states that permit such gaming. Indian lands, as defined in IGRA, 
are (1) all lands within the limits of an Indian reservation; (2) lands 
held in trust by the United States for the benefit of an Indian tribe 
or individual over which the tribe exercises governmental power; and 
(3) lands held by an Indian tribe or individual that are subject to 
restriction against alienation and over which the tribe exercises 
governmental power. \12\
---------------------------------------------------------------------------
    \12\ 25 U.S.C.  2703(4). In addition, IGRA generally prohibits 
gaming on lands acquired by the Secretary of the Interior in trust for 
the benefit of an Indian tribe after October 17, 1988, although the act 
also contains several exceptions to the general prohibition. Alienation 
is the transfer of property.
---------------------------------------------------------------------------
Interior Uses a Multistep Review Process to Help Ensure That Compacts 
        Comply with IGRA
    Interior has a multistep review process that helps to ensure that 
compacts comply with relevant IGRA provisions and other applicable 
laws. While compacts approved by Interior share similar provisions, 
they do vary in some respects, such as the terms of ``revenue sharing'' 
arrangements between states and tribes and the extent to which the 
compact addresses tribal interactions with local governments. Interior 
cited a variety of reasons for allowing compacts to take effect without 
Secretarial action (deemed approved) and for disapproving compacts.
Interior's Process for Reviewing Compacts
    Interior's Office of Indian Gaming, under the supervision of the 
Deputy Assistant Secretary of Indian Affairs Policy and Economic 
Development, is responsible for reviewing compacts. According to Office 
of Indian Gaming officials, on the day that a compact is received, the 
Office of Indian Gaming date-stamps the compact and files the original 
version. The Office of Indian Gaming has 10 days to conduct an initial 
review of the compact. During this time, they will contact the 
applicant tribe or state if any additional information is needed. After 
this initial review, the Office of Indian Gaming sends a copy of the 
compact to Interior's Office of the Solicitor to conduct a legal review 
of the compact. The Office of the Solicitor has 10 days to review the 
compact. After the Office of the Solicitor's review is complete, the 
Office of Indian Gaming provides a copy of the compact and a summary of 
relevant information to the Assistant Secretary of Indian Affairs, who 
has 45 days to approve or disapprove the compact. Under IGRA, if a 
compact is not approved or disapproved within 45 days of its 
submission, then the compact is considered to have been approved 
(referred to as ``deemed approved''), but only to the extent that it is 
consistent with IGRA.
    On June 18, 2014, the Office of Indian Gaming provided us with a 
list of compacts that were approved, deemed approved, disapproved, or 
withdrawn each year from 1998 to the present. We are in the process of 
verifying the accuracy of this list. Based on our preliminary analysis 
of this list of compacts, the Secretary received a total of 490 
compacts during this time period to review. Of these, 78 percent (382) 
were approved; 12 percent (60) were deemed approved; 6 percent (28) 
were withdrawn; and 4 percent (18) were disapproved. \13\ The number of 
compacts submitted varied from year to year, from a high of 66 in 1999 
to a low of 8 in 2006.
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    \13\ For two of the compacts on the list provided by Interior, the 
decision was not indicated. We are following up with Interior to 
clarify the decision for these compacts.
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Variety of Provisions Contained in Compacts Approved by Interior
    The compacts approved by Interior share similar provisions but vary 
in some respects. For example, while IGRA does not authorize states to 
impose a tax or fee on tribes, apart from the assessment to defray 
regulatory costs, the Secretary has approved compacts that contain 
provisions for revenue sharing with states, so long as the states 
provide the tribe with a comparable benefit in return--a benefit to 
which the tribe would not otherwise be entitled. The amount of revenue 
sharing varied widely in the compacts we reviewed. Some compacts do not 
provide for revenue sharing, such as the 1991 compact between the Fond 
du Lac Band of the Minnesota Chippewa Tribe and the state of Minnesota, 
or the 2011 compact between the Flandreau Santee Sioux Tribe and the 
state of South Dakota. In contrast, some compacts require the tribe to 
share significant portions of revenue with the state. For example, the 
2010 compact between the Seminole Tribe of Florida and the state of 
Florida establishes percentages of net revenue that the tribe must give 
to the state--as much as 25 percent--based on how much revenue the 
tribe makes each year.
    Approved compacts had provisions that varied in other ways, such as 
the extent to which the compacts require the tribe to enter into 
agreements with local governments. For example, the 2003 compact 
between the La Posta Band of Diegueno Mission Indians and the state of 
California requires the tribe to consult with the county and other 
relevant local governments to develop agreements to prevent and 
mitigate effects from any proposed gaming facility. Some compacts make 
no mention of agreements with local governments.
Reasons Compacts Are Deemed Approved or Disapproved
    Compacts that are not approved or disapproved within 45 days are 
deemed approved, \14\ but only to the extent that they comply with 
IGRA. According to Federal Register notices or decision letters that 
accompany the compacts, Interior might not take action on a compact 
within the statutory deadline for a variety of reasons. Federal 
Register notices indicate that some compacts take effect without 
Secretarial action because they only change the expiration date of a 
previously approved compact and do not require additional review. 
According to decision letters accompanying other compacts, the compacts 
were deemed approved because they contained provisions that the 
Secretary found to be questionable but not outright objectionable. For 
example, the 2014 compact between the Mashpee Wampanoag Tribe and the 
state of Massachusetts contained terms that could provide the 
possibility in the future for the state to regulate certain Class II 
games, which IGRA does not authorize, and Interior's letter cautioned 
the state and tribe against implementing the compact in a way that 
violated IGRA.
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    \14\ Interior uses the term ``deemed'' approved to refer to those 
compacts that take effect without Secretarial action, as opposed to 
those the Secretary approves outright.
---------------------------------------------------------------------------
    Of the disapproved compacts we reviewed, the reasons for 
disapproval varied. For example, compacts were disapproved because 
lands proposed to be used for gaming were not Indian lands as defined 
by IGRA or the compact established a management contract that did not 
meet the requirements of IGRA. \15\
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    \15\ 
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    15A tribe many enter into a management contract for the operation 
and management of its Class II or Class III gaming activity. A 
management contract is any contract or collateral agreement between a 
tribe and contractor, or a contractor and subcontractor, that provides 
for the management of all or part of the gaming operation. Management 
contracts must be approved by the Chair of the Commission.
State and Tribal Regulation of Indian Gaming
    Compacts establish the responsibilities of both tribes and states 
for regulating Class III gaming and identify the standards for the 
gaming operation and maintenance of gaming facilities, as well as the 
state and tribal laws and regulations that will be used to regulate the 
gaming, among other things. In addition, tribal gaming ordinances, 
which apply to Class II and Class III gaming, provide the general 
framework for tribal regulation of gaming facilities. The ordinances 
include specific procedures that must be followed by tribes and 
standards that they must meet, among other things. Based on our 
preliminary observations of ongoing work, we found that the approaches 
of the three states we have visited to regulating Indian gaming vary, 
as seen through differences in their regulatory agencies' organization, 
staffing levels, and funding. For the seven tribes we have visited, 
each has established tribal gaming regulatory agencies that govern the 
day-to-day operations of their gaming facilities. These agencies 
perform various regulatory functions to help ensure that their gaming 
facilities are operated in accordance with tribal laws and regulations 
and, for Class III operations, the compact.
Compacts and Tribal Gaming Ordinances Establish the Roles of States and 
        Tribes
    The roles of states and tribes in regulating Indian gaming vary and 
are established in two key documents: (1) compacts for Class III gaming 
and (2) tribal ordinances for both Class II and Class III gaming. 
Compacts that govern Class III gaming on Indian lands lay out the 
responsibilities of both tribes and states for regulating gaming. For 
example, compacts may include, but are not limited to, provisions 
allowing the state to conduct inspections, certify employee licenses, 
and review surveillance records. They may also include tribal 
responsibilities to notify the state when they hire a new employee or 
when they make changes to their gaming regulations or rules for gaming.
    In addition, IGRA requires a tribe's governing body to adopt, and 
the Commission Chair to approve, a tribal gaming ordinance before a 
tribe can conduct Class II or Class III gaming. According to the 
Commission, the tribal gaming ordinances are a key part of IGRA's 
regulation for tribal gaming, providing the general framework for 
tribal regulation of gaming facilities, and including specific 
procedures and standards to be met. For the Chair to approve the 
ordinances, they must provide, among other things, that:

   the tribe will have sole proprietary interest in the gaming 
        activity;

   gaming revenues will only be used for authorized purposes;

   annual independent audits of gaming operations will be 
        provided to the Commission;

   the construction, maintenance, and operation of the gaming 
        facilities will be conducted in a manner that adequately 
        protects the environment, public health and safety; and

   the tribe perform background investigations and the 
        licensing of key employees and primary management officials in 
        accordance with certain requirements.

    Along with the ordinance, a tribe must also submit other 
documentation to the Commission, including copies of all tribal gaming 
regulations. The Chair has 90 days after submission of a tribal gaming 
ordinance to approve or disapprove it; if the Chair does not act within 
90 days, the ordinance is considered to have been approved but only to 
the extent it is consistent with IGRA.
States Vary in Their Approaches to Regulating Class III Indian Gaming
    Based on our preliminary observations, the three states that we 
have visited--Arizona, California, and Oklahoma--vary in their 
approaches to regulating Class III gaming. As illustrated in table 1, 
the three states differ in their organization, funding, and staffing 
levels. \16\ For example, California divides its regulatory 
responsibilities between two agencies, whereas Arizona and Oklahoma 
each have one agency. We also observed that state budgets for the 
regulation of Class III Indian gaming ranged from $1.1 million to $19.8 
million and staffing levels ranged from 3 to 136 full-time equivalents.
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    \16\ These differences are not, by themselves, an indication of 
effectiveness.
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    We also observed that the three states engaged in a variety of 
regulatory activities, including conducting background checks on 
current and prospective employees, licensing gaming devices, inspecting 
gaming operations, and reviewing the gaming operator's surveillance.
Tribes Are Responsible for the Day-to-Day Regulation of Indian Gaming
    The Commission recognizes that tribal governments are responsible 
for the day-to-day regulation of gaming conducted on Indian lands. 
While tribal governments have the authority to engage in gaming, the 
Commission stresses the importance of tribes establishing a 
comprehensive regulatory framework for gaming. According to the 
Commission, comprehensive regulation by tribes is a necessary component 
to ensure the integrity of the games and to protect the interest of the 
tribe.
    Each of the seven tribes we visited in Arizona, California, and 
Oklahoma for our preliminary observations have established tribal 
gaming regulatory agencies--also called tribal gaming commissions or 
tribal gaming agencies--that perform various regulatory functions to 
ensure that their gaming facilities are operated in accordance with 
tribal laws and regulations and, for Class III operations, the compact. 
For each of these tribes, the tribal gaming regulatory agency was 
established by the tribal government for the exclusive purpose of 
regulating and monitoring gaming on behalf of the tribe. In general, 
the regulatory functions that can be performed by tribal gaming 
regulatory agencies include:

   developing licensing procedures for all employees of the 
        gaming operations,

   conducting background investigations on primary management 
        officials and key employees,

   obtaining annual independent outside audits and submitting 
        these audits to the Commission,

   ensuring that net revenues from any gaming activities are 
        used for the limited purposes set forth in the gaming 
        ordinance,

   promulgating tribal gaming regulations pursuant to tribal 
        law,

   monitoring gaming activities to ensure compliance with 
        tribal laws and regulations, and

   establishing or approving minimum internal control standards 
        or procedures for the gaming operation.

    As part of our ongoing work, we plan to visit additional tribes to 
discuss their approaches to regulating Indian gaming, and we will 
summarize our findings in our final report.
The Commission's Regulation and Oversight of Indian Gaming and Impacts 
        of Recent Reorganization
    The Commission plays an important role in regulating Class II 
gaming and overseeing Class III gaming to ensure compliance with IGRA 
and applicable federal and tribal regulations. Among other things, the 
Commission monitors Class II gaming, inspects Class II gaming premises, 
and takes enforcement actions when necessary. In 2011, the Commission 
implemented its Assistance, Compliance, and Enforcement (ACE) 
initiative, which emphasizes providing assistance to tribes to achieve 
compliance with IGRA. Through this initiative, the Commission has 
sought to provide technical assistance and training to tribes so that 
compliance issues may be resolved early and voluntarily without the 
need for a Notice of Violation, which we refer to as an enforcement 
action. Also in 2011, as part of a broader organizational realignment, 
the Commission merged its Enforcement and Audits divisions into one 
Compliance Division. According to Commission officials, this merger was 
deemed necessary, in part, to better support the Commission's emphasis 
on compliance assistance under its ACE initiative.
The Commission Is Responsible for Ensuring That Gaming Facilities 
        Comply with IGRA and Applicable Federal and Tribal Regulations
    IGRA established the Commission within Interior to provide federal 
regulation of Class II and oversight of Class III Indian gaming. Among 
other things, the Commission

   monitors tribal Class II gaming activity;

   inspects Class II gaming premises;

   reviews licenses issued by tribes for key employees and 
        primary management officials;

   audits and reviews financial records of Class II gaming 
        operations (and Class III operations when tribal gaming 
        ordinances provide for it); \17\

    \17\ Notwithstanding the decision in Colorado River Indian Tribes 
v. Nat'l Indian Gaming Comm'n, Commission officials told us that some 
tribal gaming ordinances authorize the Commission to conduct audits and 
reviews of Class III gaming activities.
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   provides technical assistance and training to tribal gaming 
        commissions and operations, and;

   when appropriate, undertakes enforcement actions for 
        violations of IGRA, the Commission's regulations and approved 
        tribal gaming ordinances.

    The Commission also monitors tribal compliance with minimum 
internal control standards, which specify in detail the minimum 
practices tribes must establish and implement for gaming activities. 
The Commission adopted these standards for gaming operations on Indian 
lands in 1999; however, in 2006, a federal circuit court ruled that 
IGRA did not authorize the Commission to issue regulations establishing 
minimum internal control standards for Class III gaming. \18\ 
Commission officials explained that the impact of the court's decision 
is tempered by compacts requiring tribes to adopt tribal internal 
control standards for Class III gaming and that, in most cases, these 
standards are at least as stringent, if not more, than the Commission's 
Class III minimum internal control standards. Specifically, as of July 
2014, Commission officials said 115 compacts in six states require 
tribes to adopt tribal internal control standards that are at least as 
stringent as the Commission's Class III standards. In addition to these 
compact provisions, Commission officials said that 15 tribes in 
California have gaming ordinances that provide for Commission 
enforcement of the Commission's Class III minimum internal control 
standards in lieu of the tribe ensuring compliance with tribal internal 
control standards and state verification of that compliance. However, 
Commission officials expressed concern that its minimum internal 
control standards are out of date since the Commission does not have 
the authority to amend these standards for Class III gaming. For 
example, gaming reporting functions have improved since the Class III 
minimum internal control standards were promulgated in 1999, and now 
this reporting is in digital format rather than in the analog format 
that the Class III minimum internal control standards suggest.
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    \18\ Colorado River Indian Tribes v. Nat'l Indian Gaming Comm'n, 
466 F.3d 134 (D.C. Cir. 2006).
---------------------------------------------------------------------------
The Commission's Recent Initiative Seeks to Resolve Tribal Compliance 
        Issues Voluntarily, When Possible
    In 2011, the Commission implemented its ACE initiative, which 
emphasizes, among other things, providing assistance to tribes to 
achieve compliance with IGRA. Through this initiative, the Commission 
seeks to provide technical assistance and training to tribes so that 
compliance issues may be resolved voluntarily without the need for 
enforcement actions. However, Commission officials told us that 
enforcement actions will still be taken when necessary.
    As part of its ACE initiative, the Commission provides guidance, 
technical assistance, and training to tribes to help build and sustain 
their capacity to prevent, respond to, and recover from internal 
control weaknesses and violations of IGRA and Commission regulations. 
To improve the technical assistance and training that the Commission 
offers to tribes, the Commission tracks the number of training and 
technical assistance events it offers, their length in hours, the 
number of people the training and technical assistance reaches, and 
satisfaction rates with the training the Commission offers. In fiscal 
year 2013, the Commission held 194 training and technical assistance 
events that provided 754 hours of training and technical assistance and 
reached 2,751 participants who were largely satisfied with the training 
and technical assistance provided, according to a Commission report 
(see table 2).


    As indicated in table 2, the Commission has met or exceeded its 
goals for training and technical assistance, with the exception of the 
percentage of tribes attending training in fiscal year 2012.
    To monitor tribal compliance with IGRA and applicable federal and 
tribal regulations for both Class II and Class III operations--another 
component of the Commission's ACE initiative--the Commission conducts 
site visits and audits and evaluations of tribal gaming facilities, 
among other things. The Commission has developed various performance 
measures related to these compliance activities to help measure 
progress toward achieving its goals. As shown in table 3, the 
Commission met its goals for conducting site visits and audits in 
fiscal years 2011 and 2012, but it did not meet its goals for these 
activities in fiscal year 2013. \19\
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    \19\ The Commission scaled back site visits in 2013 due to the 
automatic, across-the-board cancellation of budgetary resources in 
fiscal year 2013, known as sequestration.
---------------------------------------------------------------------------
    The Commission also tracks tribal compliance with what it defines 
as eight primary obligations under IGRA, which are:

   obtaining a compact approved by Interior prior to conducting 
        Class III gaming;

   submitting investigative reports and suitability 
        determinations on each key employee and primary management 
        official, summarizing the results of the tribal background 
        investigation;

   submitting fingerprint cards to the Commission for 
        processing;

   submitting gaming employee applications to the Commission at 
        the commencement of employment;

   adopting a gaming ordinance for Class II or Class III gaming 
        that has been approved by the Commission;

   paying a fee assessment to the Commission based on gaming 
        revenues;

   issuing a separate license for each facility where gaming is 
        conducted; and

   submitting an annual independent audit of each Class II 
        gaming operation to the Commission.

    In its 2012 report to the Secretary regarding tribal compliance 
with these obligations, the Commission stated that tribes were in 
compliance with most of the obligations. However, the report stated 
that a number of tribes did not meet established deadlines for 
submission of fee payments and audit reports. \20\
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    \20\ National Indian Gaming Commission, Report to the Secretary of 
the Interior on Compliance with the Indian Gaming Regulatory Act, Dec. 
31, 2012.
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    In recent years, the Commission has rarely initiated enforcement 
actions. Our analysis of the last 10 years of publicly available 
Notices of Violation--documents that describe the circumstances 
surrounding the violation of the law, Commission regulation or tribal 
ordinance and measures required to correct the violation--peaked in 
fiscal years 2008 and 2009 (see table 4) before the implementation of 
the ACE initiative. Prior to fiscal year 2010, the Commission issued 
Notices of Violation most frequently to address untimely submissions of 
annual audit statements or untimely fee statements.


    Commission officials attributed the decline in the Commission's 
enforcement actions since fiscal year 2009 to its more proactive, 
preventative approach taken to help ensure compliance as called for by 
the ACE initiative. Specifically, the ACE initiative seeks to prevent 
violations from occurring since Commission officials are working 
collaboratively with tribal regulators. Under the ACE initiative, 
Commission officials said that enforcement is generally viewed as a 
tool of last resort. Also, the Commission modified its regulations in 
2012 so that fees or quarterly statements submitted late are now 
subject to a fine rather than a Notice of Violation. \21\ As these were 
the most common enforcement action initiated prior to fiscal year 2010, 
some decline in enforcement actions would be expected. We are 
continuing to collect and analyze data related to the Commission's 
regulations and oversight of Indian gaming, and we will present that 
information in our final report.
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    \21\ Late payments are those received between 1 and 90 days late. 
Payments received after 90 days are failures to pay, which subjects the 
tribe to a potential notice of violation and civil fine assessment.
---------------------------------------------------------------------------
The Commission's Reorganization Appears to Align with Its Emphasis on 
        Compliance Assistance
    In 2011, as part of a broader organizational realignment, the 
Commission merged its Enforcement and Audits divisions into one 
Compliance Division. According to Commission officials, this merger was 
deemed necessary, in part, to better support the Commission's emphasis 
on compliance assistance through its ACE initiative. These officials 
explained that centralizing compliance, enforcement, and auditing staff 
into one division improves communication among these staff and allows 
the Commission to identify compliance issues early. Early 
identification of compliance issues, in turn, allows the Commission to 
provide assistance to tribes before an issue becomes more serious. In 
keeping with the ACE initiative, Commission officials said they would 
prefer not to let compliance issues reach the enforcement stage. We 
will continue to collect information on the Commission's 
reorganization, and we will present this information in our final 
report.
    Chairman Tester, Vice Chairman Barrasso, and members of the 
Committee, this completes my prepared statement. I would be happy to 
respond to any questions that you or other members of the Committee may 
have.

    The Chairman. Thank you, Anne-Marie, for your statement. 
And we do have questions.
    I will start out with you, Kevin Washburn. The Department 
approves Class 3 tribal-State gaming compacts. In 2012, the 
Secretary disapproved a compact between the Mashpee Tribe and 
the Commonwealth of Massachusetts because it violated the 
tenets of IGRA. How many times has the department disapproved a 
compact?
    Mr. Washburn. Roughly 20 times, I believe, since 1998. I 
think the GAO just said that we have approved compacts 78 
percent of the time, I think that was the figure. So about one-
fifth of the time we failed to approve a compact.
    The Chairman. Is there any sort of pattern for the reasons 
why they are disapproved?
    Mr. Washburn. Well, and this I think also sort of reflects 
a little bit what the GAO testified to, revenue sharing with 
States is something that comes up often in those compacts and 
the disapprovals. Indian gaming is primarily supposed to 
benefit Indian tribes. So we have looked with great scrutiny 
where a compact has revenue sharing with a State. It is 
supposed to be Indian gaming, not taxation for the State. So 
that is one of the areas that is a hot issue.
    Other issues are, for example, when the Class 3 gaming 
compact addresses Class 2 gaming, because tribes are the 
exclusive regulators, along with the NIGC, of Class 2 gaming. 
So the States shouldn't have too much to say about what happens 
with Class 2 gaming.
    Another area is when it appears that a State is trying to 
go beyond gaming. When it is trying to exercise authority over 
other matters, water rights, land rights, that sort of thing.
    The Chairman. IGRA has a provision that if the Secretary 
doesn't approve an act within a certain period of time, it is 
deemed approved. Has that ever happened?
    Mr. Washburn. Absolutely. And let me explain why. If I 
affirmatively approve a compact, I am basically vouching for 
its legality. I am saying, this compact is okay. If instead we 
deem it approved, it is deemed approved only to the extent it 
is consistent with the Indian Gaming Regulatory Act. And as 
Senator McCain probably knows better than anybody, the Indian 
Gaming Regulatory Act is not a model of clarity in some 
respects. It is not art, there are a lot of compromises that 
were made in the Act. We sometimes have concerns about the 
legality of a compact, but it is not necessarily a concern that 
goes right to the heart of the compact, it is around a 
peripheral issue. In those circumstances, we sometimes will 
allow the compact to become deemed approved so we don't have to 
decide on that question.
    In essence what we are doing in that situation is punting 
it to the parties or the courts to answer those questions. We 
are loathed to disapprove a compact. We don't like to do it.
    The Chairman. In your testimony you talk about the 
Secretary's role in approving land into trust for gaming 
purposes and the four exceptions in IGRA that allow tribes to 
do gaming acquired after 1998. Do you know why Congress 
included these exceptions in IGRA and if there are sound policy 
reasons today for Congress to leave these exceptions in place?
    Mr. Washburn. Yes, Chairman. IGRA ensures that newly-
recognized tribes or restored tribes are also allowed to game. 
That is one of the reasons we have those exceptions. Or 
landless tribes, tribes that did not have land in 1988, in 
general, IGRA prohibits gaming on lands acquired after 1988. 
But that would not be fair to some tribes if that were the 
final statement.
    So there are some exceptions in IGRA that allow gaming on 
lands after 1988, so that the new tribes are on an equal 
footing with the pre-existing tribes.
    The Chairman. Jonodev, one of NIGC's roles is determining 
whether a particular game is Class 2 or 3. The distinction is 
important for tribes like Poarch Creek, where the State will 
not negotiate a Class 3 compact and the tribe can only conduct 
Class 2 gaming.
    How do you answer folks who say that any gaming machine is 
Class 3 gaming?
    Mr. Chaudhuri. Thank you for the question. IGRA is very 
specific as to the elements of Class 2 gaming as well as the 
elements of Class 3. We are guided by IGRA, we implement IGRA. 
We solely look, we start and end with the elements set forth in 
IGRA in any gaming determination that we make. So in terms of a 
specific game, it is hard to weigh in on any specific game in 
the abstract. But when games are brought to the commission, we 
are guided by the language of IGRA.
    The Chairman. Senator Barrasso?
    Senator Barrasso. Thank you very much, Mr. Chairman. If I 
could just continue and follow up on that.
    The Indian Gaming Regulatory Act sets forth specific duties 
and responsibilities for the chairman. And I know this isn't a 
confirmation hearing, but the specific duties for the chairman 
of the National Indian Gaming Commission. For example, the 
chairman can temporarily close a gaming facility, approve 
tribal ordinances, management contracts. Without a chairman 
right now, what enforcement actions can the commission take?
    Mr. Chaudhuri. Thank you for your question, Vice Chairman. 
Fortunately, given the nomination that was made very recently, 
my authorities as acting chairman have resumed. So any chair-
specific authorities set forth in IGRA, the agency is fully 
capable of carrying out. That said, much of the day to day work 
that the agency performs requires close coordination with 
regulatory partners as well as tribal and local and State 
officials. That day to day activity takes place on the ground 
through our regional offices as well as with support from 
compliance officials at headquarters. All that day to day work 
is not impacted by the absence of a chair.
    Senator Barrasso. And you mentioned the ACE Initiative, as 
you said, Assistance, Compliance and Enforcement. It is 
intended to help tribes safeguard the integrity of their gaming 
operations. Can you talk about some of the performance measures 
that you have established to evaluate the success of the ACE 
Initiative?
    Mr. Chaudhuri. Thank you. As I alluded to in my spoken 
testimony, and as I elaborated in my written testimony, we are 
firmly of the mindset that adequate regulation requires a 
trained workforce. And a trained workforce requires full 
communication between and among all agency stakeholders.
    So we work very closely through our training and technical 
assistance capabilities with tribal regulators on the ground. A 
wonderful metric for the success of the agency is in our 
trainings as well as our site visits. Our trainings are way up 
since implementation of the ACE Initiative. Just last year, in 
2013, we trained 2,751 participants in Indian Country on up to 
date regulations and best practices. Just this year, in 2014, 
we have trained 2,140. So that is a great metric.
    But on top of that, nothing about our enforcement 
responsibilities, our oversight responsibilities is in any way 
diminished by the recognition of the benefits of working with 
tribal regulators on the front end.
    Senator Barrasso. Thank you. I know, and these aren't just 
a couple of training events. I understand about 341 different 
events over the last two years with almost 5,000 participants 
attending. So when we get to the next panel, I am going to ask 
them, and they can prepare for this, if they can explain how 
this initiative has actually reduced criminal activity in and 
improved the integrity of Indian gaming. So we will hear how 
this initiative has actually helped on the ground with 
activities.
    Ms. Fennell, your written testimony noted that in 2011 the 
National Indian Gaming Commission did implement this ACE 
Initiative, it emphasizes technical assistance, this training 
for tribes to achieve compliance. Based on your review so far, 
how effective is the initiative?
    Ms. Fennell. At this point, we are still waiting for 
compliance data and information to do additional analyses that 
will allow us to look at the effectiveness of this particular 
initiative. Right now what you have in our statement is 
information that is available that has shown how they have set 
goals and how they have achieved those goals. But we plan to do 
additional work that will allow us to fully look at what the 
compliance information shows about the effectiveness of the 
initiative.
    Senator Barrasso. Thank you. Because Mr. Chairman, I think 
effectiveness of a key point of this whole thing. So we will 
look forward to that additional follow-up report. Thank you, 
Mr. Chairman.
    The Chairman. Thank you, Senator Barrasso. Senator 
Heitkamp?

               STATEMENT OF HON. HEIDI HEITKAMP, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Heitkamp. Thank you, Mr. Chairman.
    Just a couple quick questions. Kevin, obviously the whole 
dream of Indian gaming is not just to provide a recreational 
outlet for the surrounding areas, but it is to provide a 
betterment for Indian Country and for people who live in the 
community.
    There has been some really interesting research that was 
done in terms of gaming tribes and what they are able to do. I 
think we don't notice those benefits as often as what we 
should.
    So this year, we have seen these studies. I am wondering if 
you could just comment on the unseen benefits, the things that 
we may not always count but we know are happening in Indian 
Country as a result of this opportunity.
    Mr. Washburn. Yes, thank you, Senator Heitkamp. Given your 
concern for children, gaming has been tremendous in that 
particular area. Chief Hicks is here from the Eastern Band of 
Cherokee. There was a study over the past couple of years in 
North Carolina that showed that even modest per capita payments 
to people in poverty can make a huge difference, on mental 
health, on dropout rates, on things like that, sort of negative 
demographic effects. And children and tribal citizens are doing 
much better, even with modest per capita payments of just a few 
thousand dollars.
    Certainly most Indian gaming revenues don't even go to per 
capita payments, they go to social services and other benefits 
for tribes that help them with governmental infrastructure. So 
it has tremendous value, even if it is just a small amount of 
gaming revenues.
    Senator Heitkamp. And I would add to that that in many 
places, the casino itself has become a cultural center, a place 
of kind of understanding culture, being able to educate the 
people who come into Indian Country about the culture, about 
what has happened and provide that communication with other 
communities. I can tell you that the surrounding communities, 
we don't frequently add up the economic benefit to the 
surrounding communities as well, both in terms of employment 
and economic activity.
    Anne-Marie, as someone who actually regulated Indian gaming 
in my previous life, I am curious as you have kind of gone 
through your study so far, what advice would you give both in 
terms of negotiating a compact in terms of the regulatory 
structure and what advice would you give to State regulatory 
agencies in terms of your judgment at this point of best 
practices?
    Ms. Fennell. Senator, I appreciate the question. I think it 
is still a little bit early for us to be able to draw out the 
best practices at this stage. We have actually conducted three 
site visits, we have three more that will be coming up. We are 
contacting the remaining 22 States. We anticipate that we will 
be able to show the variations that exist and different 
approaches, and we will be able to perhaps draw some 
conclusions at that particular time in terms of the various 
approaches that have been taken.
    Senator Heitkamp. I think it is important to point out that 
where you look at casinos in Las Vegas, they are regulated by 
the State, maybe a little bit of control by Las Vegas. But as 
you look at regulatory authority, we have tribal regulation, we 
have State regulation and we have Federal regulation. It has 
all been geared to respond to people's concerns that Indian 
gaming may in fact prove to be fraudulent in some places, may 
not offer a fair chance to folks. I will tell you from the 
standpoint of my experience, that has absolutely not been true.
    So I think at some point we need to rethink that regulatory 
structure and think about whether at some point we haven't 
anticipated problems that haven't shown up. Maybe they haven't 
shown up because of the regulation. But certainly I think it is 
a fair question to ask.
    The Chairman. Thank you, Senator Heitkamp. Senator McCain?
    Senator McCain. Thank you, Mr. Chairman.
    Mr. Washburn, I take it that you are familiar with the 
issue that concerns us in Arizona concerning the proposed 
casino in Glendale, Arizona. I understand that Interior took 
the land into trust last week after following the court's 
decision in favor of the Tohono O'odham Nation and the 
interpretation of the Gila Bend Reservation Lands Replacement 
Act. Is that true?
    Mr. Washburn. Yes, sir, it is true."
    Senator McCain. And that was basically on the grounds that 
the Gila Bend Reservation Lands Replacement Act allowed for the 
casino or the land to be taken by the tribe, and then there was 
no prohibition as to what that land should be used for, is that 
correct?
    Mr. Washburn. That is correct, Senator, and I would go a 
little bit further and say that we believe that the Gila Bend 
Act actually mandated us to take that land into trust for the 
Tohono O'odham Nation. We are following the law by doing so.
    Senator McCain. And of course, when that legislation, the 
Gila Bend Reservation Lands Replacement Act, there was no 
Indian gaming at the time. So it was certainly not anticipated, 
this controversy, at the time of the passage of that 
legislation. Would you agree?
    Mr. Washburn. Well, I am not sure I would fully agree, 
Senator. There was certainly, Indian gaming was a hot issue in 
the 1980s. It led to the Cabazon case in 1987. There were court 
cases in California and Florida that went to the district 
courts, then the circuit courts, and then the Cabazon case in 
the Supreme Court. So at least there was some inkling of Indian 
gaming at that time. And the Gila Bend Act just did not address 
gaming.
    Senator McCain. Does the Department of Interior need to 
issue a final legal opinion on whether the Glendale parcel is 
legally able to house a gaming operation?
    Mr. Washburn. Well, there are some steps that need to 
happen. I am not sure, given the district court opinion in the 
case, that we need to do anything further with regard to an 
Indian lands determination, because Judge Campbell did address 
that matter in his opinion. However, the operation, if they do 
choose to open an operation in Glendale, the Tohono O'odham 
Nation will need a facility license under IGRA, which will 
require them to interact with the NIGC to make sure that that 
is a lawful facility. They will likely also have to deal with 
the city of Glendale. If they are going to try to open up an 
operation that is within a county island within some of the 
exterior boundaries of the city of Glendale, they will probably 
need to work with Maricopa County and the city of Glendale on 
issues related to such a facility, such as traffic, water 
services and those sorts of things, emergency services.

    So I suspect there will be some negotiations along those 
lines and some more hurdles for them to cross before they could 
actually open a casino.
    Senator McCain. Those are largely what is normally needed 
when you set up an operation, or any business, actually. Are 
you familiar with H.R. 1410, that is the legislation that was 
proposed that would prevent this from happening? Does that 
present a constitutional takings problem in your view?
    Mr. Washburn. Well, I would have to consult with my lawyers 
to answer that question, Senator. It is arguable.
    Senator McCain. When you make these decisions, at least to 
some degree the opinion of the local authorities and 
governments are taken into some consideration, I would assume.
    Mr. Washburn. In a discretionary situation, they certainly 
are. We consult with the local community and the local 
governments and the State government usually before taking land 
into trust. We ask them questions about land use conflicts and 
jurisdictional conflicts and the effect on the county tax rolls 
and that sort of thing. So we do solicit their views quite a 
bit. We also in the NEPA process, the National Environmental 
Policy Act process, we also ask for the views of the public and 
local communities.
    Senator McCain. Do you ask for the opinion of other Indian 
tribes who are engaged in gaming in the vicinity?
    Mr. Washburn. We do certainly for off-reservation 
acquisitions. Not necessarily for on-reservation acquisitions, 
but for off-reservations acquisitions, yes, we do.
    Senator McCain. And have you taken the strong opinion by 
other tribes from Arizona concerning this operation being set 
up by the Tohono O'odham Tribe?
    Mr. Washburn. Senator McCain, that has been one of the most 
agonizing parts of this whole process. Because I have enormous 
respect for my friends at the Gila River Indian Community and 
the Salt River Pima-Maricopa Community and many other tribes in 
Arizona. And I have endeavored to listen to them and hear their 
views. Ultimately this was a legal question as to what was the 
meaning of the Gila Bend Act. We made the decision, we called 
it like we saw it. But we certainly consulted at great length 
with other tribes in Arizona.
    Senator McCain. So unless Congress acts in a way to 
prohibit what is happening now, it is inevitable that you will 
see the Tohono O'odham tribe operating a casino in Glendale? Is 
that pretty much the inevitability here?
    Mr. Washburn. Well, they have the hurdles that I mentioned.
    Senator McCain. Yes, the normal hurdles.
    Mr. Washburn. It is the normal hurdles, although nothing is 
ever really a sure thing in Indian gaming, Senator. I have seen 
a lot of these things go sideways during their development. 
There is a significant amount of financing that will be 
required and lots of other issues.
    Senator McCain. You can tell all parties involved that you 
have thoroughly examined this issue? That it is, even though a 
tough decision, that you have given it a great deal of time and 
thought and consultation?
    Mr. Washburn. I have, Senator.
    Senator McCain. I thank you, Mr. Chairman.
    The Chairman. Thank you. Senator Franken?

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Thank you, Mr. Chairman. Assistant 
Secretary Washburn, it is good to see you again.
    There is a lot of debate about gaming in general. But one 
aspect that is undeniable is the economic development benefit 
of Indian gaming to tribes. In 2012, Indian gaming pulled in 
$27.9 billion in revenue. As you said in your testimony, 
between $26 and $28 billion yearly. That revenue creates jobs, 
in answer to Senator Heitkamp's question you said that it makes 
a difference. It makes a difference to kids, it makes a 
difference to education. It funds direct payments to tribal 
members, as you said, in some cases. Health care, schools, 
water projects.
    Due to the Federal trust responsibility, those are services 
that the Federal Government would be responsible for funding, 
were it not for the revenue that gaming provides, right?
    Mr. Washburn. That is right.
    Senator Franken. And we all know how underfunded the 
Federal trust responsibility is, unfortunately.
    Mr. Washburn. Yes.
    Senator Franken. If Indian gaming vanished tomorrow and all 
those needs shifted to Federal trust responsibility, what would 
that look like? What would the budgetary impact on your agency 
be?
    Mr. Washburn. I shudder to think. Senator, Indian gaming, 
the figure you quoted is more than ten times what the BIA and 
BIE budgets are together. So we would have fewer tribal police 
officers, we would have fewer scholarships for Indian children. 
And we know the cost of higher education these days. We would 
have fewer social workers. We would have fewer of all of the 
things that we need in Indian Country to have healthy 
communities.
    Indian gaming is not for all tribes. It is less than half 
of tribes that actually have Indian gaming. But for those 
tribes, it is a significant source of income. I believe all 11 
tribes in Minnesota have Indian gaming. And for some of them, 
it is not a huge source of income, but it is a source.
    And I would shudder to think what Indian Country would look 
like without the revenues that come in from Indian gaming.
    Senator Franken. In your testimony you describe the rise of 
commercial gaming and you compare it as it is happening, the 
flat-lining of Indian gaming. We are also going to hear today, 
as Senator McCain talked about, inter-tribal competition for 
gaming market share. We have already just laid out the 
importance of Indian gaming for so many services, tribal lands.
    What is the biggest threat to Indian gaming today and in 
the future? Does a race to provide off-reservation gaming 
invite more competition from commercial gaming?
    Mr. Washburn. Senator Franken, I don't believe it does. I 
think it is quite the opposite. Nature abhors a vacuum and 
markets abhor a vacuum. So if there is not Indian gaming, 
commercial gaming goes in typically where there is not already 
Indian gaming. We are about to have gaming in Maryland. I would 
just as soon that be Indian gaming, rather than commercial 
gaming. Commercial gaming goes to enrich shareholders. Indian 
gaming goes to help poor people, usually. It goes to support 
tribal governments. It is governmental-owned gaming.
    And so I would much rather see Indian gaming existing than 
commercial gaming expanding.
    Senator Franken. Let me ask Mr. Chaudhuri, do you have the 
same take on that?
    Mr. Chaudhuri. Absolutely. Both from a regular, well, at 
the commission our emphasis is on the regulation of Indian 
gaming. But in our work, we work closely with various agency 
stakeholders, I know there will be testimony later today from 
the National Indian Gaming Association, who track some of the 
direct tie-ins between gaming revenue and services and nation-
building efforts on the ground. The threats to Indian gaming 
are largely market-driven, but there are some regulatory issues 
that we track. In short answer, yes.
    Senator Franken. Okay. It is, I know I only have six 
seconds left, technology. As new technology changes the 
industry, what threats are there?
    Mr. Chaudhuri. The threats don't necessarily raise 
regulatory concerns in terms of the regulatory language that 
applies to our mission. Gaming is inherently a technology-
driven industry. So when we are talking about protecting the 
industry, we have to talk about staying up to date to minimize 
vulnerabilities at any operational facility.
    In terms of staying up to date, we need to stay up to date 
ourselves to make sure that our training and technical 
assistance is up to date. So obviously with any technology-
driven industry, you are worried about third-party threats, 
cyber vulnerabilities. Those are ongoing concerns of the 
industry.
    Senator Franken. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you all. Just as a bit of housekeeping, 
Anne-Marie, the Indian gaming study, when will that be ready 
for prime time? When will you be done with it?
    Ms. Fennell. We anticipate conducting additional audit work 
over the next few months and will be speaking with your staff 
regarding an actual issuance date. But we would anticipate 
early in the new year.
    The Chairman. Thank you very much, and I want to thank all 
the panel members. Kevin, wear the basket well.
    Now I am going to ask the next panel to come up. That panel 
will include Chairman A.T. Stafne, of the Assiniboine and Sioux 
Tribes of the Fort Peck Indian Reservation. I want to thank 
Chairman Stafne for coming from beautiful Montana to be with us 
here today and provide testimony on this important issue.
    After A.T. gets done, we are going to hear from Principal 
Chief Michell Hicks, of the Eastern Band of Cherokee Indians. 
And finally, Mr. Ernest Stevens, Chairman of the National 
Indian Gaming Association. I want to thank you all for being 
here today. We look forward to your testimony, as you get 
organized. As I said, we are going to hear from some tribal 
folks and some regulatory folks. So with that, I would ask you, 
Chairman Stafne, to begin.
    If you can keep your testimony to five minutes, it would be 
helpful, because we have another panel after this one. Your 
full testimony will be a part of the record. Chairman Stafne, 
you may begin.

STATEMENT OF HON. A.T. STAFNE, CHAIRMAN, ASSINIBOINE AND SIOUX 
           TRIBES OF THE FORT PECK INDIAN RESERVATION

    Mr. Stafne. Thank you, Chairman Tester, Vice Chairman 
Barrasso, Senator McCain, Senator Heitkamp and Senator Franken. 
Thank you for allowing me to testify today concerning the next 
25 years of Indian gaming.
    I am A.T. Stafne, Chairman of the Assiniboine and Sioux 
Tribes of the Fort Peck Reservation, located in northeastern 
Montana. I will be blunt: for the 13,000 members of the 
Assiniboine and Sioux Tribes, we have seen little economic 
benefit from Indian gaming over the last 25 years. Unless 
Congress acts and amends IGRA to alter the unequal playing 
field that now exists between Indian tribes and the States, we 
do not expect to see much improvement for our tribes in the 
next 25 years.
    If Congress continues to share our view that the Act's 
original purposes empowering tribal governments and generating 
much-needed income are important goals, it should consider 
amendments to IGRA that give all tribes an opportunity to 
benefit from Indian gaming and to curb unnecessary and costly 
litigation which too often harms rather than helps Indian 
tribes. In short, reversing the Rumsey Rancheria decision I 
discuss below.
    In adopting Indian gaming to strengthen tribal governments, 
we doubt Congress intended a balance of power so heavily 
weighted in favor of the States. Nor do we think Congress 
intended to pit tribes and States against each other in costly 
litigation that drags on for years. We also don't think 
Congress intended to allow States to impose their laws and 
regulations upon tribes in order for tribes to engage in gaming 
once the civil, regulatory and criminal prohibitory mandate is 
met; or that States should dictate to tribes the types of games 
offered, prize limits or the number of games or facilities.
    However, after 25 years, States now hold that power. State 
boundary lines should not dictate the economic welfare of 
federally-recognized Indian tribes.
    Two Federal court decisions greatly limited our negotiation 
strength against Montana to take full advantage of IGRA, as 
many tribes have done to great success. The first is the 
Supreme Court's Seminole decision that barred tribes from suing 
States that did not negotiate gaming compacts in good faith.
    The second case is the Ninth Circuit's Rumsey Rancheria 
case, which held that States subject to the court's 
jurisdiction, like Montana, can lawfully limit tribes to just 
the type of Class 3 games played elsewhere in the State. Our 
games are really no different than those played elsewhere in 
the State. As a remote reservation, we lack the location and 
infrastructure to attract large numbers of tourists. With some 
modest exceptions, we offer the same games as the public can 
play elsewhere in Montana, such as video poker, Keno and 
limited live poker. Our isolation and limited games really 
don't allow us to compete with 1,600 licensed gambling 
operators and locations that offer 17,000 video gambling 
machines to the public.
    We have a small profit margin, which yields less than 
$500,000 per year. The net profits that we earn represent less 
than $40 per member. That buys about 10 gallons of gas in Wolf 
Point. Our gaming profits actually go into the general fund for 
governmental services, for our members, for programs not funded 
or not adequately funded by the Federal Government.
    We are a poor reservation. Nearly half the people living on 
the reservation are below the Federal poverty level. At least 
1,600 Native families on the reservation must survive on 
incomes somewhere between $12,000 and $32,000 per year. It 
should shock no one that we have the poorest health in the 
State, and the average age of death of our tribal members in 
the past two years has been 51.
    Unprecedented oil exploration and development is occurring 
in Bakken just off our reservation. We are not ready for it. 
Our services and infrastructure are struggling to keep up, as 
our cost of living rises. Despite the Federal Government's 
promotion of Bakken oil exploitation, it has done little to 
fund the ailing communities surrounding the Bakken. In looking 
ahead to the next 25 years, we urge this Committee to consider 
whether congressional policy has been fulfilled. For some 
tribes, Indian gaming has been a huge success. But for the 
majority of rural, remote, large land-based tribes, without a 
distinctive Las Vegas style casino to compete against State 
licensed gaming establishments, IGRA weakened and undermined by 
the Seminole and Rumsey decisions, has not delivered the 
promise of economic independence. Far from it.
    Litigation over licensing and regulation, location, types 
of eligible gaming activities and the process for the 
negotiation of gaming compacts has been relentless. Too often 
courts have ruled against tribal interests.
    In conclusion, Congress has the authority and the 
obligation consistent with its historic trust responsibility to 
tribes to ensure that opportunities for economic advancement 
and self-sufficiency through gaming are available to all Indian 
tribes. Congress can play an instrumental role in bettering our 
economic condition if it chooses to act.
    We hope you do, and thank you for the opportunity.
    [The prepared statement of Mr. Stafne follows:]

Prepared Statement of Hon. A.T. Stafne, Chairman, Assiniboine and Sioux 
               Tribes of the Fort Peck Indian Reservation
    My name is A.T. Stafne and I am the Chairman of the Assiniboine and 
Sioux Tribes of the Fort Peck Reservation. I would like to thank the 
Committee for the opportunity to share our perspective, as a large, 
rural, remote, and impoverished Tribe that has seen little economic 
benefits from Indian gaming over the last 25 years.
    The sparsely populated Fort Peck Reservation spans 2.1 million 
acres of Montana's northeastern plains, which is roughly twice the size 
of Glacier National Park. Our Reservation's Indian population is 
approaching 8,000 while our overall Tribal enrollment is approximately 
13,000 members.
    Our Reservation remains one of the most impoverished communities in 
the country. Nearly half of the people living on the Reservation are 
below the federal poverty level. Recent U.S. Housing and Urban 
Development (HUD) data reveals that nearly 1,600 Native families 
residing on the Reservation have household incomes from less than 30 
percent of Median Family Income to 80 percent of Median Family Income. 
Roosevelt County, where most of our Reservation is located, has the 
poorest health in the state of Montana. Moreover, our review of recent 
data suggests that the average age of death of Fort Peck Tribal members 
in the past two years is 51 years of age. It is not surprising, then, 
that almost half the population living on the Reservation is under the 
age of twentyfour. Thus, we are a poor, unhealthy, and young community.
    In an effort to improve the social and economic conditions on our 
Reservation, Tribal leadership at Fort Peck entered into a gaming 
compact under the newly adopted Indian Gaming Regulatory Act with the 
State of Montana in 1992. Although Las Vegas or Atlantic City-style 
gaming did not, and does not now, exist in Montana, Class III gaming, 
as it is defined under the Indian Gaming Act, was permitted. 
Specifically, the State sanctioned its lottery, video poker and keno, 
limited live poker, and horserace betting, along with a handful of 
games of chance. During our negotiations, Montana took the position 
that it could not agree to a compact that allowed the Tribes to engage 
in games that were not permitted in the rest of the State--a position 
the State continues to maintain.
    Although we did not, and do not believe that Congress intended to 
allow states to impose its laws and policies upon tribes in the context 
of on-Reservation gaming, litigation was not a viable alternative for 
us. Of course, the Supreme Court closed that door for us in the 
Seminole decision, which barred tribes from suing states that did not 
negotiate gaming compacts with tribes in good faith. And in the Rumsey 
Rancheria case, the full Ninth Circuit court of appeals held that 
states can lawfully limit tribes to just the type of Class III games 
played elsewhere in the State, as Montana does.
    The Fort Peck Tribes have done the best we can in these restricted 
circumstances, but it has not been good enough to improve conditions on 
our Reservation in any major way. The State of Montana and the Fort 
Peck Tribes entered into a Compact in 1992, which was modified several 
times over the years and rewritten a few years ago. The basic tenets of 
the compact remain consistent with Montana's original position of 
allowing only those types of games permitted under state law. Under our 
compact, then, we have conducted video poker and keno, limited live 
poker and a few other games of chance since 1992.
    The nature of these games is to redistribute money among the 
players, with a payout of roughly 90 percent of the money played. In 
other words, the Tribes and its licensees share in only about a 10 
percent profit margin. Although gross gaming receipts total roughly $10 
million per year, the Tribes' annual profit on those receipts is 
normally less than $500,000. Therefore, gaming provides very little 
income to our Tribes.
    We have no major metropolitan area anywhere near our Reservation. 
Indeed, the total population of Montana is only about 1 million, 
despite being geographically, the fourth largest state in the nation. 
Still, tourism is a sizeable industry in Montana. Although Montana's 
policy makers have not decided to include large-scale gaming in its 
array of tourist activities, Montana's tribes should not be precluded 
from making that policy decision themselves.
    The ability of Tribal leadership to make decisions concerning our 
Reservation has never been more important than now. Unprecedented oil 
exploration and development is occurring in the Bakken just off our 
Reservation. Our services and infrastructure are struggling to keep up 
with the dramatically increased demand and population increases as a 
result of the neighboring boom, but we are receiving little in return. 
Despite the Federal Government's promotion of Bakken oil exploitation, 
it has done little to fund the ailing communities surrounding the 
Bakken. Similarly, the State of Montana has been unable to keep pace 
with the rapidly increase demands in cities and counties surrounding 
the Bakken.
    Not only is there a need for greater revenue for government's like 
ours, we are now realizing the population and traffic increases that 
could support larger-scale gaming on our Reservation. Thus, there is no 
better time to consider Indian gaming a means to generate revenue in 
our region to fund vital governmental services, build infrastructure to 
enhance our economy, and strengthen our Tribal government.
    In 1988 Congress found that ``a principal goal of Federal Indian 
policy is to promote tribal economic development, tribal self-
sufficiency, and strong tribal government,'' and enacted the Indian 
Gaming Regulatory Act with a principal purpose ``to protect [Indian] 
gaming as a means of generating tribal revenue.''
    In looking ahead to the next 25 years of Indian Gaming we must, 
then, consider whether Congressional policy has been fulfilled and its 
purposes achieved. What have we learned in the last 25 years?
    First, we know that Indian gaming has been, for some Tribes, the 
largest single producer of revenue in history. For those Tribes engaged 
in large-scale gaming enterprises, Indian gaming has produced 
unprecedented income, boosting Tribal economies and Tribal self-
sufficiency, and enhancing Tribal government.
    Second, we know that despite the success of some Tribes, Indian 
gaming has provided little benefit to many tribes. Geographical 
location is a barrier for economic development of any kind, and 
certainly Indian gaming is not immune from geographical limitations. 
However, geography is not the only barrier to Tribes interested in 
seeking self-sufficiency through gaming. Indeed, the long arm of state 
law and regulation--strengthened by the Seminole and Rumsey decisions--
continues to prohibit many Tribes, including Fort Peck, from obtaining 
economic independence through gaming.
    Third, we know that the realm of Indian gaming has been fraught 
with costly litigation. Competing interests of tribal, state and 
federal licensing and regulation, the location of gaming facilities, 
the type of gaming activity, and the process for the negotiation of 
gaming compacts, have been a constant topic of litigation over the last 
25 years. Although Congress declared that one of the purposes of the 
Indian Gaming Regulatory Act was ``to provide a statutory basis for the 
regulation of gaming by an Indian tribe,'' which includes ``clear 
standards,'' the courts have nevertheless been called upon to determine 
issues involving Indian gaming at a disproportionate rate. Indeed, 
through litigation, one primary component of the compact negotiation 
process was struck down, namely Tribe's ability to sue states who fail 
to negotiate with Tribes in good faith.
    So we know that Indian gaming can serve to fulfill the purposes 
established by Congress in 1988. Gaming can provide a meaningful source 
of revenue that strengthens tribal economies, helps tribes in the 
pursuit of self-sufficiency, and promotes strong tribal governments. If 
Congress continues to share our view that these goals are important, it 
should consider the other lessons we have learned in the context of 
Indian gaming, including ways to ensure all tribes are afforded an 
opportunity to benefit from Indian gaming and to curb the unnecessary 
need for litigation which is costly and time consuming.
    In our view, Congress should reconsider the balance of power that 
now exists between tribes and states with regard to Indian gaming, and 
in particular, the balance of power in negotiating compacts with Tribes 
for Class III gaming. Congress cannot change the Seminole decision, 
because Seminole is based on the Court's reading of the Constitution-
but it could alter the result of the Rumsey decision and allow tribes 
to conduct any Class III games the Tribe wants to play, free of any 
limits elsewhere in a state that allows Class III games.
    Congress should reconsider whether it intended in 1988 to allow 
states to impose its laws and regulations upon tribes in order for 
tribes to engage in gaming. We do not think Congress intended for 
states to dictate to tribes the types of games offered for play, 
betting and prize limits, or the number of games or facilities. 
However, after 25 years, it is quite clear as a practical matter that 
states now hold that power. This leads to uneven results. As just one 
example, since North Dakota allows tribes to conduct a very broad array 
of Class III games, our neighboring tribe to the east--the Three 
Affiliated Tribes of Fort Berthold--is able to operate a far more 
lucrative gaming casino than we or any Montana tribe can do.
    We do not think that was the balance of power Congress had in mind, 
nor do we think this result is fair or consistent with Congress's 
unique trust obligation to Indian tribes. We know that there will 
always be barriers to prosperity, like geography and population. But we 
truly believe that Congress has the authority and the obligation, 
consistent with its historic trust responsibility to Indian tribes and 
our members, to ensure that opportunities for economic advancement and 
self-sufficiency through gaming are available to all Indian tribes. 
Thank you for your serious consideration of these important issues.
    I would be happy to answer any of your questions.

    The Chairman. Thank you, Chairman Stafne.
    Chief Hicks?

STATEMENT OF HON. MICHELL HICKS, PRINCIPAL CHIEF, EASTERN BAND 
                      OF CHEROKEE INDIANS

    Mr. Hicks. Good afternoon, Chairman. It is good to see you, 
Vice Chairman Barrasso, and Senator Heitkamp and Senator 
Franken. Thank you for allowing me to speak just a few minutes 
today.
    My name is Michell Hicks. I am Principal Chief of the 
Eastern Band of Cherokee Nation. We reside in western North 
Carolina. I have been in my capacity for about 11 years, and I 
have been before this Committee in previous years. Again, I am 
here to tell just a short story about our successes with 
gaming. The story of my people is one of persecution, survival, 
endurance and of course now, emergence. The survival of our 
language and our culture and the willingness of our people to 
protect our aboriginal lands and territory. Of course, our 
dedication to educating our people and our recent emergence as 
an economic power in our region. It makes us very unique.
    I testify today that gaming has brought not only economic 
benefits to our reservation but also positive social impacts, 
of which I will give some examples just a little later on. On 
life expectancy, poverty rates, educational attainment, 
physical and mental well-being of Cherokee children and 
families. And you know, for my responsibility, that is what it 
is all about.
    Before gaming came to Cherokee, our people struggled to 
survive. The beauty of our homelands and our location at one of 
the entrance points to the Great Smokey Mountains National Park 
made us a natural industry for tourism on our reservation. But 
seasonal tourism could not pull us out of poverty.
    Our community has changed dramatically since our permanent 
casino in 1997. Gaming revenues have allowed us to supplement 
the shortage of Federal and State and of course internally-
generated funds we used to rely on, and helped us to become 
more self-sufficient. I want to describe today just a few of 
the critical ways in which these funds are improving the lives 
of our people. And I will assure this Senate Committee today 
that we are a priority-based tribe that is addressing issues 
head on. Whether it is economic or whether it is social, 
health, education, we are addressing them head on.
    I want to draw your attention to the picture to my right. 
We created a language academy about 10 years ago and 
fortunately we were able to redo a hotel and permanently move 
in our academy, where Cherokee is the first language within 
this academy. Of course, we have to follow State standards. Our 
oldest class currently is fifth graders. So we are very proud 
of what we have been able to accomplish with this school. Of 
course, it took a significant investment to create this 
educational opportunity for these kids, not just building a 
building, but creating that curriculum that can be taught and 
maintained in the schools.
    I will also refer to the next picture, which is the 
Cherokee Central Schools. This was a significant project. We 
are going to be starting our fifth year. It is Leeds certified. 
One of the things that we put into place approximately in 2005 
was an environmental proclamation. Every tree that came off 
this 143 acres went back into the school. There are 350 wells. 
We take advantage of the solar aspects and for lighting of the 
facility. There are cultural aspects of the facility, as you 
can see in this next picture here. It identifies the importance 
of that to our students and to make sure that they clearly 
understand their responsibility as they grow older to the tribe 
and to maintain our culture and traditions.
    We also, as we built this school, one of the things we did 
was invest in 400 miles of fiber in western North Carolina. 
Nobody thought we could do it, but we did it because we had to. 
All schools, including the Cherokee Schools, are linked into 
this fiber loop in western North Carolina. So we increased the 
opportunity for any of our children, both for Indians and non-
Indians. Again, we are very proud of that aspect.
    In regard to the health of our people, like many of the 
nations, we deal with an epidemic of diabetes. So one of the 
things we have been very proud of but also very diligent about 
is we created a number of athletic and recreational and multi-
purpose facilities to allow our kids to enjoy these facilities 
from many perspectives. Not all children are athletic, but 
there are opportunities for them to defeat the disease of 
diabetes. We have created seven of these facilities throughout 
our tribe.
    We converted an old textile factory into a fitness center, 
which includes cardio, weight room, indoor walking track, 
gymnasium and also an indoor pool, which also a lot of our 
elders take advantage of, outside of our children. We designed 
a state of the art skate park for bike riders and those who 
like skateboards. Also a number of family parks and green 
areas.
    We just recently opened a youth center. We have had a youth 
center in Cherokee since 1997, but we created a youth center in 
a very remote part of our reservation. It was about 45 miles 
away and we wanted to provide additional opportunities for 
those kids. Overall, we serve about 400 children in the youth 
center activities on a daily basis. This particular facility 
will serve about 100.
    Also as it relates to the health of our children, we have 
created a women and children's center which includes children's 
dental, a WIC program, of course psychological services, among 
many other services. We are in the process of constructing a 
new hospital that is technologically advanced, with MRI 
systems, C-scan systems and of course the hospital system, 
along with the other systems in western North Carolina, are 
additionally hooked into our fiber that we have created.
    I do want to tell one short story today. We are in the 
process of taking over all the social services from the State 
that we live in, which is North Carolina. We had a scenario 
occur a few years ago where a young lady, she was less than two 
years old, was supposed to be overseen by the county social 
services, of course, the county police. And this young lady 
ended up dying, she froze to death. So one of our major 
priorities is to make sure that, and you all know this sitting 
in this room today, that family can take care of family best. 
And so we are taking over all those social services, pulling 
those back into the tribe.
    So as I sit here today and think about our responsibilities 
as tribal leaders and leaders of this nation, all leaders 
should first and foremost, in my opinion, be to children and 
family. I feel that through these resources that we have been 
blessed with at the Eastern Band that we have made it priority 
to make sure that the infrastructure is in place but also the 
training is in place, the teachers are in place, et cetera, to 
make sure we are successful.
    One last point, Mr. Chairman, I know I have run over, I do 
want to call your attention, there is a study that was done by 
Duke Medical School, the lady's name was Jane Costello. I would 
like to submit this for the record. But it does talk about, 
when you improve the financial income within a family, you can 
definitely improve their lives.
    With that, that concludes my testimony today and I 
appreciate the opportunity.
    [The prepared statement of Mr. Hicks follows:]

Prepared Statement of Hon. Michell Hicks, Principal Chief, Eastern Band 
                          of Cherokee Indians
    Thank you, Chairman Tester and Vice Chairman Barrasso, for the 
opportunity to testify at this hearing today on tribal government 
gaming.
    My name is Michell Hicks; I am currently serving my third four-year 
term as Principal Chief of the Eastern Band of Cherokee Indians, a 
tribal government based in Cherokee, North Carolina, comprised of the 
Cherokees that avoided the Trail of Tears and continue to live in the 
mountains of Western North Carolina. We have about 15,000 tribal 
members and most of our people live on the Eastern Band Cherokee 
Reservation.
    The story of my people is a story of persecution, survival, 
endurance, and emergence. The history of the Eastern Band people 
suggests that we should no longer exist. Oppressive federal policies, 
competition and taking of our lands and resources, and efforts to turn 
our people from Cherokee into non-Indians have all failed because of 
the strength of spirit of our people.
    This strength is demonstrated in many ways: the survival of our 
language and culture, the willingness of our people to protect our 
aboriginal lands and territory, and our recent emergence as a growing 
economic power in our region of the country. Tribal government gaming 
has been the primary driver for our ability to address the problems in 
our community, on our terms, and support the culture and traditions 
that never left. I can testify today that gaming has brought not only 
economic benefits to our reservation but also positive impacts on 
Cherokee life expectancy, poverty rates, educational attainment, and 
the physical and mental wellbeing of Cherokee children.
    My testimony today will focus on the positive impacts Cherokee 
tribal gaming has had on Cherokee children.
Eastern Band Cherokee Reservation Before Gaming
    Before tribal government gaming came to Cherokee, our people 
struggled to get by in challenging economic conditions. The beauty of 
our homeland in the Great Smokey Mountains and our location at one of 
the entrance points of the Great Smokey Mountains National Park made 
tourism a natural industry for our reservation. But tourism in the 
mountains was seasonal. Most of the non-BIA or tribal government jobs 
were related to the tourism that came in May and left in October. Most 
of these jobs were for minimum wage in motels, craft shops, and small 
diners. Most of the rest of year provided very limited economic 
opportunities.
    Many families found themselves being split because people would 
have to travel off the reservation for work, sometimes for extended 
periods of time, to support their families in construction or other 
jobs. This situation tore at the fabric of the foundation of our 
society, our families.
Eastern Band Cherokee Reservation After Gaming
    In 1983, the Eastern Band opened its first bingo hall in Cherokee. 
Known as ``big money bingo'' at the time, the bingo operated twice 
monthly, offering higher payouts than other local bingos at the 
churches and employing less than 100 people. While bingo brought 
limited income and employment to the Tribe, many of our people learned 
more about the business of gaming and what added resources could do to 
change our community.
    The casino opened in November 1997 and has grown from a simple 
tribal operation to a large, complex, multi-product enterprise and 
tourist destination attracting 3.1 million visitors in 2013.
    Today, the reservation economy of the Eastern Band is in a period 
of strong growth. Visitor-generated gaming revenue totaled $513 million 
in 2013.
    The casino's economic impact extends to the Western North Carolina 
region, boosting per capita income from 70 percent of the state average 
in the mid-1990s to more than 80 percent today, reducing historically 
high unemployment rates and raising employment to the statewide 
average. Our Tribal gaming enterprise spent $28 million on North 
Carolina vendors for goods and services in 2011.
    The Cherokee Preservation Foundation, funded by gaming revenues to 
create new businesses and initiatives that provide the region's 
residents with greater opportunity and stability, has contributed a 
leveraged impact of about $99 million for additional social 
improvements, environmental enhancements, workforce development, and 
cultural preservation in the region.
    With gaming dollars, the Tribe spent $5 million on Downtown 
Revitalization Project, $13 million on affordable housing, and $20 
million on a new Justice Center.
    The Eastern Band is helping to build infrastructure with a $16 
million investment into a 300-mile broadband fiber network that 
connects to every school and hospital in Western North Carolina
    The Eastern Band is creating jobs for our people and our neighbors. 
80 percent of our 3,000 plus employees are non-members of the Eastern 
Band.
Impacts on Cherokee Children
    Today, a new generation of Cherokee children can learn their native 
Cherokee language through the creation of the Kituwah Language and 
Preservation Academy, which is funded with $7 million from gaming 
revenues. The school operates for children ages 6 weeks through the 
fifth grade and has adopted North Carolina state education standards. 
Our children study a standard course of education using Cherokee as 
their first language. But our commitment to our children's success has 
driven us to develop an English course as well.
    Thanks to gaming, the Cherokee tribal schools have one of the most 
beautiful facilities of any school in the region. The Tribe's $130 
million investment into Cherokee Central Schools, which are LEED 
certified, pre-k-12, and reflect Cherokee culture, brings greater 
opportunity to our young folks and builds pride in the community. This 
intergenerational learning complex was designed utilizing the most 
current theory of educational models including natural sunlight in 
every classroom, gymnasium, library and student spaces. It features a 
Gathering Place, a theatre in the round for the elementary students to 
host cultural programs. The Gathering Place is designed in the model of 
traditional council houses with seven sides. The classroom buildings 
are of similar design with interior courtyards. The Cherokee Central 
Schools also features a cultural arts center theatre with dance 
studios, an art gallery and a state of the art theatre which has hosted 
the North Carolina Symphony and the Atlanta Shakespeare Theatre as well 
as our own Cherokee Cultural night for students to showcase their own 
talents. More important is the athletic component of the school complex 
which was designed to address the diabetes epidemic in our community. 
We believe that teaching the children to control their health is an 
essential life lesson.
    The Eastern Band has built other athletic complexes to address that 
issue as well including the John A. Crowe Recreation Complex, softball 
and baseball fields, community gymnasiums in Birdtown, Painttown, 
Wolfetown, Big Cove, Big Y, and Snowbird. We have also converted an old 
textile factory building into the Ginger Welch Fitness Center, which 
includes a cardio room, weight room, indoor walking track, gymnasium 
and indoor pool to be enjoyed by children and families.
    The Tribe has constructed the Cherokee Skate Park, which was 
designed by our young people in conjunction with a professional design 
firm. The skate park provides another amenity for our people and for 
the visiting public. The Skate Park is also adjacent to the Cherokee 
Family Park, which hosts a public playground, picnic area and access to 
the Cherokee Riverwalk greenway.
    I was so pleased last week to help open the Snowbird Youth Center, 
a Boys and Girls Club located in the isolated Snowbird community 
located 45 minutes from Cherokee. The new $4.1 million center replaces 
an older center and provides classrooms, a dance studio, multipurpose 
room, gymnasium, teaching kitchens, a computer lab and hiking trails. 
The facility was built in conjunction with the National Forest Service 
through a land use agreement. We believe this partnership will foster 
more programs for this remote section of tribal lands in education and 
community forest partnerships.
    Even more profound than facilities and programs, research from Duke 
University Medical School, the Great Smokeys Study, shows that an 
infusion of income to tribal members can have a significant impact on 
the health and wellbeing among Cherokee children who grow up in the 
most financially stressed homes.
    Professor Jane Costello, an epidemiologist from Duke Medical 
School, had been following for four years 1,420 children living in 
rural Western North Carolina, a quarter of whom were Cherokee. Roughly 
one-fifth of the rural non-Indians in her study lived in poverty, 
compared with more than half of the Cherokee children. By 2001, gaming 
revenues had grown to a level that allowed the Tribe to provide direct 
assistance to tribal members. As a result, the number of Cherokees 
living below the poverty line had declined by half.
    According to the Duke study, the poorest children tended to have 
the greatest risk of psychiatric disorders, including emotional and 
behavioral problems. But just four years after the payments to Cherokee 
families from gaming revenues began, Professor Costello observed 
substantial improvements among those who moved out of poverty. The 
frequency of behavioral problems in Cherokee children declined by 40 
percent, nearly reaching the risk level of children who had never 
suffered from poverty.
    Minor crimes committed by Cherokee youth declined. On-time high 
school graduation rates improved. And by 2006, when the payments had 
grown to about $9,000 yearly per member, Professor Costello observed 
that the earlier the financial payments arrived in a child's life, the 
better that child's mental health in early adulthood.
    These Cherokee youth were roughly one-third less likely to develop 
substance abuse and psychiatric problems in adulthood, compared with 
the oldest group of Cherokee children and with neighboring rural whites 
of the same age.
    The Duke study also found that improvements to family income 
improved parenting quality. The assistance from gaming eased the strain 
of the feast-or-famine existence too many of our families were 
surviving in.
    Other evidence shows that these direct investments actually save 
the Tribe and the federal government money in the long run. Randall 
Akee, an economist at the University of California at Los Angeles and a 
collaborator of Professor Costello's, calculates that 5 to 10 years 
after age 19, the savings incurred by the Cherokee payments from gaming 
are greater than the initial costs. This study says that the Eastern 
Band Cherokee Tribal Government and the federal government benefit from 
savings in reduced criminality, a reduced need for psychiatric care, 
and savings gained from not repeating grades.
    These third-party studies demonstrate the remarkably positive 
influence Cherokee gaming has had on our Cherokee children.
Conclusion
    In conclusion, tribal government gaming is not simply about 
generating revenue for the tribal governments. The Eastern Band 
Cherokee experience is that gaming can dramatically impact the lives of 
Cherokee families, particularly our precious children in ways even we 
never dreamed possible.
    Thank you again for this opportunity to tell our story.

    The Chairman. Thank you, Chief Hicks. Jane Costello has 
been in front of this Committee and actually used your tribe as 
an example. It was compelling testimony.
    Ernie Stevens, you are up.

STATEMENT OF ERNEST L. STEVENS, JR., CHAIRMAN, NATIONAL INDIAN 
                       GAMING ASSOCIATION

    Mr. Stevens. Good afternoon, Mr. Chairman, Vice Chairman 
Barrasso. I would like to thank you for allowing me this 
opportunity. I would like to acknowledge the tribal leadership 
in the room today led by President Brian Cladoosby of the 
National Congress of American Indians.
    Thank you for this opportunity to testify on the next 25 
years of Indian gaming. Any discussion of Indian gaming must 
begin with tribal sovereignty, sovereignty that is acknowledged 
by the constitution through treaties with this Nation and 
through hundreds of Federal court decisions like the Supreme 
Court's Cabazon case. Finally, sovereignty that is acknowledged 
through the hundreds of Federal laws like the Indian Gaming 
Regulatory Act.
    Indian gaming is Indian self-determination. Gaming is an 
exercise of inherent authority affirmed, confirmed and guided 
by the Indian Gaming Regulatory act. One of the Committee's 
earliest hearings on Indian gaming took place in 1984. At the 
time there were approximately 80 tribes engaged in gaming. Many 
of those operations took place in temporary pop-up buildings or 
local tribal gyms.
    Back in the early 1970s, I remember the frustration as a 
young athlete wanting to work out in a basketball facility. Too 
often the gym was full with tables and food in preparation for 
evening bingo games. Back then, two moms that are still told 
about in this book called The Bingo Queens, they were community 
leaders, they sat me down and explained to me that our nation, 
with an economy that would keep our lights on, that was to help 
me understand that I couldn't play in the basketball gym if 
there were no lights. We played bingo to pay the bill.
    From those humble means, Indian gaming has responsibly 
grown to provide a steady source of revenue for 245 tribes in 
28 States. In 2013, Indian gaming generated $28 billion in 
direct revenue. Today the Oneida Nation has a state of the art 
fitness center and more than one gym that is dedicated to 
promoting exercise for all ages in our community. All this is a 
direct result of Indian gaming.
    For many tribes, Indian gaming is first and foremost about 
jobs. Indian gaming has provided opportunities that bring 
entire families back to the community. In the early 1980s, I 
couldn't find a job in my home or in the city of Green Bay and 
I left our community. As Indian gaming started to evolve, I 
finished my education and made it back home. I was elected to 
the tribal council in 1993 as gaming was really getting 
underway. With the success of our gaming operation, we had an 
employment base of 3,800 people. We were the top employer in 
northeast Wisconsin.
    Fast forward now to 2013. Indian gaming generated more than 
650,000 direct and indirect jobs. These jobs go to Indian and 
non-Indians alike. Without question, Mr. Chairman, we are 
putting people to work. Today Indian gaming is helping to 
maintain, generate and fuel an American economic recovery. 
Before I speak to regulation, I want to acknowledge the 
National Tribal Gaming Commission and Regulators Association 
Chairman Jamie Hummingbird, who had to cancel his trip today to 
stay with his family. Our prayers go out to the Hummingbird 
family, Mr. Chairman.
    Regulation is vital, and tribal leaders understand its 
importance. In 2013 alone, tribes invested $422 million on 
regulation. Our system employs 6,500 tribal, Federal and State 
regulators and staff to protect Indian gaming. The system is 
costly, it is comprehensive and our record and experience show 
us that it is working, Mr. Chairman.
    The first 25 years under IGRA has proven that Indian gaming 
is a strong tool that helps tribes overcome injustice and 
rebuild our communities. However, gaming is only one tool. To 
ensure that success continues for the next 25 years, we are 
working to diversify beyond gaming to strengthen small business 
in our young Native entrepreneurs. The next 25 years will also 
bring changes and constant challenges to Indian gaming, 
challenges that we are aware include concerns with the IGRA 
compacting process and the prospect of internet gaming.
    As you have heard, and you will hear more on the next 
panel, the issue of off-reservation gaming is also a challenge. 
The issue isn't new. It came to a head in Congress in 2006. 
NIGA member tribes took this issue head on. Indian gaming is 
about rebuilding Indian homelands. NIGA supports regulations to 
implement IGRA Section 20 that require tribes to show an 
aboriginal or historical connection to land sought for gaming. 
It also urges all tribes to respect and minimize any impacts on 
aboriginal rights of nearby tribes. NIGA has a standing 
resolution to this issue, Mr. Chairman.
    To prepare for these changes and challenges, Indian Country 
will rely on a strong partnership with this Committee, Congress 
and the Administration. Indian Country will remain united and 
work with NCAI in maintaining an open dialogue to build 
consensus. We must all work together to continue to meet IGRA's 
goal of strengthening tribal governments and achieving tribal 
economic self-sufficiency.
    In closing, Mr. Chairman, I want to share a very, very 
brief story. A year ago, when we wrapped up our legislative 
summer summit, a year ago almost to the day, sir, I returned 
home to be by my grandmother's side. I was able to hold her 
hand her last three days of her life. As I look back, we were 
able to celebrate her life's accomplishments. As a young girl, 
she was taken from her home and put into government-run 
boarding schools, as many as five in three States before she 
finished high school. The educational system that she endured 
was much different than when she retired from the Oneida 
Nation's school system in her mid-90s as a certified language 
instructor. She worked in a state of the art educational 
institution providing quality education combined with the 
strong language culture and tradition that was once forbidden 
in her world of boarding schools. She and her late brother, 
Amos Christjohn, who is also in this book, were certified 
school teachers into their 90s. My grandmother was a Turtle 
Clan faith keeper and young folks have been appointed to fill 
her shoes. Together they wrote a dictionary in the Oneida 
language as one of many things they did to preserve what was 
once forbidden in the educational system, the Oneida language. 
Again, this language was forbidden.
    Long after her brother's passing, one of Grandma's final 
projects, into her late 90s, was to digitize her own voice in 
this dictionary. After retirement, as Grandma wound down her 
life surrounded by her family and community, she did so in a 
state of the art nursing home named after her late sister, Anna 
John, her son, Ernie, Sr., also a resident, by her side.
    This is a clear and proud reflection of how far we have 
come. A new school for our children, a nursing home for our 
elders and a livable home for our community. Mr. Chairman and 
members of the community, I again thank you for this 
opportunity to testify and am prepared to answer any questions.
    [The prepared statement of Mr. Stevens follows:]

Prepared Statement of Ernest L. Stevens, Jr., Chairman, National Indian 
                           Gaming Association
Introduction
    Good afternoon Chairman Tester, Vice Chairman Barrasso, and Members 
of the Committee. My name is Ernest Stevens, Jr. I am a member of the 
Oneida Nation of Wisconsin and Chairman of the National Indian Gaming 
Association (NIGA). NIGA is an intertribal association of 184 federally 
recognized Indian tribes united behind the mission of protecting tribal 
sovereignty and preserving the ability of tribes to attain economic 
self-sufficiency through gaming and other endeavors. I want to thank 
the Committee for this opportunity to provide testimony on ``Indian 
Gaming: the Next 25 Years.''
    Over the course of the five-year Great Recession, Indian gaming not 
only survived but thrived in many regions. During the Recession, Indian 
gaming revenues helped many nearby communities get through the tough 
times, saving American jobs by providing funds for police officers, 
teachers, prosecutors, and much more. Indian gaming has played and is 
playing a large role in America's economic upturn. Today, tribal 
governmental gaming is producing more jobs and generating more income 
than ever before, and we are helping fuel America's recovery.
    Gaming has been a part of Native American culture from the 
beginning of time. Whether it is hand and stick games, bowl and dice 
games, horse and relay races, and much more--gaming has always been a 
part of our culture, ceremonies, and way of life. In contemporary 
times, Indian gaming added tribal bingo and pull-tabs operations that 
began in the 1960s and 1970s. These acts of Indian self-determination 
were met with legal challenges that eventually led to Congress' 
enactment of the Indian Gaming Regulatory Act (IGRA) in 1988.
    As I will detail below, the Act is far from perfect. However, over 
200 tribal governments have made IGRA work for our communities. The 
first twenty-five years of Indian gaming under IGRA have seen our 
Nations generate billions in tribal governmental revenue to rebuild our 
communities, provide reservation-based jobs to many who never worked 
before, and offer hope for an entire generation. I am confident that 
our industry is here to stay. The next twenty-five years will see 
Indian gaming maintain steady growth that will continue to strengthen 
Native governing bodies, empower tribal communities, restore and 
strengthen Native culture and language, and reinforce and build new 
relationships with our neighbors. We will continue to accomplish all of 
this while remaining dedicated to upholding the highest regulatory 
standards of any form of gaming in the United States.
Native Nations: Pre-Dating the U.S. Constitution
    Any discussion of Indian gaming must begin with the historic 
background of Native Nations that pre-dates the U.S. Constitution, 
evolves with the formation of the United States, and exists as a vital 
part of this Nation's Constitution.
    Before contact with European Nations, Indian tribes were 
independent self-governing entities vested with full authority and 
control over their lands, citizens, and visitors to Indian lands. The 
Nations of England, France, and Spain all acknowledged tribes as 
sovereigns and entered into treaties to establish commerce and trade 
agreements, form alliances, and preserve the peace.
    Upon its formation, the United States also acknowledged the 
sovereign authority of Indian tribes and entered into hundreds of 
treaties. Through these treaties, Indian tribes ceded hundreds of 
millions of acres of tribal homelands to help build this great Nation. 
In return, the United States made many promises to provide for the 
education, health, public safety and general welfare of Indian people. 
The U.S. Constitution specifically acknowledges these treaties and the 
sovereign authority of Indian tribes as separate governments. The 
Commerce Clause provides that ``Congress shall have power to ... 
regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes.'' Tribal citizens are referred to in the 
Apportionment Clause (``Indians not taxed'') and excluded from 
enumeration for congressional representation. The 14th Amendment 
repeats the original reference to ``Indians not taxed'' and 
acknowledges that tribal citizens were not subject to the jurisdiction 
of the United States. By its very text, the Constitution establishes 
the framework for the Federal Government-to-government relationship 
with Indian tribes. The Constitution finally acknowledges that Indian 
treaties, and the promises made, are the supreme law of the land.
    Over the past two centuries, the Federal Government has fallen far 
short in meeting these solemn promises and the government's resulting 
trust responsibility. The late 1800's federal policy of forced 
Assimilation authorized the taking of Indian children from their homes 
and sending them to military and religious boarding schools where they 
were forbidden from speaking their language or practicing their Native 
religions. The concurrent policy of Allotment sought to destroy tribal 
governing structures, sold off treaty-protected Indian lands, eroded 
remaining tribal land bases, and devastated our economies. Finally, the 
Termination policy of the 1950's again sought to put an end to tribal 
governing structures, eliminate remaining tribal land bases, and 
attempted to relocate individual Indians from tribal lands with the 
help of one-way bus tickets from Indian lands to urban areas with the 
promise of vocational education.
    These policies resulted in death of hundreds of thousands of our 
ancestors, the taking of hundreds of millions of acres of tribal 
homelands, the suppression of tribal religion and culture, and the 
destruction of tribal economies. The aftermath of these policies 
continues to plague Indian Country to this day.
Tribal Government Self-Determination and IGRA
    Tribal governments and individual Indians persevered. The United 
States acknowledged that Indian tribes were not going to fade away and 
recognized the failures of these policies. For more than 40 years now, 
the United States has fostered an Indian affairs policy that supports 
Indian self-determination and economic self-sufficiency.
    President Nixon made clear that the policy of self-determination is 
a direct rebuke to this Country's previous policy of termination. This 
self-determination policy has been reaffirmed by every successive 
President and continues to acknowledge that the Federal Government's 
solemn treaty and trust obligations remain fully in force. In his 
historic 1970 Message to Congress on Indian Affairs President Nixon 
stated the following:

         ``The special relationship between Indians and the Federal 
        Government is the result instead of solemn obligations which 
        have been entered into by the United States Government. Down 
        through the years through written treaties and through formal 
        and informal agreements, our government has made specific 
        commitments to the Indian people. For their part, the Indians 
        have often surrendered claims to vast tracts of land and have 
        accepted life on government reservations. In exchange, the 
        government has agreed to provide community services such as 
        health, education and public safety, services which would 
        presumably allow Indian communities to enjoy a standard of 
        living comparable to that of other Americans.''

    Tired of waiting on the United States to fulfill these promises, a 
handful of tribal governments in the late 1960s and early 1970s 
embraced self-determination and took measures to rebuild their 
communities by opening the first modern Indian gaming operations. These 
tribal governments used the revenue generated to fund essential tribal 
government programs, cover the federal shortfalls, and to meet the 
basic needs of their people.
    State governments and commercial gaming operations challenged these 
acts of Indian self-determination both in Congress and in the federal 
courts. The legal challenges to the exercise of tribal governmental 
gaming culminated in the Supreme Court's California v. Cabazon Band of 
Mission Indians decision issued in February of 1987. The Cabazon Court 
upheld the right of Indian tribes, as governments, to conduct gaming on 
their lands free from state control or interference. The Court reasoned 
that Indian gaming is crucial to tribal self-determination and self-
governance because it provides tribal governments with a means to 
generate governmental revenue for essential services and functions. The 
decision vindicated the right of tribal governments to engage in gaming 
activity free of interference from state governments. With the Cabazon 
decision, the debate in Congress and the legislative momentum and 
leverage shifted from the state/commercial gaming industry position to 
the tribal government position.
    After Cabazon, states and commercial gaming interests nevertheless 
doubled their legislative efforts, urging Congress to enact limits on 
Indian gaming. Their primary rationale for opposing Indian gaming was 
the threat of organized crime. However, this Committee found that after 
approximately fifteen years of gaming activity on Indian reservations 
(as of 1988) there had never been one clearly proven case of organized 
criminal activity.
    At the same time, many tribal leaders opposed the legislative 
proposals that became IGRA. Their opposition focused primarily on the 
proposal in IGRA that required tribal governments to enter into 
compacts with the states in order to conduct Class III gaming. States 
have historically been adversaries of tribal sovereignty, seeking to 
regulate, tax, and impose jurisdiction over Indian lands. In addition, 
Indian tribes entered into solemn treaties with the United States, not 
the several states.
    In October of 1988, approximately 18 months after the Cabazon 
decision, Congress enacted IGRA. The stated goals of IGRA include the 
promotion of tribal economic development and self-sufficiency, 
strengthening tribal governments, and establishing a federal framework 
to regulate Indian gaming. The Act also established the National Indian 
Gaming Commission (NIGC). While there are dozens of forms of gaming 
across America, the NIGC is the only federal agency that directly 
regulates gambling in the United States.
    In the end, IGRA is a compromise that balances the interests of 
tribal, federal, and state governments. However, the Act is grounded 
and premised on the fundamental principle of Indian law that government 
powers retained by an Indian tribe are not, in general, delegated 
powers granted by express acts of Congress, but rather ``inherent 
powers of a limited sovereignty which has never been extinguished.'' 
The Act acknowledges that Indian tribes still possess those aspects of 
sovereignty not withdrawn by treaty or statute. This principle guides 
determinations regarding the scope of tribal authority in general and 
in particular when implementing and interpreting IGRA.
    As you can see, IGRA did not come from Indian Country. The Act is 
far from perfect, and the U.S. Supreme Court has added to its 
imperfections. However, for twenty-five years now, more than 200 tribes 
nationwide have made IGRA work to help begin to rebuild our communities 
and meet the stated goals of the Act.
The State of Indian Gaming: IGRA'S First 25 Years
    It would be an understatement to say that Indian gaming has come 
far in the past twenty-five years. Congress first began consideration 
of legislation to regulate Indian gaming in 1984. In June of 1984, the 
Interior Department's Deputy Assistant Secretary for Indian Affairs 
testified that approximately 80 tribal governments were engaged in 
gaming with estimated revenues in the tens of millions. At the time, 
and for some time after the enactment of IGRA, many tribal gaming 
operations began in temporary pop-up buildings or local tribal gyms.
    Back in the early 1980s, I was playing basketball in the gym on our 
Reservation. I remember that at least once a week the volunteers and 
community leaders would chase us kids away to make room for chairs and 
tables and food and to prepare for the evening's bingo games. Those 
hard working Tribal volunteers and tribal government workers explained 
at that time how Bingo revenues paid for the recreational equipment we 
used and for the utility bills that kept the lights on at the gym. 
Those prescient leaders probably foresaw today as our reservation has a 
state of the art fitness center with more than a few gyms for our 
Tribal youth to enjoy.
    I know many Tribes whose gaming operations began from these humble 
means, and Indian gaming has responsibly grown to provide a steady 
source of governmental revenue for Indian tribes nationwide. In 2013, 
245 tribal governments operated 445 gaming facilities in 28 states, 
helping Indian gaming grow to $28.6 billion in direct revenues and $3.5 
billion in ancillary revenues \1\ for a total of $32.1 billion in total 
revenues. This represents a 2.5 percent increase from 2012. It's been 
said before, but it holds true to this day: Indian gaming is the most 
successful tool for economic development for many Indian tribes in over 
two centuries.
---------------------------------------------------------------------------
    \1\ Ancillary revenues include hotels, food and beverage, 
entertainment, and other activities related to a tribal government's 
gaming operation.
---------------------------------------------------------------------------
    Many tribes have used revenue from Indian gaming to put a new face 
on their communities. Indian tribes have dedicated gaming revenues to 
improve basic health, education, and public safety services on Indian 
lands. We have used gaming dollars to improve tribal infrastructure, 
including the construction of roads, hospitals, schools, police 
buildings, water projects, and many others.
Indian Gaming and Job Creation
    For many tribes, Indian gaming is first and foremost about jobs. 
While Indian gaming has provided a significant source of revenue for 
some tribal governments, many tribes engaged in Indian gaming continue 
to face significant unmet needs in their communities. For these 
communities, Indian gaming and its related activities have brought the 
opportunity for employment to Indian lands that have been without such 
opportunity in recent memory.
    I went to college at Haskell University in the early 1980s in part 
because I could not find a job, not on my Reservation or even in the 
surrounding Green Bay community. As Indian gaming started to evolve I 
finished my education and made my way back home. I was elected to the 
Tribal Council in 1993, as gaming was really getting underway for our 
Tribe. With the success of our Gaming operation we had an employment 
base of 3,800 people on our reservation that drew heavily from the 
surrounding Green Bay community. We remain one of the top employers in 
northeastern Wisconsin. Not only did Indian gaming find work for a lot 
of Indian people in my neighborhood, but we also found work for a lot 
of non-Indian people in our neighboring communities who came and worked 
for the Oneida Tribe.
    Nationwide, Indian gaming is a proven job creator. Indian gaming 
delivered over 665,000 direct and indirect American jobs in 2013 alone. 
Indian gaming has provided many Native Americans with their first 
opportunity at work at home on the reservation. Just as importantly, 
jobs on the reservation generated by Indian gaming are bringing back 
entire families that had moved away. Because of Indian gaming, 
reservations are again becoming livable homesteads, as promised in 
hundreds of treaties. As I noted above, these American jobs go to both 
Indians and non-Indians alike. Throughout the Recession, Indian gaming 
continued to create jobs and keep people employed in one of the 
toughest times in American history. Without question, we are putting 
people to work.
    Of course, far too many tribal communities continue to suffer the 
devastating impacts of the past failed federal policies. Too many of 
our people continue to live with disease and poverty. Indian health 
care is substandard, violent crime is multiple times the national 
average, and unemployment on Indian reservations nationwide averages 50 
percent. Our Native youth are the most at-risk population in the United 
States, confronting disparities in education, health, and safety. 
Thirty-seven percent of Native youth live in poverty. Native youth 
suffer suicide at a rate 2.5 times the national average. Fifty-eight 
percent of 3- and 4-year-old Native children do not attend any form of 
preschool. The graduation rate for Native high school students is 50 
percent.
    Indian gaming is part of the answer, but all of us-tribal leaders, 
mentors, federal agencies, and Congress--can and must do more to 
reverse these horrific statistics and establish more opportunities for 
all residents of Indian Country.
Expanding the Reach of Indian Gaming's Benefits
    To broaden the economic success of Indian gaming, NIGA is working 
with our Member Tribes to further encourage tribe-to-tribe giving and 
lending. Through our American Indian Business Network, we work to 
highlight the benefits of hiring Native owned businesses and 
procurement of Native produced goods and services. Empowering tribal 
entrepreneurs and tribal government owned businesses, will serve to 
further diversify and strengthen tribal economies.
    NIGA applauds the Administration's efforts to strengthen 
implementation of the Buy Indian Act by targeting qualified tribal 
government-owned and individual Indian-owned businesses in the federal 
procurement process. These efforts fully comport with the stated goals 
of Indian self -determination and the government's treaty and trust 
obligations to Indian Country.
    Indian gaming operations offer an anchor to reservation economic 
development for 225 Native Nations, but tribal governments need help to 
fulfill Indian Country's full potential. That help must come from the 
Federal Government in the form of infrastructure development, tax 
incentives, consistent and strong base funding levels to meet treaty 
and trust obligations to help tribal governments provide basic services 
to our citizens, and more.
    For decades, the primary barrier to tribal economic development has 
been the lack of basic infrastructure for water, roads, and sewer 
services. In addition, there is a massive digital divide in Indian 
Country that not only fails to support new businesses--it scares them 
away. Indian gaming helps provide some tribes with funding for massive 
infrastructure projects, but many more continue to rely on federal 
funds for these significant projects. Federal funding mechanisms for 
infrastructure development should be altered to provide direct funding 
to tribal governments in the same manner that federal funds flow to 
state and local governments for infrastructure development. Self-
determination is not a termination of the government's treaty and trust 
obligations. We must continue to work together to rebuild our 
communities.
    Indian gaming is helping shape our next generation of Native 
leaders. Gaming revenues are providing Native youth with educational 
opportunities that were not available prior to gaming. Many others see 
their friends and relatives become Native entrepreneurs, and see that 
it's possible to succeed. We have to continue that trend. We have to 
move our economies forward, not just in diversifying beyond gaming to 
other tribal government-run entities, but by providing incentives for 
our Native entrepreneurs to stay home or come home to build their dream 
business. But we can't do it alone.
Good Neighbors: Reinforcing Existing and Forging New Relationships

         ``It is a long- and well-established principle of Federal-
        Indian law as expressed in the United States Constitution, 
        reflected in Federal statutes, and articulated in decisions of 
        the Supreme Court, that unless authorized by an act of 
        Congress, the jurisdiction of State governments and the 
        application of state laws do not extend to Indian lands. In 
        modern times, even when Congress has enacted laws to allow a 
        limited application of State law on Indian lands, the Congress 
        has required the consent of tribal governments before State 
        jurisdiction can be extended to tribal lands.'' Sen. Rept. No. 
        100-446, at 5.

    IGRA's requirement that tribal governments enter into compacts and 
other agreements with state governments was the primary reason that 
many Indian tribes opposed the legislation. When Congress debated IGRA 
in the mid-1980s, tribal-state relations were not only contentious--in 
many cases it was hostile and combative.
    However, over the past twenty-five years under IGRA, many tribal 
and state governments have forged strong relationships that have worked 
to benefit all Americans. An unexpected outgrowth of IGRA is the 
increased partnerships that have been forged between tribal, state and 
local governments over the past twenty-five years. Effective tribal-
state partnerships enhance economic development in both of our 
communities.
    IGRA of course envisioned that tribal and state leaders would come 
together in the best interests of their citizens and their governments 
to negotiate and reach agreements on Class III gaming compacts. In some 
cases, these compact negotiations were exhaustive, time consuming and 
costly to both parties. In some case, they have gone smoothly. In a few 
unfortunate cases, they have yet to take place. In those instances 
where the compacting process has worked, it has greatly benefitted both 
tribal and state communities.
    The overall bottom line is that Indian gaming, in addition to 
revitalizing tribal communities, has established a steady source of 
revenue to state governments.
    In 2013, Indian gaming generated over $13.6 billion for federal, 
state and local government budgets through compact and service 
agreements, indirect payment of employment, income, sales and other 
state taxes, and reduced general welfare payments. Despite the fact 
that Indian tribes are governments, not subject to direct taxation, 
individual Indians pay federal income taxes, the people who work at 
casinos pay taxes, and those who do business with tribal casinos pay 
taxes. As employers, tribes also pay employment taxes to fund social 
security and participate as governments in the federal unemployment 
system.
    While IGRA is explicitly limited to gaming-related agreements, \2\ 
the gaming compact negotiation process has brought many tribal and 
state governments to the negotiating table that never sat in the same 
room. Putting tribal leaders together with state governors, 
legislators, and local government officials has fostered relationships 
that have led to a wide array of inter-governmental agreements covering 
areas of taxation, cross-deputization, and more. These agreements have 
fostered goodwill and greater understanding that serves everyone 
involved.
---------------------------------------------------------------------------
    \2\ IGRA is clear that the tribal-state compacting process is 
limited to activities related to Indian gaming. The Act provides that 
state may negotiate for assessments in such amounts as are necessary to 
defray the costs of regulating gaming-related activity. However, the 
Act is explicit in providing that it does not confer ``upon a State or 
any of its political subdivisions authority to impose any tax, fee, 
charge, or other assessment upon an Indian tribe. . .to engage in a 
Class III activity. No State may refuse to enter into [compact] 
negotiations. . .based upon the lack of authority in such State, or its 
political subdivisions, to impose such a tax, fee, charge, or other 
assessment.''
---------------------------------------------------------------------------
    In addition, Indian tribes also made more than $100 million in 
charitable contributions to other tribes, nearby state and local 
governments, and non-profits and private organizations. A June 2011 
National Public Radio report, titled ``Casino Revenue Helps Tribes Aid 
Local Governments,'' acknowledged that contributions from the 
Stillaguamish Tribe of Washington helped prevent additional layoffs at 
the local Everett, Washington prosecutor's office. The article also 
noted to the $1.3 million that the Tulalip Tribes recently gave to the 
local school district after they heard about possible budget cuts and 
teacher layoffs. These same scenarios took place in hundreds of local 
jurisdictions throughout the United States. Indian gaming revenues 
saved thousands of jobs for American health care workers, fire 
fighters, police officers, and many other local officials that provide 
essential services through the Recession.
    Indian gaming has also increased the political participation of 
tribal governments and individual Native Americans nationwide. One 
positive outgrowth of this increased participation is that many Native 
people are now seeking office in state and local government.
    The National Caucus of Native American State Legislators (NCNASL), 
formed in 1992, now has 76 members in 17 states. My good friend Kevin 
Killer served as Treasurer of the Caucus' Executive Board in 2013. The 
Caucus works to promote a better understanding of state-tribal issues 
among policymakers and the public at large. Members work to encourage a 
broad awareness of state-tribal issues and raise the profile of tribal 
issues throughout the state legislative arena. The strength of 
individual Native American legislators increases the ability of the 
state legislatures to more appropriately address tribal issues and 
develop public policy in cooperation with tribal governments.
    While Indian Country has come a long way in the past twenty-five 
years, the relationships built with our neighboring governments will 
benefit future generations in ways that we have yet to realize.
Indian Gaming Regulation
    Tribal governments realize that none of these benefits would be 
possible without a strong regulatory system that protects tribal 
revenue and preserves the integrity of our operations. The regulatory 
system established under IGRA vests local tribal government regulators 
with the primary day-to-day responsibility for regulating Indian gaming 
operations. This only makes sense, because no one has a greater 
interest in protecting the integrity of Indian gaming than tribal 
governments.
    While tribes take on the primary day-to-day role of regulating 
Indian gaming operations, IGRA requires coordination and cooperation 
with the federal and state governments to make this comprehensive 
regulatory system work. Under the Act, the NIGC has direct authority to 
monitor Class II gaming on Indian lands on a continuing basis and has 
full authority to inspect and examine all premises on which Class II 
gaming is being conducted.
    Class III gaming is primarily regulated through a framework 
established through individual tribal-state gaming compacts. Here the 
two sovereigns agree upon a framework to regulate Class III gaming 
based on arm's length negotiations.
    However, Congress intended that the NIGC would maintain an 
oversight of Class III gaming. As a result, under the Act, the NIGC:

   reviews and approves Class III tribal gaming regulatory laws 
        and ordinances;

   reviews tribal background checks and gaming licenses of 
        Class III gaming personnel;

   receives and reviews annual independent audits of tribal 
        gaming facilities, including Class III gaming (all contracts 
        for supplies and services over $25,000 annually are subject to 
        those audits);

   approves all tribal management contracts; and

   works with tribal gaming regulatory agencies to ensure 
        proper implementation of tribal gaming regulatory ordinances.

    This comprehensive system of regulation is expensive and time 
consuming, but tribal leaders know what's at stake and know that strong 
regulation is the cost of a successful operation. Through the 
Recession, tribal governments have continued to dedicate tremendous 
resources to the regulation of Indian gaming. In 2013, tribes spent 
more than $422 million on tribal, state, and federal regulation:

   $319 million to fund tribal government gaming regulatory 
        agencies;

   $83 million to reimburse states for state regulatory 
        activities negotiated and agreed to pursuant to approved 
        tribal-state Class III gaming compacts; and

   $20 million to fully fund the operations and activities of 
        the National Indian Gaming Commission.

    There are over 6,500 tribal, state, and federal regulators working 
together to maintain the integrity of Indian gaming. \3\ NIGC is the 
Federal civil regulatory agency primarily responsible--along with 
tribal and state regulators--for regulation of Indian gaming on Indian 
lands. Tribal governments employ approximately 5,900 gaming regulators 
and states employ approximately 570 regulators. \4\
---------------------------------------------------------------------------
    \3\ NIGC Testimony before the Senate Committee on Indian Affairs, 
July 25, 2012.
    \4\ Id.
---------------------------------------------------------------------------
    At the federal level, the NIGC employs more than 100 regulators and 
staff. In addition to the NIGC, a number of other federal officials 
help regulate and protect Indian gaming operations. Tribes work with 
the FBI and U.S. Attorneys offices to investigate and prosecute anyone 
who would cheat, embezzle, or defraud an Indian gaming facility--this 
applies to management, employees, and patrons. 18 U.S.C.  1163. Tribal 
regulators also work with the Treasury Department's Internal Revenues 
Service to ensure federal tax compliance and the Financial Crimes 
Enforcement Network (FinCEN) to prevent money laundering. Finally, 
tribes work with the Secret Service to prevent counterfeiting.
    Against this backdrop of comprehensive regulation, the FBI and the 
Justice Department have repeatedly testified that there has been no 
substantial infiltration of organized crime on Indian gaming. This 
system is costly, it's comprehensive, and our record and our experience 
shows that it's working.
Indian Gaming: The Next 25 Years
    As I stated at the onset, NIGA is confident that the next twenty-
five years will see Indian gaming maintain steady responsible growth 
that will further empower tribal communities. Just as much has changed 
in the first twenty-five years under IGRA, Indian Country will continue 
to adapt and anticipate future changes and make our own positive change 
to advance tribal sovereignty and tribal government self-sufficiency.
Tribal-State Compacting Process
    One change that NIGA will continue to work for is to restore 
balance to the IGRA compacting process. I've twice noted to the fact 
that many prominent tribal leaders opposed IGRA because of the Class 
III compacting process. These leaders did not trust that state 
governments would respect their obligations to negotiate in good faith, 
or more fundamentally--negotiate.
    This Committee's Report on IGRA sought to alleviate these concerns:

         ``[IGRA] grants a tribe the right to sue a State if compact 
        negotiations are not concluded. This section is the result of 
        the Committee balancing the interests of States in regulating 
        such gaming. Under this Act, Indian tribes will be required to 
        give up any legal right they may now have to engage in Class 
        III gaming if: (1) they choose to forgo gaming rather than to 
        opt for a compact that may involve State jurisdiction; or (2) 
        they opt for a compact and, for whatever reason, a compact is 
        not successfully negotiated. In contrast, States are not 
        required to forgo any State governmental rights to engage in or 
        regulate Class III gaming except whatever they may voluntarily 
        cede to a tribe under a compact. Thus, given this unequal 
        balance, the issue before the Committee was how to best 
        encourage States to deal fairly with tribes as sovereign 
        governments. The Committee elected, as the least offensive 
        option, to grant tribes the right to sue a State if a compact 
        is not negotiated and chose to apply the good faith standard as 
        the legal barometer for the State's dealing with tribes in 
        Class III gaming negotiations. . . . The Committee recognizes 
        that this may include issues of a very general nature and, and 
        course, trusts that courts will interpret any ambiguities on 
        these issues in a manner that will be most favorable to tribal 
        interests consistent with the legal standard used by courts for 
        over 150 years in deciding cases involving Indian tribes.''

        Senate Report 100-446, at 15 (Aug. 3, 1988).

    This compromise and the balance that it struck were short-lived. 
Eight years after enactment, the United States Supreme Court destroyed 
any balance to the IGRA compacting process in its 1996 decision in 
Seminole Tribe of Florida v. Florida. The Court held that Congress did 
not have the power to waive the states' 11th Amendment sovereign 
immunity from suit in federal court to enforce IGRA's good faith 
compact negotiation obligation imposed on the states.
    Without a method to enforce the state's obligation to negotiate or 
renegotiate compacts in good faith, many tribal governments are left 
with the no-win proposition of either not moving forward on a project 
that could be its only source of non-federal revenue or succumbing to 
what could be viewed as a direct violation of the Act. IGRA makes clear 
that the compacting process cannot be used by the states to impose any 
tax or other fee upon the tribes that is not directly related to its 
regulatory expenses under the compact. The Act provides--``No State may 
refuse to enter into [compact] negotiations . . . based upon a lack of 
authority to impose such a tax, fee, charge, or other assessment.''
    NIGA's Member Tribes have consistently held the position against 
opening IGRA for amendment. However, if Congress makes the decision to 
alter the Act, the first provision in any proposal must either restore 
balance to the compacting process or provide teeth to an alternative 
administrative compacting process.
Class II Indian Gaming
    Another aspect of Indian gaming that has undergone continuous 
change over the first twenty-five years and will continue to face 
change is the Class II industry. Indian Country is vigilant that any 
changes to Class II Indian gaming are positive changes consistent with 
Congress' intent that tribal governments take advantage of the 
advancing technology to facilitate the play of such games.
    As discussed above, the Seminole decision destroyed the careful 
balance that IGRA struck in the Class III tribal-state gaming 
compacting process. This decision has resulted in a number of states 
that condone and regulate other forms of gaming essentially exercising 
veto authority over Class III Indian gaming. As a result, some tribes 
rely solely on Class II gaming to generate governmental revenue to 
provide essential services to meet the many needs of their communities.
    IGRA defines Class II Indian gaming as the game of chance commonly 
known as bingo (whether or not played in connection with electronic or 
technologic aids), played for monetary prizes, with cards bearing 
numbers or other designations, in which the card holder covers numbers, 
in which the game is won by the first person covering an arrangement, 
including (if played in the same location) pull-tabs, lotto, punch 
boards, tip jars, instant bingo, and other games similar to bingo.
    This Committee's Report to IGRA clarifies the intent the definition 
of Class II gaming is not static, and instead must be flexible to 
enable tribal governments to employ advanced and latest technology:

         The Committee specifically rejects any inference that tribes 
        should restrict Class II games to existing game sizes, levels 
        of participation, or current technology. The Committee intends 
        that tribes be given the opportunity to take advantage of 
        modern methods of conducting Class II games and the language 
        regarding technology is designed to provide maximum 
        flexibility. In this regard, the Committee recognizes that 
        tribes may wish to join with other tribes to coordinate their 
        Class II operations and thereby enhance the potential of 
        increasing revenues. For example, linking participant players 
        at various reservations whether in the same or different 
        States, by means of telephone, cable, television or satellite 
        may be a reasonable approach for tribes to take. Simultaneous 
        games participation between and among reservations can be made 
        practical by use of computers and telecommunications technology 
        as long as the use of such technology does not change the 
        fundamental characteristics of the bingo or lotto games and as 
        long as such games are otherwise operated in accordance with 
        applicable Federal communications law. In other words, such 
        technology would merely broaden the potential participation 
        levels . . . 

         Section (4)(8)(A) also makes clear the Committee's intent that 
        pull-tabs, punch boards, tip jars, instant bingo and similar 
        sub-games may be played as integral parts of bingo enterprises 
        regulated by the act and, as opposed to free standing 
        enterprises of these sub-games, state regulatory laws are not 
        applicable to such sub-games, just as they are not applicable 
        to Indian bingo.

        Senate Report 100-446, at 9 (Aug. 3, 1988).

    From the early 1990s to the mid-2000s, the NIGC and the Justice 
Department worked to the detriment of tribal governments, creating 
great uncertainty in the area of Class II Indian gaming. The Commission 
and DOJ narrowly defined the scope of Class II games. With little 
tribal input, the NIGC developed unworkable proposed gaming 
classification standards that went beyond the statutory authority 
granted to the Commission in IGRA and that threatened the economic 
viability of Class II gaming. Many of these proposed regulations sought 
to limit Class II games to only those in play in 1988. These views 
stood in direct conflict with the above-stated congressional intent. A 
Report commissioned by the NIGC, titled ``The Potential Economic Impact 
of the October 2007 Proposed Class II Regulations.'' The Report found 
that the NIGC proposal ``would have a significant negative impact on 
Indian tribes'', including decreases in gaming and non-gaming revenue, 
Indian gaming facility closures, a decrease in jobs, and wide range of 
broader negative impacts on Native economies. \5\
---------------------------------------------------------------------------
    \5\ Meister, ``The Potential Economic Impact of the October 2007 
Proposed Class II Gaming Regulations'' submitted to the NIGC, February 
1, 2008. Found at http://www.nigc.gov/Portals/0/NIGC%20Uploads/
lawsregulations/proposedamendments/MeisterReport2FINAL2108.pdf
---------------------------------------------------------------------------
    In 2005, the Department of Justice proposed amendments to the 
Johnson Act, entitled the ``Gambling Devices Act Amendments of 2005.'' 
This proposal would have radically restructured the regulatory scheme 
that applies to Indian gaming. It would have also reduced the scope of 
Class II gaming by either rendering existing Class II games unlawful or 
reclassifying them as Class III games.
    A number of federal courts addressing the application of the 
Johnson Act to Class II gaming have found that the Act simply does not 
apply to Class II technologic aids. See United States v. 162 Megamania 
Gambling Devices, 231 F.3d 713, 715 (10th Cir. 2000) (``Congress did 
not intend the Johnson Act to apply if the game at issue fits within 
the definition of a Class II game, and is played with the use of an 
electronic aid.''); United States v. 103 Electronic Gambling Devices, 
223 F.3d 1091, 1102 (9th Cir. 2000) (rejecting the notion that the 
Johnson Act extends to technologic aids to the play of bingo); Diamond 
Game Enterprises v. Reno, 230 F.3d 365, 367 (D.C. Cir. 2000) (noting 
that Class II aids permitted by IGRA do not run afoul of the Johnson 
Act); United States v. Burns, 725 F.Supp. 116, 124 (N.D.N.Y. 1989) 
(indicating that IGRA makes the Johnson Act inapplicable to Class II 
gaming and therefore tribes may use ``gambling devices'' in the context 
of bingo).
    The Ninth Circuit in United States v. 103 Electronic Gambling 
Devices rejected the Justice Department's antiquated reading of the 
scope of bingo under IGRA:

         ``The Government's efforts to capture more completely the 
        Platonic `essence' of traditional bingo are not helpful. 
        Whatever a nostalgic inquiry into the vital characteristics of 
        the game as it was played in our childhoods or home towns might 
        discover, IGRA's three explicit criteria, we hold, constitute 
        the sole and legal requirements for a game to count as Class II 
        bingo. . . . All told . . . the definition of bingo is broader 
        than the government would have us read it. We decline the 
        invitation to impose restrictions on its meaning besides those 
        Congress explicitly set forth in the statute. Class II bingo 
        under IGRA is not limited to the game we played as children.''

    In Seneca-Cayuga Tribe of Oklahoma v. Nat'l Indian Gaming 
Commission, 327 F.3d. 1019, 1032 (10th Cir. 2003), the Tenth Circuit 
similarly rejected the NIGC's narrow reading of Class II games. That 
court held that:

         ``Absent clear evidence to the contrary, we will not ascribe 
        to Congress the intent both to carefully craft through IGRA 
        this protection afforded to users of Class II technologic aids 
        and to simultaneously eviscerate those protections by exposing 
        users of Class II technologic aids to Johnson Act liability for 
        the very conduct authorized by IGRA. A better reading of the 
        statutory scheme is that through IGRA, Congress specifically 
        and affirmatively authorized the use of Class II technologic 
        aids, subject to compliance with the other IGRA provisions that 
        govern Class II gaming. Moreover, by shielding Indian country 
        users of Class II technologic aids from Johnson Act liability, 
        this construction gives meaning to both statutes, rather than 
        neutering one of legal import.''

    The federal courts and public sentiment sufficiently put to rest 
the NIGC's narrow proposed rule and the Justice Department's dangerous 
legislative proposal to narrowly interpret Class II Indian gaming. The 
NIGC proposed rules were withdrawn and the DOJ proposal did not gain 
traction in Congress.
    In recent years, the NIGC and Tribal regulators have worked 
together to strengthen all regulatory aspects of Indian Gaming. Indian 
gaming is one of the most regulated industries in America and we are 
proud to stand on our record of strong regulation, adaptive 
technologies, and revolutionary gaming innovations. We look forward to 
further strengthening Class II Indian gaming, changing with advances in 
technology as this Committee intended over the next twenty-five years 
under IGRA.
Internet Gambling in the United States
    Any discussion of the future of Indian gaming, and for that matter, 
the future of the gaming industry in the United States, must 
acknowledge the Internet as part of that future. The debate in Congress 
regarding Internet gaming has been ongoing for more than 15 years. 
NIGA's position on the issue has been consistent from the beginning. I 
first testified on the issue before the House Financial Services 
Committee in July of 2001. Then I stated that, ``NIGA is not seeking 
legislation that would expand, promote, or prohibit Internet gaming. 
However, we do ask that any legislation that goes forward, preserves 
the rights of Tribal governments under existing law, and offers them 
the same opportunity to participate in Internet gaming as any other 
entity.'' Our position has not changed.
    Over the ensuring years, NIGA's Member Tribes have developed 
principles to guide legislation that would legalize Internet gaming in 
the United States. These principles were developed over dozens of 
meetings with NIGA's Internet Gaming Subcommittee, the NIGA-National 
Congress of American Indians' (NCAI) Gaming Task Force, and with input 
from many of the regional tribal gaming associations. In sum, they are 
directives from our tribal leadership, which is guided by the mission 
to protect tribal sovereignty and to protect rights of all tribes to 
shape their economic futures. Our principles are grounded in that 
mission. If Congress acts to legalize Internet gaming in the United 
States, such legislation must:

   acknowledge Indian tribes as sovereign governments with a 
        right to operate, regulate, tax and license Internet gaming, 
        and those rights must not be subordinated to any non-federal 
        authority;

   make legal Internet gaming available to all federally 
        recognized Indian tribes, and tribal Internet gaming must be 
        available to customers in any location where Internet gaming is 
        not criminally prohibited;

   acknowledge that tribal Internet gaming revenues are not 
        subject to taxation, as tribal government revenues are 
        dedicated to the benefit of our communities and thus are 100 
        percent taxed;

   existing tribal government rights under tribal-state 
        compacts and IGRA;

   not open IGRA for amendments in Congress;

   provide positive economic benefits to Indian Country to 
        offset potential economic harm caused by legalization; and

   provide tribal governments with the right to opt in to a 
        federal regulatory scheme, and not subject tribal eligibility 
        to a state government's decision to opt-out.

    We simply ask that Congress acknowledge the Constitution's 
recognition of Indian tribes as separate governments. In addition, we 
ask that, like IGRA, federal Internet gaming legislation acknowledge 
that Indian tribes still possess those aspects of sovereignty not 
withdrawn by treaty or statute, or by implication ``as a necessary 
result of their status.'' These fundamental principles of federal 
Indian law must be maintained.
Land Into Trust For Gaming Purposes
    The issue of Indian gaming on lands placed into trust for gaming 
purposes has been a point of debate since enactment. From 2005 to 2006 
the 109th Congress examined several proposals to amend IGRA's Section 
20 process. IGRA's Section 20 establishes the general rule that Indian 
gaming shall be conducted on Indian lands held in trust prior to 
enactment of the Act on October 17, 1988. However, the same provision 
balances this general prohibition with several exceptions to account 
for past wrongs imposed by federal policies that decimated the 
homelands of many Indian tribes.
    Several bills were introduced in the 109th Congress to amend IGRA 
to address concerns with off-reservation gaming. These proposals would 
have set a dangerous precedent by subjecting all tribal governments to 
the political whims of state and local governments.
    NIGA facilitated dozens of meetings with our Member Tribes and with 
the NIGA-NCAI Indian Gaming Task Force to debate the issue internally. 
The elected tribal leadership was actively engaged in this important 
discussion. The result of these negotiations was NIGA Resolutions 
adopted in 2006 and 2007 that opposed the proposals to amend IGRA and 
undermine tribal sovereignty. One of these Resolutions calls upon all 
tribal governments to respect the homelands and aboriginal territory of 
our brother and sister tribes. In addition, it acknowledges and urges 
the United States to uphold its legal and moral fiduciary trust 
obligations to ALL federally recognized Indian tribes, including tribes 
that could be impacted by off reservation gaming. NCAI adopted similar 
resolutions.
    In recent Congress', including the current 113th Congress, the 
issue of land into trust for gaming purposes is again being discussed. 
NIGA's Board met in October of 2013 and reaffirmed our past resolutions 
1-PHX-GM-3-28-07, \6\ which reaffirmed our consensus 2006 Albuquerque 
Resolution 2-ABQ-4-4-06 on this important issue. The Title of the 2006 
Resolution was ``Supporting The Secretary Of Interior's Promulgation Of 
Regulations Concerning Gaming On After-Acquired Lands and opposing the 
provisions of S. 2078 and H.R. 4893 that would amend Section 20 of the 
Indian Gaming Regulatory Act (IGRA). While Interior has since 
promulgated regulations to implement IGRA's Section 20 enforcement of 
the regulation has been at times unclear and other times inconsistent.
---------------------------------------------------------------------------
    \6\ The resolved clause in the Phoenix Resolution states ``NOW 
THEREFORE BE IT RESOLVED, that NIGA reaffirms the position taken in 
Resolution 2 ABQ 4-4-06, and will continue to work with the Department 
of the Interior on its efforts to promulgate regulations to implement 
Section 20 of IGRA and to ensure that full consultation with Indian 
Tribes nationwide is accomplished prior to promulgation of a final 
rule.''
    The resolved clauses of the Albuquerque resolution state ``NOW 
THEREFORE BE IT RESOLVED, NIGA strongly opposes amending Section 20 of 
the Indian Gaming Regulatory Act, as proposed in S. 2078 and H.R. 4893; 
BE IT FURTHER RESOLVED, NIGA opposes legislation that would diminish 
the sovereign rights of Tribal Governments and opposes any effort to 
subordinate Tribal Governments to local governments;
    BE IT FURTHER RESOLVED, NIGA does hereby call upon Tribal 
Governments proposing off-reservation gaming locations to promote 
positive relationships with State and local governments and minimize 
impacts on the aboriginal rights of nearby Tribes;
    BE IT FURTHER RESOLVED, NIGA does hereby call upon Tribal 
Governments proposing off-reservation gaming locations under the 
Section 20 two-part Determination Process to demonstrate both: 1) 
aboriginal or historical connection; and 2) cultural ties, based upon 
actual inhabitance, to the proposed site, and to promote positive 
relationships with State and local governments and minimize impacts on 
the aboriginal rights of nearby Tribes; BE IT FURTHER RESOLVED, that 
NIGA calls upon state and Tribal Governments to work together to ensure 
that local government concerns are addressed through the existing 
Tribal-State Compact process and the Section 20 two-part determination 
process;
    BE IT FURTHER RESOLVED, that NIGA does hereby call upon Congress to 
adhere to the significant process set forth in IGRA's Section 20 with 
due deliberation process of Congress and to refrain from appropriations 
riders that bypass Section 20 or otherwise amend IGRA; BE IT FINALLY 
RESOLVED, that NIGA supports the promulgation of regulations by the 
Department of Interior, working directly with Tribal Governments in 
accordance with Executive Order 13175, governing the implementation of 
the Section 20 two-part determination process, respecting the interests 
and rights of Tribal Governments, including nearby Indian Tribes, and 
state and local governments.
---------------------------------------------------------------------------
    The NIGA Tribal Membership's position on land into trust for gaming 
purposes acknowledges that federal legislation must uphold the existing 
policy of strengthening Indian self-determination and tribal 
governments. At the same time, our position acknowledges and urges 
respect for the diversity of our Member Tribes and the unique issues 
and needs that each sovereign tribe faces at home.
Rebuilding Our Tribal Land Bases
    A separate issue that has wrongly been linked to so-called ``off-
reservation gaming'' is the important issue of restoring tribal 
homelands. For five years, NIGA and all of Indian Country has been 
dedicated to enacting legislative to reserve the Supreme Court's attack 
in the 2009 Carcieri v. Salazar decision. The decision strikes at the 
core of tribal sovereignty: the ability of Tribes to restore our 
homelands. The results of the Carcieri decision across Indian Country 
are widespread, killing jobs and deterring investment and economic 
development on Indian lands.
    The decision has led to dozens of related federal court challenges, 
including Patchak and more recently the Big Lagoon Rancheria v. 
California decision.
    Three years after issuing the Carcieri decision, the U.S. Supreme 
Court in June of 2012 compounded its attack on tribal governments 
issuing the decision in Match-E-Be-Nash-She-Wish Band of Potawatomi v. 
Patchak. The Patchak Court held that any individual has standing under 
the Administrative Procedures Act (APA) to bring a federal lawsuit to 
challenge the Interior Department's tribal land to trust 
determinations. The Court reasoned that Patchak's claim falls within 
the ``zone-of-interests'' that the IRA regulates. The zone-of-interests 
standard is subject to a low threshold, and merely requires a 
recognizable relation to the acquisition or use of Indian lands. As a 
result, the Patchak case opens up to legal challenges ALL tribal land 
to trust decisions made within the past six years, which is the statute 
of limitations under the APA.
    On January 21, 2014, the Ninth Circuit, in Big Lagoon, further 
raised the urgency for a legislative fix to the land into trust issue. 
The court, in this highly questionable decision, refused to respect the 
status of Indian lands placed into trust 20 years ago. It conducted an 
ad hoc determination of whether the Tribe was under federal 
jurisdiction--establishing a new and higher bar.
    While Carcieri initially divided Indian Country into two classes of 
Tribes, the Patchak and Big Lagoon decisions hold potential to threaten 
the existing trust lands of ALL tribal governments.
    For five years, Indian Country has worked with Congress to enact a 
legislative fix that would take this issue out of the hands of the 
federal courts and restore certainty to the sovereign status of Indian 
lands. However, we've encountered obstacles from folks who view 
Carcieri as an Indian gaming issue. These distortions ignore the fact 
that the Carcieri case involved a housing development for tribal 
elders, not a gaming project. Indian gaming remains subject to IGRA, 
and off-reservation gaming is subject to that act and the regulations 
put in place by Interior. None of this involves the land-into-trust 
process under the Indian Reorganization Act. Instead, Carcieri is about 
jobs, cultural preservation and securing a land base to improve Indian 
housing, education, health care and other basic tribal government 
services for our citizens.
Conclusion
    As the Cabazon Court acknowledged, Indian gaming is Indian self-
determination. Native Nations, as separate governments acknowledged in 
the Constitution, began using contemporary Indian gaming to generate 
revenue to provide for the basic needs of tribal communities. Congress 
enacted IGRA in part to foster and strengthen these actions. While IGRA 
has its shortfalls, overall the Act's first twenty-five years have 
delivered on its stated goals of strengthening tribal governments and 
empowering Indian communities. For our part, tribal governments 
nationwide have committed significant resources to protecting these 
gains by maintaining a strong, seamless, and comprehensive system of 
regulation. Much of the credit for this success goes to the tribal 
leaders who make the decision to spend more than $422 million each year 
to regulate their operations, and to the thousands of men and women who 
are day-to-day front line regulators of Indian gaming operations.
    Indian gaming is one tool that is helping tribal governments 
overcome social and economic ills resulting from decades of injustice. 
However, Indian gaming can't do it alone and Indian Country can't do it 
alone.
    Over the next twenty-five years, Indian gaming will face changes 
and constant challenges. To anticipate those changes and meet those 
challenges, Indian Country will rely on a strong partnership with this 
Committee, Congress and the Administration to ensure that the goals of 
IGRA continue to meet its stated intent of strengthening tribal 
governments and a means of achieving tribal economic self-sufficiency. 
Working together, we will make a brighter future for Indian country. 
Our children should expect nothing less than our best efforts to 
provide safe, healthy tribal homelands.
    Additional testimony
    The National Indian Gaming Association offers this supplemental 
statement for the record of the Senate Indian Affairs Committee 
Oversight Hearing on July 23rd, 2014, ``Indian Gaming: The Next 25 
Years.''
    As an initial matter and on behalf of the 184 member Tribes of the 
National Indian Gaming Association, I express my full support of the 
testimony provided by the The Honorable A.T. Stafne, Chairman, 
Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation. As an 
organization, our mission is to defend Tribal Sovereignty and promote 
Tribal economic self-sufficiency. We join Chairman Stafne in his call 
for Congress and Federal Agencies to ensure that Indian Gaming serves 
and fulfills the purposes of IGRA for all of Indian Country. Indian 
Gaming is a proven, meaningful source of revenue that strengthens 
tribal economies and aids in our Tribal Nations' pursuit of self-
sufficiency and strong, effective tribal government. Chairman Stafne is 
correct that the Supreme Court's Seminole decision and the Ninth 
Circuit's Rumsey decision have upended these promises for many tribes, 
particularly in states that refuse to negotiate gaming compacts. Since 
I have been Chairman, one of NIGA's priorities has been to ensure that 
all tribes, if they choose, can use Indian gaming as a tool to 
strengthen their communities.
    We believe that Congress intended for Tribes to have the ability to 
enforce the obligation of state governments to negotiate gaming 
compacts in good faith. With this option gone due to the Seminole 
decision, the Interior Department must exercise its authority under 
IGRA and invoke Secretarial procedures where necessary to ensure that 
all Tribes can pursue their economic destiny. Further, we agree with 
Chairman Stafne that Congress did not intend for IGRA to limit a 
tribes' choice of games to offer on its reservation. The Rumsey 
decision continues to prevent many tribes from obtaining economic 
independence through gaming as a result of this limitation. Congress 
and the Department of Interior, as well as the Department of Justice, 
must make it clear in their policy statements and regulations that IGRA 
is not a limiting statute, but rather, a forward looking law that 
balances the public policy interests of states in regulating gaming 
within their borders, with the sovereign authority of Tribes within 
their reservation boundaries. These limitations infringe on the 
sovereign authority of tribes such as those in Montana and prevent them 
from reaching their full economic potential.
The Strength and Resiliency of Indian Gaming
    In his testimony before the Senate Committee on Indian Affairs, 
Secretary Kevin Washburn remarked that Indian Gaming revenues have 
``plateaued'' and ``flat-lined,'' especially as compared to the growing 
commercial gaming industry. The National Indian Gaming Association 
would like to set the record straight in that regard. All the current 
economic indicators demonstrate that Indian Gaming is strong, tribal 
governments have maintained their market share during the ``Great 
Recession,'' and Indian Gaming will continue to grow as the Nation's 
economy improves. In 2008, the United States suffered its worst 
recession since 1929. The National Bureau of Economic Research (NBER) 
dates the beginning of the recession as December 2007. According to the 
Department of Labor, roughly 8.7 million jobs were shed from February 
2008 to February 2010, and GDP contracted by 5.1 percent. Unemployment 
rose from 4.7 percent in November 2007 to peak at 10 percent in October 
of 2009.
    In 2007 Commercial Gaming Revenue was at an all-time high of $37.52 
billion. Indian Gaming revenue at that time was $26.1 Billion. Over the 
next two years during the worst of the recession, Commercial gaming 
dropped to $34.28 while Indian Gaming rose to $26.5 billion. Commercial 
gaming has not yet regained its pre-recession revenue high of $37.52 
billion and it currently holds slightly below at $37.34 billion--
despite the fact that an additional five states, Maryland, West 
Virginia, Ohio, Maine and Kansas, have legalized or expanded to 
commercial gaming since 2007.


    Meanwhile, Indian gaming has shown remarkably consistent growth 
from 2009's Gross Gaming Revenue of $26.5 billion to July 2014's just 
released revenue numbers of $28.0 billion. Thus, it is inexact for 
Secretary Washburn to compare commercial gaming's recent increase with 
Indian Gaming's revenue results these past five years. Further, it is 
wrong to conclude that Indian Gaming revenues have ``plateaued.''
    It is undisputed that Indian gaming was a decisive factor in 
helping many regions survive the Recession. Indian gaming continued to 
create jobs and keep people employed in one of the toughest times in 
American history. In hundreds of local jurisdictions throughout the 
United States, Indian gaming revenues and charitable donations from 
tribal governments saved thousands of jobs for American health care 
workers, fire fighters, police officers, and many other local officials 
that provide essential services to children, elders, and others.
    Indian gaming's strength is the diversity of offerings at our 
operations: world class gaming, A-list entertainment, five star 
restaurants, and a destination/cultural experience that is unmatched 
worldwide. Despite decades of federal policies that sought to force the 
assimilation and decimation of American Indian cultures, our people, 
our language, our food and our ways of life have persevered. As Senator 
Heitkamp noted, many tribal governments use our gaming operations as 
both a gathering place for the community and a place to teach visitors 
about our history and culture. Further, many states highlight our 
Tribal gaming operations during their summer tourism promotions.
    In addition, Indian gaming is Indian Self-Determination. Indian 
gaming revenues are 100 percent devoted to helping rebuild tribal 
communities. Our revenue goes to fund health care, education, housing, 
transportation, elder care, language revitalization, job training, and 
much more.
    We acknowledge that our industry will face challenges in the coming 
years. We have consistently faced and defeated similar challenges 
nearly every year of the first 25 years under IGRA. However, our 
industry remains strong, and our strength is helping fuel this Nation's 
economic recovery. From the first act of self-determination and 
sovereignty that opened the first Indian bingo hall, all we have ever 
asked is to be treated fairly.
    While I acknowledge that one purpose of the Assistant Secretary's 
testimony is to urge tribal government economic diversification, I 
submit that Indian Country has worked--within available means--to 
diversify our economies, support tribal entrepreneurship, and encourage 
Native citizens to stay and work on our Indian homelands. However, the 
facts and data do not add up to support his conclusion that Indian 
gaming is done growing.
    Moving forward through the next 25 years under IGRA, we will need a 
strong partnership with the Committee, Congress, and the Administration 
to ensure a level playing field that will help create opportunities for 
Native communities throughout Indian Country. I urge the Assistant 
Secretary to work with Congress and tribal leaders nationwide to remove 
the many federal barriers to economic development and diversification 
on Indian lands, and equally important--to ensure that all Indian 
tribes are afforded the sovereign choice to conduct gaming on their 
lands as Congress originally intended under IGRA.

    Chairman Tester and Members of the Committee I again thank you for 
this opportunity to testify today. I am prepared to answer any 
questions you have.

    The Chairman. Thank you for your testimony, Ernie. Your 
grandmother would probably be a pretty strong supporter of my 
language immersion bill.
    Mr. Stevens. Yes, sir.
    The Chairman. I am going to start with you, Chairman 
Stafne. Some tribes that haven't had success negotiating 
compacts with States have moved forward with Class 2 gaming. 
Has Fort Peck examined whether a Class 2 gaming facility would 
be feasible for your reservation?
    Mr. Stafne. Chairman Tester, yes, we have. We have done a 
study. With the population we have, we do not track that many 
people around there. I might add, Montana is surrounded by four 
States, and every one of those States has Class 3 gaming: North 
Dakota, South Dakota, Wyoming and Idaho. And to the north, 
Canada also has gambling. So people are not coming to Montana 
to gamble. There just are not enough people in Montana to visit 
us. If they are going to visit to go gambling, they are going 
to where they can win big bucks.
    The Chairman. My dad used to describe Highway 2 as a direct 
route between Seattle and Chicago, and Highway 2 goes right 
through your neck of the woods. Unfortunately, from a people 
standpoint, or maybe not unfortunately, the interstate was 
routed through the southern part of the State. Have you been 
able to do, and I don't know that you have, I am just curious, 
have you been able to do any studies to see if there is the 
traffic going through Highway 2 or is it your belief that a 
Class 3 facility would actually attract people to come there 
that normally would not?
    Mr. Stafne. That is the tribal executive board, the 
governing body believes, they have sponsored studies, not one, 
but more than one study, and they have all come up with the 
same results. Other tribes have come, and offered to build 
casinos. And they have done studies. And not one has built a 
casino yet.
    The Chairman. Okay. Chief Hicks, gaming operations have 
made a huge impact on your community. You spent most of your 
testimony talking about that. Can you talk about the unmet 
needs that still exist, where you are heading, to address some 
of the issues and potentially using gaming and tourism money 
for those?
    Mr. Hicks. I would say, of course, living in the mountains 
of western North Carolina, our demographics are quite tough. 
One of the things that we have worked hard on from an 
environmental perspective, also to make sure that we have 
allowed for the growth is, we are in the process of upgrading 
our wastewater treatment facility. Of course, that makes a 
difference in a lot of ways. Historically we have been single 
home septic tanks. So now we are trying to tie in all these 
fingers around our communities into this wastewater system. We 
just recently upgraded our water treatment facility.
    So as we look at the opportunities in Cherokee, both 
service and economic, we know this has to be a priority.
    I think the other thing is just to make sure that we 
continue to find the necessary technology to make sure that we 
stay ahead of the game related to diabetes and other health 
traumas that we have in Cherokee. We put a lot of effort into 
making sure that we have diabetes clinics, wound care clinics 
in place to address the needs of our people.
    The Chairman. Thank you. I would just say thank you for the 
work you have done. I think a lot of this really brings up 
another issue, and that is the general exclusion issue from the 
IRS we need to deal with. Thank you.
    Ernie, Secretary Washburn talked about how tribal gaming 
revenues have plateaued. I understand for the first time 
commercial gaming growth has exceeded tribal gaming. I don't 
know if that is true or not. But we have heard about casinos in 
Atlantic City closing. Do you think we have reached the point 
of market saturation, that we could see actually a decline over 
the next 25 years? What is your perspective? What does your 
crystal ball say?
    Mr. Stevens. I don't think I agree with the Assistant 
Secretary. I do that carefully, because he is a good friend. 
But I think we have to be prepared to deal with those kinds of 
challenges, so to that extent I think advocacy related to that 
may be accurate. But in our world, in Indian Country, with the 
great recession that has come about, it is like, welcome to our 
world. Indian Country has always had to deal with these kinds 
of challenges and we continue to do so.
    The Chairman. So in your testimony you talked about gaming 
being a job creator, creating 650,000 direct and indirect jobs. 
We just heard Chief Hicks talk about building water systems and 
sewer systems. Are those kinds of jobs in the 650,000? Give me 
an idea what you are talking about.
    Mr. Stevens. Yes, we definitely expand those numbers into 
indirect employment.
    The Chairman. Do you have any idea how many of those jobs 
are filled by tribal folks and how many by non?
    Mr. Stevens. We batted that around a little bit today and 
we really don't have the accurate number. I think we are close 
to half. It is about 50-50. But I don't have that accurate 
number with me today.
    The Chairman. Senator Barrasso.
    Senator Barrasso. Thank you, Mr. Chairman.
    Chief Hicks, I want to start with you. We talked about the 
ACE Initiative, Assistance, Compliance, Enforcement, technical 
assistance to tribes, tribal gaming regulators. We heard that 
there are 341 training events that occurred over the last two 
years, almost 5,000 participants attending and trained. Can you 
explain how this initiative has reduced criminal activity and 
improved the integrity of Indian gaming?
    Mr. Hicks. I will tell you that we have had a gaming 
commission in place since our inception. One of the things we 
have done is try and stay ahead of the curve. We have over 60 
sworn officers in Cherokee. Of course, that is an additional 
expense that we felt we had to incur. So as you look at the 
entire structure of the regulatory bodies, we felt that of 
course the more training we could get the better off we would 
be.
    When you have cash systems, people are going to test the 
systems. I guess as a regulatory body, the best thing we can do 
is make sure we have controls in place to catch as soon as 
possible if these type of things happen. But again, we try and 
stay ahead of the curve.
    Senator Barrasso. It sounds like you are fully engaged. Do 
you think this is a program that is useful across the board?
    Mr. Hicks. I think without question. More training, whether 
it is officers, whether it is the regulatory body itself, and 
the commission, any time we can provide additional training it 
is going to benefit the operation of the tribe.
    Senator Barrasso. Chairman Stafne, any additional thoughts 
on that?
    Mr. Stafne. Well, we certainly would like to have that 
problem, where we had, or I wouldn't consider it a problem, a 
benefit really.
    Senator Barrasso. You see value in the process?
    Mr. Stafne. Yes, absolutely.
    Senator Barrasso. Good. Chairman Stevens, any additional 
thoughts on the whole ACE Initiative?
    Mr. Stevens. Regulation?
    Senator Barrasso. The Initiative itself, the ACE 
Initiative, in terms of it is actually helping to reduce 
criminal activity. Obviously in North Carolina they are staying 
ahead of the curve. What are you seeing kind of across the 
Country?
    Mr. Stevens. Yes, absolutely. We even would go further to 
discuss the tribal gaming regulators training, that NIGA does 
on a regular basis throughout the Country. In addition to that, 
we have auditor training in different types of elements to help 
prepare our tribes for this.
    We also have a national organization. I believe the last 
time I testified I brought the chairman of that, Mr. Rocky 
Papsadora, with me. National Tribal Gaming Protection Network, 
they kind of come together national and regional folk working 
together. We really feel like we continue to monitor.
    Now, we are not perfect. You read on occasion that we have 
different types of operations that exist in gaming. But that is 
what these national networks are about, to be able to identify. 
Most of those people have been put in prison as far as I know. 
Certainly if you bend the rules or anything happens in Indian 
gaming, you either lose your license or lose your job or both.
    Senator Barrasso. I agree with Chief Hicks, people will try 
to test systems, will try to find ways around them. Anything we 
can do through additional training, additional information and 
working with more participants and more training sessions I 
think is probably going to be very helpful. Thank you.
    Mr. Stevens. Yes, sir, Mr. Vice Chairman, and that is kind 
of our national network, Tribal Gaming Protection Network, that 
is what we are talking about, constantly keeping each other 
abreast on a national and regional level, so that we are to be 
on top of this. And again, it is the regulators and folk 
talking and networking.
    Senator Barrasso. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you, Vice Chair Barrasso. I want to 
thank this panel for their testimony. I think that both the 
panels before and the one coming up too, it is an opportunity 
to look at the Indian Gaming Act over the last 25 years and see 
where we have been and try to predict where we are going. I 
want to say to the leaders, thank you for your proactive 
leadership and your hard work on your respective reservations. 
To Ernie, thank you very much for your leadership on the 
regulatory end. So we thank you very, very much.
    With that, we are going to get our final panel up today. I 
thank everybody for hanging in there. This has been a long 
hearing, but it is an important issue. We are going to deal 
with an issue now that is reasonably State-specific, although 
it could have impacts on other States.
    Our final panel today, I want to welcome President Diane 
Enos of the Salt River Reservation; Mayor Jerry Weiers of the 
city of Glendale, and Chairman Ned Norris of the Tohono O'odham 
Nation. I want to thank all of you for being here, and just say 
that we touched on this when the two Congressmen were here. 
This is a simple issue in some ways but it is a much more 
complicated issue in others. So we just want to say thank you. 
We look forward to your testimony.
    As with the previous panels, and I would ask you this, to 
try to hang with us. I have been pretty flexible with the time 
and I will probably stay flexible with you. But the closer you 
can keep it to five minutes, the better off we are going to be. 
Your full written testimony is going to be a part of the 
record. And there will be questions after this panel and there 
will be also written questions that we will be able to present 
for the record, as the record will be open for another couple 
of weeks after we adjourn today.
    So once again, Diane, thank you for being here. Mayor 
Weiers, thank you for being here. Ned, thank you for being 
here. And we will start with President Enos with her testimony. 
You may begin.

   STATEMENT OF HON. DIANE ENOS, PRESIDENT, SALT RIVER PIMA-
                   MARICOPA INDIAN COMMUNITY

    Ms. Enos. Mr. Chairman and members of the Committee, thank 
you for the opportunity to testify.
    For 20 years, Arizona Indian gaming has been stable and 
successful. But today we face a crisis: off-reservation gaming. 
The Tohono O'odham Nation wants a casino 150 miles from its 
government center on 54 acres that is within my tribe's 
original 1879 reservation. I am sorry to have to say this, this 
is a problem that only Congress can fix. We cannot fix it 
without your help. Congressional action on H.R. 1410 is the 
only remaining recourse for the tribes and voters of Arizona.
    So I am here today to ask that you swiftly enact this 
legislation. The bill is a measured and appropriate solution to 
a horrendous predicament. Beginning in 1999, 17 Arizona tribes 
came together to begin renegotiating our expiring gaming 
compacts. I was on council at the time. We had a real 
challenge. The State insisted on a single compact for all 
tribes that reduced the allowable number of casinos and 
restricted casinos from being opened in urban areas.
    It was tough negotiating. Tribal leaders met more than 85 
times. We met with the State more than 35 times. Our 
relationships solidified as meetings lasted late into the 
night, some lasting several days.
    Once we agreed on the compact, Arizona voters had to 
approve it. Tribes, including TO, contributed more than $23 
million to the campaign. We worked tirelessly with the 
governor's office, speaking on television and radio, giving 
interviews, buying ads, distributing voter pamphlets.
    The major thrust of the campaign was to promise voters 
there would be limited gaming or ``no additional casinos in the 
Phoenix metro area.'' We repeated this promise over and over 
for two reasons. Number one, we believed in it. The governor 
had demanded the four Phoenix metro tribes, Salt River, Ak 
Chin, Gila River and Fort McDowell each give up their right to 
operate an additional casino under the compacts then in effect.
    So we gave up those rights to ensure that all tribes in 
Arizona could continue to benefit from the gaming exclusivity. 
That was the goal of our fight.
    The second reason was because through polling, tribes knew 
this promise would help convince voters to approve the compact, 
which they barely did on election day, 50.9 percent. The day 
after the vote, Tohono's chairman was quoted in the Tucson 
paper as saying, ``To us this is a major victory. We stayed 
together, we stay united.'' We now know that this was not true. 
Our partners in this effort, the same people we fought 
alongside day in and day out, had been working behind our backs 
and behind the backs of Arizona voters the entire time.
    Documents recently disclosed by Tohono reveal that they 
were acting secretly to buy casino land in metro Phoenix as 
early as March 2001. A full year and a half before voters 
approved the compacts. And at the very same time, the tribes 
and the State were promising voters that there would be no 
additional casinos in the Phoenix metro area.
    They made a calculated choice to keep their plans secret 
for years from other tribes and to violate our promise to 
voters. They looked us in the face and lied. They broke faith 
with us and the voters of Arizona. Now even our existing 
establishments are in jeopardy as corporate gaming interests 
point to this deception to justify opening up Arizona to 
commercial gaming, like Montana.
    This deception will also impact the State-tribal compact 
renewal in 2027. That is why, Mr. Chairman, many Arizona 
tribes, cities, the State and city of Glendale, are fighting so 
hard to oppose the Glendale casino. We want to ensure that our 
word is good and that tribes in Arizona and across the Country 
can continue to benefit from the economic engine of IGRA.
    There remains poverty and great need for services in all 
Arizona tribes. The loss of gaming revenue would be 
devastating.
    With me today are over 25 elected officials from tribes and 
Phoenix metro cities. We reluctantly come to Congress to fix a 
problem caused by Tohono's decision to violate our promise to 
voters. Our attempts to persuade the tribe have failed and the 
courts are powerless to remedy Tohono's fraud and 
misrepresentation, because they chose to raise sovereign 
immunity. The Keep the Promise Act simply conforms tribal 
behavior to tribal promises. It doesn't change Indian gaming. 
It doesn't create precedent. And it doesn't amend the Gila Bend 
Act. It protects Arizona Indian gaming.
    If you believe that government integrity matters, move the 
bill out of this Committee. Thank you. I am happy to take 
questions.
    [The prepared statement of Ms. Enos follows:]

   Prepared Statement of Hon. Diane Enos, President, Salt River Pima-
                       Maricopa Indian Community
Executive Summary
    The Salt River Pima-Maricopa Indian Community (``Community'') 
thanks the Committee for scheduling this hearing on the future of 
Indian gaming. For over twenty years Arizona Indian gaming has been 
stable, predictable, and successful. However, sadly, the future of 
Indian gaming in Arizona does not look good. It is threatened by the 
actions of one tribe. H.R. 1410, the ``Keep the Promise Act,'' which is 
pending before the Committee, will help protect Indian gaming in 
Arizona. We respectfully urge the Committee to pass it.
    Briefly, except for horse racing and the State's lottery, Tribes in 
Arizona have been the exclusive operators of class III gaming since the 
first compacts were signed in 1993. But our tribal gaming exclusivity 
has always been at risk. During the past twenty years, non-Indian 
companies in Arizona, and many from out-of-state, have consistently 
tried to open up the State to commercial gaming. Our Tribes, often in 
collaboration with others, have fought against these attempts, at 
enormous financial cost and expenditure of other resources. But now 
more than ever before, our tribal gaming exclusivity is jeopardized 
from within, because one Tribe has requested that the Department of the 
Interior take land into trust for the purpose of opening a casino off-
reservation in the Phoenix-metro area.
    The Tohono O'odham Nation (``Tohono O'odham'' or ``Tohono''), who 
enjoys a 2.8 million acre reservation bordering Mexico and Tucson, has 
sought to use a 1986 federal law to mandate that the Department of the 
Interior add 54 acres in the Phoenix-metro area to its reservation so 
that it can operate a casino more than 150 miles from its government 
headquarters. This 54 acre parcel is outside Tohono's aboriginal 
territory, and it is within my Tribe's original 1879 reservation 
boundaries. Today, the parcel has a 2,000-student public high school 
across the street, and over 30,000 people live within two miles.
    The Keep the Promise Act is a bipartisan bill that was introduced 
in the House of Representatives on April 9, 2013. The bill was 
sponsored by Representative Trent Franks (R-AZ) and is also cosponsored 
by Representatives Ann Kirkpatrick (D-AZ), David Schweikert (R-AZ), 
Paul Gosar (R-AZ), Matt Salmon (R-AZ), Dan Kildee (D-MI), Ed Pastor (D-
AZ), Jared Huffman (D-CA), and John Conyers, Jr. (D-MI). H.R. 1410 
would ensure that the promise made by Arizona tribes--that there would 
be no additional casinos in the Phoenix metropolitan area for the 
duration of the existing gaming compacts--is kept. The bill prohibits 
all Class II and Class III gaming within that specifically defined area 
on lands taken into trust after April 9, 2013. The gaming prohibition 
would sunset on January 1, 2027, when existing compacts will begin to 
expire and when all Arizona tribes will need to negotiate new compacts 
with the State. It would be proper at that point for Tohono O'odham or 
any other Arizona tribe to negotiate for the right to build additional 
casinos in the Phoenix metropolitan area. On September 17, 2013, H.R. 
1410 was passed by the House of Representatives by a voice vote. The 
bill has been pending in the Senate Committee on Indian Affairs since 
that time without any action.
    We understand the hesitation among some Senators to advance H.R. 
1410 because of the perception that it pertains to a local intertribal 
dispute in Arizona, but this is not true. In addition to the twelve 
tribes that have spoken against Tohono O'odham's proposal, the majority 
of Phoenix area municipalities, the Chairman of the Maricopa County 
Board of Supervisors, and the State of Arizona, itself, are also 
opposed to the project. Although the reaction of some Senators to the 
bill has been to sit back and allow H.R. 1410 to languish in Committee, 
inaction will hurt numerous tribes in Arizona while only benefitting 
one, the Tohono O'odham. Failure to act is picking a side and it is 
picking the side that knowingly took actions to conceal the truth and 
hurt other tribes.
    The Department of the Interior concluded on July 3, 2014 that the 
1986 Gila Bend Reservation Lands Replacement Act required it to take 
the parcel into trust for Tohono. And the courts have held that 
sovereign immunity bars recourse even though evidence supports claims 
that Tohono induced the State of Arizona and Arizona tribes to enter 
into a compact based on false promises. This leaves Congress as the 
only venue for justice. The bottom line is that Congress' failure to 
act will result in substantial injustice to Arizona tribes and local 
communities who will suddenly have to worry about whether Tohono will 
be opening a casino in their neighborhood. Arizona is a microcosm for 
the broader efforts of some Tribes to twist laws to pursue off-
reservation casinos without regard to other tribes, local communities, 
and existing tribal-state compacts and agreements. The limits in the 
Indian Gaming Regulatory Act are rapidly becoming irrelevant. Examples 
are becoming more common around Indian Country and Tohono's actions 
will become a blueprint for other Tribes to follow if they succeed with 
their scheme. Inaction on H.R. 1410 will signal that Congress is 
unwilling to address a metastasizing problem that has arisen due to 
manipulation of Federal laws, including the Indian Gaming Regulatory 
Act. A failure to act on H.R. 1410 would amount to a Congressional 
rubber stamping of actions that were designed to circumvent the law 
regardless of the collateral damage to other Tribes and promises made.
    This plan by the Tohono O'odham of building an additional casino in 
the Phoenix-metro area directly violates promises that it made, that 
other Arizona tribes made, and that the Governor of Arizona made to 
citizens who approved our compacts in November 2002. The public 
dissemination of the promise began on February 20, 2002, when Arizona 
Governor Hull issued a news release announcing to the public and media 
that the model compact she and 17 Tribes had negotiated for two and a 
half years--if it were approved--would ensure that there would be ``no 
additional casinos allowed in the Phoenix metropolitan area.'' This 
promise was then repeated by elected Tribal leaders, including 
Tohono's, other Tribal representatives, and representatives of the 
State, both verbally and in writing, in the Arizona legislature, in 
television, radio and print media, and in public over the ensuing nine 
month initiative campaign that ended when Arizona citizens narrowly 
approved the model compact.
    It is all the more alarming that Tohono O'odham has claimed a right 
under a 1986 federal law to operate up to four additional casinos on 
county islands in the Phoenix-metro area. This 1986 law, known as the 
Gila Bend Act, provided financial compensation to the Tohono O'odham 
for lands that were flooded by an Army Corps of Engineers project and 
allowed Tohono to buy replacement lands. The Gila Bend Act was passed 
before Congress enacted the Indian Gaming Regulatory Act but Tohono 
O'odham argues that the 1986 law mandates the Department of the 
Interior to take lands into trust for gaming without any questions 
asked. Also troubling is the fact, unknown until recently, that Tohono 
was secretly taking actions to open a casino in the Phoenix-metro area 
at the same time it and 16 other Arizona Tribes were conducting compact 
negotiations and while they were promising citizens there would be ``no 
additional casinos in the Phoenix metropolitan area'' under the 
compacts. Tribes made these promises specifically to convince voters to 
approve the model compact, which voters barely did by a very slim 50.9 
percent to 49.1 percent margin.
    If Congress now permits an additional tribal casino in the Phoenix-
metro area in violation of the promises Tribes made to Arizona voters, 
in the public's eye Tribes will lose their integrity and the moral high 
ground. And we believe it will be virtually impossible to protect our 
tribal gaming exclusivity and stop non-Indian companies from obtaining 
authority to conduct commercial gaming. This would harm all Tribes and 
put many Tribal casinos out of business.
    These efforts of Tohono O'odham also will destroy our unique 
compact structure that allows non-gaming Tribes to receive gaming 
revenue from more urban gaming tribes. The compact we negotiated sets 
limits on the amount of gaming machines each Tribe can operate. While 
the compact sets limits on the number of gaming machines, a Tribe may 
increase the number of machines by negotiating an agreement with a non-
gaming Tribe. Under such agreements, the gaming Tribe may operate more 
gaming machines in exchange for making substantial periodic payments to 
the non-gaming Tribe, which often has no market to operate even a small 
casino.
    It is important to understand that under one provision of our 
compact, commonly called the ``poison pill'' provision, if the Arizona 
legislature uses the broken promises to justify permitting non-Indians 
to operate gaming, all limits on the number of gaming machines come 
off. At that point, there will absolutely be no reason for a gaming 
Tribe to buy additional machine rights from a non-gaming Tribe. 
Arizona's non-gaming Tribes will lose their substantial revenue 
streams. Yet, Tohono would benefit from this collapse because, as it 
claims, it can hand-pick the locations of its four metropolitan casinos 
and it would have no limit on the number of gaming machines it can 
operate in those four casinos.
    Twelve Arizona Tribes have gone on record as formally opposing 
Tohono's plans for an additional casino in the Phoenix-metro area. Nine 
of these Tribes support H.R. 1410.
    The State of Arizona filed litigation against Tohono O'odham, 
alleging that the Tribe acted fraudulently during the 1999-2002 compact 
negotiations, misrepresented facts, and made promises to the State 
regarding the location of its fourth casino which the State relied on 
to its detriment. In response to these claims, Tohono asserted that it 
did not have to defend the claims in court because it was insulated by 
the doctrine of tribal sovereign immunity. The court agreed and 
dismissed all three claims, but not because they lacked merit. In fact, 
the court stated that the evidence actually appeared to support the 
State's promissory estoppel claim.
    Undeterred, Tohono O'odham has requested that the Secretary of the 
Interior take the 54-acre parcel in the Phoenix-metro area into trust. 
Twenty days ago, on July 3, 2014, the Department of the Interior 
determined that the 1986 federal law mandated it to acquire the parcel 
into trust and create a new Indian reservation in the Phoenix-metro 
area and within my Tribe's former reservation boundaries. We are 
unaware of any situation where the Department of the Interior has 
approved the creation of a reservation within another Tribe's former 
reservation boundaries. This is a disturbing policy, which establishes 
a precedent that will open the door for other Tribes to pursue similar 
strategies, and undermine the sovereignty of those Tribes whose 
ancestral lands are once again taken from us.
    Tohono claims that in passing the 1986 federal law, the United 
States `agreed' that Tohono can operate casinos on land it acquires 
under that law. Tohono claims H.R. 1410 would violate that agreement. 
Not so. Tohono's actions to conceal its true intentions and activities 
regarding gaming in the Phoenix-metro area, and its involvement in 
making, paying for the promotion and publication of, and not objecting 
to the promises made by all Tribal leaders to voters that there would 
be ``no additional casinos in the Phoenix-metro area,'' must be held to 
have unilaterally modified any such agreement.
    To protect our tribal gaming exclusivity and the unique compact 
structure that allows non-gaming Tribes to receive substantial gaming 
revenue, and to protect Phoenix-metro cities from having additional and 
unwanted casino-reservations sprouting up on county islands within 
their boundaries, the Senate must pass H.R. 1410, the ``Keep the 
Promise Act of 2013.''
I. H.R. 1410
    H.R. 1410 would bring some common sense to this situation and 
clarify that no tribe may conduct gaming on lands taken into trust 
after April 9th, 2013, as was promised by the Arizona Tribes. H.R. 1410 
would not amend any federal law. The bill would not take any lands away 
from Tohono O'odham, nor will it prevent any lands from going into 
trust. The bill will simply prohibit tribes from breaking the promises 
repeatedly made to voters--that there would be ``no additional casinos 
in the Phoenix metropolitan area'' during the term of the current 
compacts.
    H.R. 1410 keeps the promises that the tribes of Arizona made to the 
State of Arizona and the voters that there would be ``no additional 
casinos in the Phoenix-metro area'' for the duration of the voter-
approved gaming compacts. In our view, H.R. 1410 ratifies the agreement 
that the State and tribes of Arizona reached when they established a 
limited structure of Indian gaming in Arizona. Importantly, this bill 
does not amend federal law, it does not target any specific tribe, nor 
does it prevent Tohono from placing land into trust. H.R. 1410 is 
limited in geographic scope to the Phoenix metropolitan area, it 
applies uniformly to all Arizona tribes, including Salt River, and 
applies only until the expiration of the current negotiated compacts.
    As we near the end of our current compacts in about 2026, all 
interested parties within Arizona can negotiate what gaming structure 
should exist in the State. Clarifying legislation like H.R. 1410 is 
extremely common in Indian Country. Congress routinely includes various 
restrictions on legislation involving Indian land, particularly gaming. 
For instance, it is not unusual for Congress to revisit existing 
statutes to clarify the party's intent, so long as the legislation is 
narrowly tailored. \1\ This is a proper and necessary role for 
Congress.
---------------------------------------------------------------------------
    \1\  See e.g., the Rhode Island Indian Claims Settlement Act, 
ratifying an agreement between the State of Rhode Island and the 
Narragansett Tribe, and settling the Tribe's land claims, was enacted 
in 1978 without a provision regarding gaming. 25 U.S.C.  1701 et seq. 
Congress subsequently amended the Rhode Island Indian Claims Settlement 
in 1996 to explicitly prohibit gaming pursuant to IGRA. See 25 U.S.C.  
1708(b) (``For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 
2701 et seq.), settlement lands shall not be treated as Indian 
lands''). See also, the Colorado River Indian Reservation Boundary 
Correction Act, to clarify or rectify the boundary of the Tribe's 
reservation while also including a provision prohibiting gaming (``Land 
taken into trust under this Act shall neither be considered to have 
been taken into trust for gaming nor be used for gaming (as that term 
is used in the Indian Gaming Regulatory Act (25 U.S.C. 2701 et 
seq.)''), Pub. L. 109-47 (Aug. 2, 2005); Congress passed legislation to 
waive application of the Indian Self-Determination and Education 
Assistance Act to a parcel of land that had been deeded to the Siletz 
Tribe and Grand Ronde Tribe in 2002 but also included a gaming 
prohibition provision (``Class II gaming and class III gaming under the 
Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall not be 
conducted on the parcel described in subsection (a)'') Pub. L. 110-78 
(Aug. 13, 2007); Congress clarified the Mashantucket Pequot Settlement 
Fund, 25 U.S.C.  1757a to provide for extension of leases of the 
Tribe's land but provided that ``No entity may conduct any gaming 
activity (within the meaning of section 4 of the Indian Gaming 
Regulatory Act (25 U.S.C. 2703)) pursuant to a claim of inherent 
authority or any Federal law (including the Indian Gaming Regulatory 
Act (25 U.S.C. 2701 et seq) and any regulations promulgated by the 
Secretary of the Interior or the National Indian Gaming Commission 
pursuant to that Act) on any land that is leased with an option to 
renew the lease in accordance with this section.''), Pub. L. 110-228 
(May 8, 2008); Congress passed the Indian Pueblo Cultural Center 
Clarification Act which amended Public Law 95-232 to repeal the 
restriction on treating certain lands held in trust for the Indian 
Pueblos as Indian Country with the explicit clarification that although 
it was Indian Country it could not be used for gaming (``Gaming, as 
defined and regulated by the Indian Gaming Regulatory Act (25 U.S.C. 
2701 et seq.), shall be prohibited on land held in trust pursuant to 
subsection (b).'') Pub. L. 111-354 (Jan. 4, 2011).
---------------------------------------------------------------------------
    This continues to be a consistent practice of Congress and is one 
that the Department of the Interior has vocally supported in the past. 
This Congress alone, there have been two bills (H.R. 2388 and H.R. 507) 
that passed both chambers and would place lands in trust on behalf of 
Tribes while simultaneously prohibiting the benefitting Tribes from 
using the lands for gaming. H.R. 2388, which will place Federal land in 
trust for the benefit of the Shingle Springs Band of Miwok Indians 
stipulates that ``class II and class III gaming under the Indian Gaming 
Regulatory Act (25 U.S.C.  2701 et seq.) shall not be permitted at any 
time on the land taken into trust.'' The Department of the Interior 
testified in support of the bill despite its prohibition on gaming. 
Both chambers have also passed H.R. 507, the Pascua Yaqui Tribe Trust 
Land Transfer Act, which would place Federal land into trust for the 
benefit of the Pascua Yaqui Tribe. Although the bill has no relevance 
to gaming, it stipulates that, ``The Tribe may not conduct gaming 
activities on the lands held in trust under this Act, as a matter of 
claimed inherent authority, or under the authority of any federal law, 
including the Indian Gaming Regulatory Act (25 U.S.C.  2701 et seq.) 
or under any regulations thereunder promulgated by the Secretary or the 
National Indian Gaming Commission.''
    Beyond these two bills which will likely be signed into law by the 
President in the coming days or weeks, there have been numerous other 
bills introduced in this Congress that also restrict or prohibit the 
ability of Tribes to game on trust land. \2\ Perhaps the most shocking 
example of legislation restricting the right of a Tribe to game is the 
Lumbee Recognition Act, which has been introduced as S. 1132 and H.R. 
1803 in the Senate and House of Representatives, respectively. This 
bill, which would restore federal recognition to the Lumbee Tribe after 
being terminated by an Act of Congress in the 1950's, only partially 
restores the rights of the Tribe. The legislation includes a gaming 
prohibition which provides that ``The tribe may not conduct gaming 
activities as a matter of claimed inherent authority or under the 
authority of any Federal law, including the Indian Gaming Regulatory 
Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder 
promulgated by the Secretary or the National Indian Gaming 
Commission.'' Furthermore, Department of the Interior Assistant 
Secretary-Indian Affairs Kevin Washburn testified in support of the 
Lumbee Recognition Act and even noted the gaming prohibition in his 
testimony. This is one of two bills that would provide federal 
recognition while simultaneously creating a class of Tribes whose 
inherent right to game has been extinguished. \3\
---------------------------------------------------------------------------
    \2\ See H.R. 931, a bill to amend the Siletz Tribe Indian 
Restoration Act with the caveat that ``any real property taken into 
trust. . . . shall not be eligible, or used, for any gaming activity 
carried out under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et 
seq.)''; H.R. 841, a bill to make technical corrections to the Grand 
Ronde Reservation Act but stipulating that no acquisitions made under 
the Act will be eligible for gaming unless they are located within a 
very narrow geographic area; H.R. 3313, the Santa Ynez Band of Chumash 
Mission Indians Land Transfer Act of 2013, which would authorize the 
acquisition of trust land for the benefit of the Santa Ynez Band of 
Chumash Mission Indians but explicitly prohibits the Tribe's right to 
game on those lands ``(1) as a matter of claimed inherent authority; or 
(2) under any Federal law, including the Indian Gaming Regulatory Act. 
. . .''; S. 2465, the Albuquerque Indian School Land Transfer Act, 
which would require the transfer of four parcels of Federal land in 
trust for the benefit of the nineteen (19) Indian Pueblos in the State 
of New Mexico while noting that the lands cannot be used for gaming; 
and H.R. 1225, the Samish Indian Homelands Act of 2013, which would 
direct the Secretary of the Interior to place certain lands into trust 
for the Samish Indian Nation while providing that ``the Tribe may not 
conduct on any land taken into trust pursuant to this act any gaming 
activities (1) as a matter of claimed inherent authority; or (2) under 
any Federal law (including the Indian Gaming Regulatory Act (25 U.S.C. 
 2701 et seq.) (including any regulations promulgated by the Secretary 
or the National Indian Gaming Commission pursuant to that Act)).''
    \3\ The other bill is the Thomasina E. Jordan Indian Tribes of 
Virginia Federal Recognition Act of 2013 (S. 1074 and H.R. 2190), which 
would provide federal recognition to a number of Virginia tribes but 
not allow those tribes to game.
---------------------------------------------------------------------------
    Accordingly, any arguments that the H.R. 1410 creates dangerous 
precedent are wrong and inconsistent with common Congressional 
practice, and the Department's recent positions.
    The Community supports H.R. 1410 because it is narrow in scope, 
does not impact tribal sovereignty and is the simplest solution to this 
current threat to Indian gaming in Arizona. This legislation makes 
express what had been the common understanding of the parties that 
negotiated the existing gaming compacts in Arizona.
II. The ``Prop 202'' Promises and Tohono's Secret Plan for a Phoenix 
        Casino
    We believe the existing tribal-state gaming compacts in Arizona to 
be the model in the Indian gaming industry. The compact strikes a 
precise balance between tribal, state, and federal interests; places 
limits in both the number of machines and facilities; and provides 
benefits to gaming and non-gaming tribes, the State, local 
municipalities, and charities throughout Arizona. However, those who 
benefit most from the compact are the citizens of Arizona who approved 
the tribal-state compacts through a voter referendum based on the 
promise of no additional casinos in the Phoenix area until 2027 and no 
gaming in neighborhoods.
    Prior to the passage of the voter approved ballot initiative 
(``Prop 202'') which culminated in the existing Tribal-State gaming 
compacts, tribal leaders held extensive negotiations on an acceptable 
framework for all tribes. Negotiations with the State were preceded by 
16 tribal leaders, including Tohono's, signing an Agreement in 
Principle to make a good faith effort to maintain a collaborative 
relationship in compact renegotiations.
    Specifically, in the Agreement in Principle Tohono's Chairman and 
other Tribal leaders expressly agreed ``to make a good faith effort to 
develop and maintain consistent positions regarding the terms and 
issues at issue with the State of Arizona in compact negotiations.'' 
Further, Tohono's Chairman, on behalf of his Tribe, expressly agreed to 
``make a good faith effort to notify other Tribal Leaders if they 
believe that they cannot abide by this Agreement or that they must take 
positions or actions inconsistent with those of the other Tribal 
Leaders.''
    Tribes negotiated in good faith with each other (or so we thought 
at the time) to craft a model tribal-state gaming compact that 
preserved tribal exclusivity for casino gaming, greatly reduced the 
number of authorized casinos in the State, allowed for larger casinos 
and machine allotments with the ability to expand machine allotments 
through transfer agreements with rural and non-gaming tribes.
    In the negotiations, the Salt River Pima-Maricopa Indian Community 
and the three other Phoenix-metro area tribes (Ak-Chin Indian 
Community, Gila River Indian Community, and the Fort McDowell Yavapai 
Nation) each had to give up their rights under the compacts then in 
effect to build one additional casino in the Phoenix-metro area. Tohono 
O'odham was aware of this concession, and knew that it was a key 
concession the State of Arizona needed if negotiations were to move 
forward.
    However, it was only recently discovered in the State of Arizona's 
litigation against Tohono, that Tohono had begun actively working to 
investigate and purchase casino land in the Phoenix-metro area more 
than a year and a half before the conclusion of compact negotiations 
and approval of the tribal-state compacts by the voters. In light of 
Tohono's commitment to notify other Tribes if they would ``take 
positions or actions inconsistent with those of the other Tribal 
Leaders,'' it was a profound shock for the State of Arizona and the 16 
other Tribes who negotiated the compact with Tohono to discover that 
Tohono had strategically acted to open a Phoenix-metro casino while 
each of the four Phoenix-metro Tribes were giving up our rights to 
operate another casino, and while the Tribes and State were promising 
voters that there would be ``no additional casinos in the Phoenix-metro 
area.''
    The brief chronology below highlights some (but not all) examples 
of when the so-called ``Prop 202'' promises and related statements were 
made, and outlines some (but not all) of Tohono's behind-the-scenes 
activities during compact negotiations to secretly secure casino land 
in the Phoenix-metro area.

         NOTE: The Tohono activities shown in italics below were not 
        known by any of the 16 other Tribes who participated in the 
        negotiations nor by the State until the facts were recently 
        disclosed in the course of the State's litigation against 
        Tohono. The activities shown in regular type were known to all 
        negotiating Tribes and the State.

    1999--Compact negotiations began. Sixteen Tribes, including Tohono, 
signed the Agreement in Principle under which each Tribe agreed to 
``make a good-faith effort to notify other Tribal Leaders if they 
believe that they cannot abide by this Agreement or that they must take 
positions or actions inconsistent with those of the other Tribal 
Leaders.''
    March 15, 2001--Representatives of a corporation owned and created 
by Tohono O'odham under tribal law, named Vi-ikam Doag Industries 
(``VDI''), an entity tasked with locating land in the Phoenix-metro 
area for the Tohono casino, met and notes of the meeting reflect they 
discussed the ``possibility of doing a casino'' and that they were 
``interested in buying a piece of land and putting a casino on it.''
    March 18, 2001--VDI corporate representatives met with Mr. Curry, 
Tohono O'odham's Assistant Attorney General and its lead compact 
negotiator. VDI notes of that meeting show discussion included ``gaming 
compact-unsure what will happen.'' The notes also disclosed a plan to 
``put in a shell company--need to keep it quiet especially when 
negotiations on compact at stake.''
    June 26, 2001--VDI meeting with Tohono San Lucy District Council 
was tape recorded and transcript shows discussion focused on ``casino 
on the west end of Phoenix.'' ``[W]e didn't want to publicize that 
because of the confidentiality.'' The project was ``a confidential 
issue'', that Tohono representatives were ``holding it as confidential, 
because we don't want, you know, people to know we are seriously 
considering this.'' If the information about the secret casino plan 
leaked out, ``there's going to be a lot of resistance from, you know, 
the general public.''
    February 20, 2002--The State of Arizona and 17 Tribes reach 
agreement on major terms of the new compact. The new compact would 
require that each Phoenix-metro tribe (Gila River, Fort McDowell, Salt 
River, and Ak-Chin) to give up its right under the then-existing 
compacts to operate one additional casino, so there would be no more 
than seven casinos in Phoenix metro area. (In 2002, there were only 
seven casinos operating in the Phoenix-metro area). At this time the 17 
Tribes and the Arizona Indian Gaming Association (AIGA) began efforts 
to get the Arizona legislature to approve the negotiated compact. On 
February 20, 2002, Governor Hull issued a news release advising the 
public and media that the ``Major points in the [negotiated] agreement 
include. . .Number of casinos. . .No additional casinos allowed in the 
Phoenix metropolitan area and one additional casino in the Tucson 
area.''
    February 20, 2002--The Arizona Republic reported that under the 
compact negotiated between the State and Tribes, ``[m]etro Phoenix will 
see no new casinos; the number is frozen at seven.''
    February 21, 2002--The Arizona Republic again reported that under 
the negotiated compact ``metro Phoenix will see no new casinos.''
    February 21, 2002--A spokesperson for the State, Christa Severns, 
announced on radio that under the new compact, ``we're not going to see 
any more [casino] facilities in the Phoenix area.''
    February 22, 2002--The Arizona Republic in an editorial stated that 
under the compact ``Phoenix metro area would be limited to seven 
casinos, the number currently in operation.''
    February 27, 2002--Steve Hart, the State's primary negotiator and 
Director of the State's Department of Gaming, and David LaSarte, the 
Executive Director of the Arizona Indian Gaming Association, appeared 
together on Phoenix public television. Hart stated that the number of 
casinos in the Phoenix area ``is seven today and for the length of this 
Compact, 20 years, that's the number of casinos that will be in the-
kind of greater Phoenix metro area.''
    March 7, 2002--An article in the Arizona Republic reported that 
David LaSarte, Executive Director of the Arizona Indian Gaming 
Association, ``pointed out that the agreement freezes the number of 
casinos in the metro Phoenix area at seven.''
    March 11, 2002--Tohono's San Lucy District and its corporation, 
VDI, sign a ``Confidentiality Agreement'' with a realtor hired to find 
suitable casino land in the Phoenix-metro area.
    March 18, 2002--The Tucson Citizen ran an editorial by David 
LaSarte, Executive Director of the Arizona Indian Gaming Association, 
which reported that under the compacts, ``No additional casinos could 
be built in the Phoenix area.''
    March 28, 2002--The Tucson Weekly reported that under the compact 
negotiated between the 17 Tribes and the State, ``there would be no 
more casinos allowed in the Phoenix metro area.''
    March 28, 2002--Officers in Tohono's corporation, VDI, met and 
meeting notes reflect discussion about ``West [Phoenix is] not covered 
with casino, . . . .the Nation wants to have another casino . . ..We 
may be the only game in town.''
    April 2, 2002--The Arizona Republic reported on the negotiated 
compact. ``[T]he accord [Governor] Hull negotiated also would keep the 
number of Phoenix-area casinos at the current seven . . .''
    April 8, 2002 -David LaSarte, Executive Director of the Arizona 
Indian Gaming Association, testified before the Arizona legislature on 
behalf of the Association and said that one of the ``most important 
items within the agreement include[s] the limitation of facilities in 
the Phoenix-metro area to the current number [that is, seven] and 
allows the possibility for only one additional facility in Tucson.''
    April 13, 2002--VDI meeting transcript reflects discussion 
included, ``And the Tucson market is saturated . . .But , you know, 
again, there's nothing on the west end of Phoenix.''
    April 19, 2002--Arizona Governor Hull wrote a letter to State 
Senate President Randall Gnant, in which Governor Hull reported that 
under the legislative bill approving the negotiated compact, ``there 
will be no additional [casino] facilities in the Phoenix metropolitan 
area . . .''
    April 25, 2002--Arizona Governor Hull wrote an editorial published 
in the Arizona Republic in which she stated that under the negotiated 
compact, ``Phoenix will keep the same number of casinos . . .''
    June 10, 2002--VDI internal email states ``yesterday at the Task 
Force meeting we discussed the West Phx Property [and] it was 
understood that VDI can proceed with the escrow, . . .[but] the 
decision is not final until the studies are completed.''
    June 19, 2002--VDI meeting transcript discloses further discussion 
about Tohono's secret Phoenix casino project--``this is kind of a 
confidential deal.'' Few people know about it ``because, again, it's 
limited because of the confidentiality situation.''
    August 22, 2002--VDI meeting minutes discuss the purpose of the 
meeting was to update Board members who did not attend ``yesterday's 
meeting with the [Nation's] Gaming Board, the Commerce Committee, TON 
Chairman, Investment Committee Chairperson and the Treasurer. The 
[State of Arizona] governor wants to reduce the total numbers of 
casinos; every Tribe had one casino taken away except TON . . .''
    August 22, 2002--VDI meeting transcript shows discussion; ``Because 
if that's going to be the position of the State, they don't want any 
more casinos around the Phoenix area, then they're going to fight it . 
. .Which is why we really want to wait until the initiative passes 
before it gets out.''
    The 17 Tribes and the Arizona Indian Gaming Association (AIGA) 
continued their political campaign seeking Arizona voter approval of 
the negotiated compact in Prop 202. AIGA published and widely 
distributed a campaign pamphlet for voters entitled ``Answers to Common 
Questions,'' which stated that ``major funding'' for the voter pamphlet 
was provided by Tohono O'odham and three other tribes. Tohono O'odham 
contributed approximately $1.8 million in support of the campaign and 
was listed as a supporter of the Prop 202 campaign materials. The voter 
pamphlet, paid for in part by Tohono, explained to voters:

        ``Q. Does Prop 202 limit the number of tribal casinos in 
        Arizona?

         A. Yes. In fact, Prop 202 reduces the number of authorized 
        gaming facilities on tribal land, and limits the number and 
        proximity of facilities each tribe may operate. Under Prop 202, 
        there will be no additional facilities authorized in Phoenix, 
        and only one additional facility permitted in Tucson.''

    September 4, 2002--Tohono's corporation, VDI, received a casino 
Feasibility Report from their California gaming consultant who had 
secretly inspected all seven existing Phoenix-metro area casinos. The 
Report recommended that the Tohono casino not be ``located.further west 
that the Glendale area'' because it ``would attract two to three times 
more volume'' than other possible west Phoenix sites.
    September 14, 2002--The Arizona Republic ran an article that 
included a statement by Arizona Governor Hull that ``[v]oting `yes' on 
Proposition 202 ensures that no new casinos will be built in the 
Phoenix metropolitan area . . .for at least 23 years.''
    September 19, 2002--VDI meeting transcript reflects alarm about a 
possible leak of information. ``So there is some type of information 
going out or a leak.'' Discussion emphasized that possible leaks about 
the secret plan are ``still a concern out there, especially prior to 
the propositions coming up for election . . .So we just need to be 
careful about, you know, things getting out and spoiling it.''
    The official Secretary of State's Voter Guide for the November 5, 
2002 General Election provided arguments for and against adoption of 
Proposition 202. Arizona Governor Hull urged approval of Proposition 
202, explaining to voters:

         ``Voting `yes' on Proposition 202 ensures that no new casinos 
        will be built in the Phoenix metropolitan area and only one in 
        the Tucson area for at least 23 years. Proposition 202 keeps 
        gaming on Indian Reservations and does not allow it to move 
        into our neighborhoods.''

    In the Voter Guide, Arizona Attorney General Janet Napolitano also 
argued for approval of Proposition 202, stating: ``Most Arizonans 
believe casino gaming should be limited to reservations. I agree . . . 
[Prop 202] also prevents the introduction of casino gaming, such as 
slot machines, by private operators into our neighborhoods.''
    September 25, 2002--According to an Arizona Department of Gaming 
Memorandum dated October 2, 2002, a Town Hall meeting was held in 
Tucson moderated by a representative from Governor Hull's office. The 
purpose of the meeting was to discuss the pros and cons of the gaming 
propositions on the ballot. According to the Memorandum, current Tohono 
O'odham Chairman, Mr. Ned Norris, represented the Tohono O'odham 
Nation. The Memorandum recounts that ``Mr. Norris said that 201 [a 
competing ballot proposition] will open gaming into cities and that the 
citizens of Arizona have, repeatedly over the years, expressed their 
desire to keep gaming on the reservation.''
    September 29, 2002--The Arizona Republic reported that Proposition 
202 ``stipulates that no more casinos could be built in Maricopa 
County.''
    October 22, 2002--The Arizona Republic ran an unsigned editorial 
stating that Proposition 202 ``would not allow any new casinos to be 
built in the metropolitan Phoenix area.''
    October 23, 2002--The Arizona Republic ran an article reporting 
that Proposition 202 ``would not permit any new casinos in Maricopa 
County.''
    October 25, 2002--VDI meeting transcript shows discussion about the 
secret casino plan and that ``we are . . .a week and a half, two weeks 
away from the vote . . .And you know, assuming that it is [Prop] 202 
that passes, then, you now, we'll proceed in how we need to make that 
project develop.''
    October 28, 2002--David LaSarte, Executive Director of the Arizona 
Indian Gaming Association, appeared on television and stated that 
``They [the 17 Tribes Coalition] voluntarily made it so that there will 
be no new casinos in Phoenix.''
    October 29, 2002--VDI notes of a meeting with Tohono San Lucy 
District Council, attended by Mr. Curry, Tohono Assistant Attorney 
General and its lead compact negotiator, reflect, ``Hold off until the 
election is over.'' Transcript continues, ``again, you know, 
propositions are about to be voted on November 5th . . .[W]e have been 
told, you know, that this information should be held in confidence, 
because they are concerned regarding information leaking out.''
    November 5, 2002--Arizona voters narrowly approved Proposition 202 
by a vote of 50.9 percent to 49.1 percent. Between November 1999 and 
December 2002, Arizona Tribes met privately over 85 times on compact 
negotiations and the voter campaign. During the same period, Tribes had 
over 35 meetings with the State regarding compact negotiations and the 
voter campaign.
    November 6, 2002--An Article published by the Tucson Citizen 
reported that Prop 202 was approved by the voters. Tohono O'odham 
Nation Chairman at the time, Edward Manuel, who signed the 1999 
Agreement in Principle among Tribes, was quoted as saying: ``To us, 
this is a major victory. We stayed together. We stayed united. We will 
try to keep working on that to keep the unity together.''
    December 4, 2002--One month after voters approved Proposition 202, 
Tohono O'odham signed its new compact.
    February 10, 2003--Transcript of VDI's meeting shows discussion 
regarding the new compact: ``[T]he compact has been signed, and so 
there are no more real concerns that might jeopardize our chances on 
this discussion. So I think they're ready to move forward.''
    February 21, 2003--VDI memorandum to Tohono's San Lucy District 
Council: ``Due to the push by the Commerce Committee, Gaming Authority, 
and the Nation to move forward with the West Phoenix Project, we felt 
the need to provide a written update now . . .TOGA [Gaming Authority], 
Commerce Committee, and the Chairman made a very big commitment to move 
and push this project as quickly as we can so that we do not miss out 
on the opportunity.''
    February 23, 2003--VDI Minutes reflect discussion of possibly using 
the Gila Bend Act to acquire land and build a casino in the Phoenix-
metro area, ``but politically we might have problems. If we decide to, 
we need to put in escrow and it needs to be kept confidential for the 
time being.'' VDI meeting transcript reflects this discussion: ``I just 
hope too that, in terms of the political (inaudible) that's going to be 
coming, that some of the metro tribes over there don't come back and 
jump on us too . . .Might Gila River or Salt River indicate that it's a 
violation of the 202 (inaudible) metro area [inaudible]? . . .Well 
that's what I said in terms of the political impact, is that even- even 
those metro tribes, particularly those three that are right there, 
might--might say something. But that's a big question mark. That's 
all.''
    March 12, 2003--Tohono created a shell corporation in the State of 
Delaware in order to secretly buy land for a Phoenix-metro area casino.
    August 21, 2003- Tohono's Delaware shell corporation bought the 54-
acre parcel in the Phoenix-metro area.

    In January 2009, Tohono announced its intentions and filed its 
application to acquire the 54-acre Phoenix-metro parcel in trust as a 
reservation. Upon hearing of Tohono O'odham's plans to open a casino in 
the Phoenix-metro area, many Arizona Tribes who for several years had 
negotiated the compact with Tohono signed letters and passed 
resolutions formally opposing the plan, including the (1) Ak-Chin 
Indian Community, (2) Fort McDowell Yavapai Nation, (3) Gila River 
Indian Community, (4) San Carlos Apache Tribe, (5) Tonto Apache Tribe, 
(6) White Mountain Apache Tribe, (7) Salt River Pima-Maricopa Indian 
Community, (8) Pueblo of Zuni, (9) Hualapai Tribe, (10) Cocopah Tribe, 
(11) Quechan Tribe, and the (12) Yavapai-Apache Nation. The reasons 
given by all these tribes was that Tohono's plans violated the promises 
made by Tribes to Arizona voters in Prop 202 and threatened tribes' 
exclusive right to operate casinos in the state.
    On April 29, 2011, the member Tribes of the Arizona Indian Gaming 
Association passed a formal Resolution reaffirming the Tribes' 
Proposition 202 promises. Predictably, Tohono voted against the 
Resolution.
    Then, on June 29, 2011, in the State's litigation against Tohono 
O'odham, Tohono filed an Answer in court which admitted that in the 
midst of the Prop 202 campaign conducted by the 17 Tribes including 
Tohono O'odham--a campaign for approval of a compact that would require 
other Tribes to reduce the potential number of casinos in the Phoenix 
metro area--Tohono was simultaneously trying to buy Phoenix-metro land 
for a casino. Tohono O'odham also admitted that various parties 
``characterized the provisions of Proposition 202 requiring most tribes 
to give up the right to one gaming facility as `no additional 
facilities authorized in Phoenix, and only one additional facility 
permitted in Tucson' and that Tohono O'odham did not contradict those 
statements.'' Tohono admitted ``that it participated in the 
negotiations that led to Proposition 202, supported Proposition 202, 
and entered into a new compact in 2002 after the voters approved 
Proposition 202.'' Finally, Tohono admitted ``that in 2002 it was 
considering the possibility of acquiring property in the Phoenix 
metropolitan area for gaming purposes; that it did not disclose that it 
was considering such an acquisition; and that it had no obligation to 
make such a disclosure'' to other Tribes, to the State, or to the 
voters.
    Tohono Chairman Norris has not denied, because he could not, that 
the 17 tribe coalition had made promises directly to the Arizona voters 
that there would be ``no additional casinos in the Phoenix metropolitan 
area.'' Remarkably, when confronted, his response to some of these 
Tribes was, ``those are just words on a publicity pamphlet.'' As 
children, one of the most fundamental and important lessons we all 
learned from our parents was, ``keep your promises.'' This principle 
has been taught for millennia. ``Never promise more than you can 
perform.'' (Publius Syrus, First Century B. C., Maxim 528). Dishonesty 
finds no haven, even in publicity pamphlets.
    It is not an easy thing to talk about a lack of ``good faith'', and 
we do so reluctantly. However, we ask the Senate to act on H.R. 1410, 
so that in future years, we will not have to look back and say to our 
children that ``we should have done something.''
III. Commercial Gambling Interests Have Long Opposed Tribal Gaming 
        Exclusivity in Arizona
    Commercial gambling interests have worked to get authorization 
through legislative action or an Initiative to conduct commercial 
gaming in Arizona since the first tribal compacts were signed in 1993. 
Due to the concerted and persistent efforts of Arizona Tribes, these 
efforts have failed to date. If Congress fails to act to stop Tohono's 
effort to open a casino and, as a result, Tribes are viewed by the 
Legislature or public as breaking the promise that there would be ``no 
additional casinos in the Phoenix-metro area,'' Tribes very likely will 
not be able to defeat efforts to open up the State to commercial 
gaming. Tribes would no longer have exclusivity, and all Tribes, both 
gaming and non-gaming would be significantly harmed.
    To get a sense of this on-going threat to our Tribal gaming 
exclusivity, we highlight below a brief snapshot of the recent activity 
targeted to bringing commercial gaming to Arizona off of reservations.

         Article, Racino: A key budget option for the Arizona 
        Legislature, J. Heiler, July 21, 2009

         Article, OpEd, Senator Steve Pierce: Boosting Arizona's 
        Economy, How Racinos Could Save Our State, S. Pierce, May 12, 
        2011

         Editorial, Racinos Could Bring Much-Needed Revenue, The Daily 
        Courier, January 20, 2011

         Editorial, Maybe Racinos Aren't Such A Bad Idea, The Paulick 
        Report, January 27, 2011

         Application to the Arizona Secretary of State for an 
        Initiative Petition (to ``permit[] racetracks and private 
        casinos to operate in Arizona''), C. Nicholson, December 9, 
        2011

         H.B. 2220, First Regular Session 2011, Arizona House of 
        Representatives, Relating to Horse and Dog Racing

         Committee on Natural Resources and Rural Affairs, Arizona 
        State Senate, First Regular Session, Hearing scheduled for 
        October 30, 2013 on ``Discussion of 2002 Ballot Initiative 
        Proposition 202,'' (Hearing later cancelled)

         S. B. 1468, Second Regular Session 2014, Arizona Senate, 
        Relating to Gambling

    The primary organization that Arizona Tribes formed to promote 
their common interests in Indian gaming is the Arizona Indian Gaming 
Association (AIGA). In 2009 in response to specific threats from 
commercial gaming companies, including out of state racino operators, 
Arizona Tribes also formed Arizonans for Tribal Government Gaming 
(ATGG). (I am currently the Chair of ATGG and on the Executive 
Committee of AIGA.)
    A critically important mission of both AIGA and ATGG is combatting 
the efforts of commercial gaming interests, from both within the State 
of Arizona and outside the State, to gain a foothold in Arizona. 
Countless hours and many millions of dollars have been spent to combat 
these efforts. Given Arizona's burgeoning population and particularly 
the population concentration in the Phoenix metropolitan area, we know 
that Arizona is a prime target for the expansion of commercial gaming.
    Historically, when commercial gaming interests attempted to expand 
into Arizona, they would target the Tribes' exclusivity as an argument 
in favor of their expansion efforts. These arguments have never 
succeeded with the Legislature or the voters because they understand 
that tribal gaming on reservations was unique and limited and that the 
Tribes had a well-established track record of delivering on their 
promises and honoring the terms of their compacts. If the Tribes are 
now viewed, due to the claims of sovereign immunity and deceit of the 
Tohono O'odham, as breaking their promises and engaging in off 
reservation gaming, then these arguments will gain credence and the 
Tribes' exclusivity will be forever lost.
IV. The Tohono O'odham Nation's Deceit is Calculated to Break Promises 
        Made to the State of Arizona and the Voters of Arizona and Prop 
        up Their Thriving Gaming Enterprise
    Tohono O'odham's actions constitute the deliberate effort of one 
tribe to use deception and sovereign immunity as political tools to 
make and break promises for pecuniary benefit. The Tohono O'odham 
Nation already has very successful gaming enterprise. Tohono O'odham 
maintains two casinos in the Tucson metropolitan area and an additional 
casino in Why, Arizona. Additionally, under the current gaming Compact, 
Tohono O'odham is allowed to develop a fourth casino on their existing 
reservation lands, including in the Tucson metropolitan area. H.R. 1410 
would not impact the Tribe's existing three casinos or impact its 
ability to develop a fourth casino on its existing reservation or on 
its aboriginal lands.
    Tohono O'odham's success in gaming goes back to early 1992, when 
the State of Arizona and certain Arizona tribes, including Tohono 
O'odham were at a standoff regarding Indian gaming in the State. To 
overcome legal challenges and political opposition, the tribes 
repeatedly made statements that no gaming could occur outside of 
existing reservations without the concurrence of the Governor. During 
Federal District Court mediation with the State in 1993, Tohono O'odham 
submitted a document, ``Comparison of Compact Proposals,'' which argued 
that the State of Arizona's insistence on compact provisions requiring 
the Governor's concurrence for any off-reservation gaming was 
unnecessary because ``existing federal law requires the Governor's 
concurrence. This is adequate protection to the State and local 
interests.'' Tohono O'odham Nation's Comparison of Compact Proposals at 
11, No 93-0001 PHX (D. Ariz. Jan. 19, 1993). In a brazenly calculated 
reversal, Tohono O'odham now claims that a legal loophole allows it to 
unilaterally pursue a casino off existing reservation lands without the 
concurrence of the Governor of Arizona or any input from any of the 
local communities.
    Further, on June 8, 1993, tribal representatives met with staff for 
the State legislature and provided a handout entitled ``After Acquired 
Lands,'' which stated that ``[a]nother exception to the prohibition of 
gaming on after acquired lands is when the lands are taken into trust 
as part of a settlement of a land claim. This will not effect [sic] 
Arizona because aboriginal land claims in Arizona have already been 
settled pursuant to the Indians Claims Commission Act of 1946.'' The 
handout was distributed on behalf of all tribes present, including 
Tohono O'odham. Once State officials had received these assurances, the 
Governor of Arizona entered into gaming compacts with the tribes to 
allow tribal gaming in Arizona.
    Tohono O'odham has also asserted, through its attorneys, its right 
to open all four of its authorized casinos in the Phoenix metropolitan 
area on land acquired under the Gila Bend Act. These brazen contentions 
demonstrate that Tohono O'odham intends to repeat its pattern of 
deception wherever advantageous, and will do so regardless of the 
promises made or the toll on all other Arizona tribes. This deliberate 
policy of deceit, which is calculated to avoid court review, leaves 
Congress as the only forum that can protect the promises made to the 
people of Arizona.
V. Congress is the Only Institution that Can Provide Accountability on 
        this Matter
    Tohono O'odham made the calculated decision of using sovereign 
immunity as a shield to preclude any review of its deceitful actions 
during the compact negotiations and Prop 202 campaigns of the early 
2000's. While Tohono tells members of Congress to let the court address 
this matter, in court, Tohono argues that the court does not have the 
jurisdiction to review its actions. Definitive action by Congress is 
therefore necessary to resolve, once and for all, the intent of the 
Arizona gaming compacts and more importantly, preserve the deal that 
was struck in 2002.
    The State of Arizona filed a complaint in federal court against 
Tohono O'odham in 2011 alleging that Tohono ``had a secret plan at the 
time it was negotiating the Compact to build a gaming facility in the 
Phoenix metropolitan area., notwithstanding its contrary 
representations'' to the State and the public. These ``representations 
induced the State to enter into the Compact, and the State would not 
have signed the Compact had it known of the Nation's plans.'' In 
another claim, the State alleged that the Nation ``materially and 
fraudulently misrepresented that it had no plans.to open a gaming 
facility in the Phoenix metropolitan area,'' and that the ``State's 
assent to the Compact was induced by the Nation's misrepresentations 
and intentional failures to disclose material facts.''
    The Tohono O'odham raised tribal sovereign immunity and completely 
avoided scrutiny of legal claims filed by the State of Arizona that 
Tohono acted with fraud in negotiating its gaming compact, 
misrepresented facts during the negotiations, and made promises 
intending that the State rely on them to its detriment. Due to 
sovereign immunity, the federal court dismissed the fraud, 
misrepresentation and promissory estoppel claims, even though the court 
stated that ``Plaintiffs' evidence would appear to support a claim for 
promissory estoppel [but] it is barred by sovereign immunity.''
    On May 27, 2014, the U.S. Supreme Court decided a remarkably 
similar case, Michigan v. Bay Mills Indian Community. The Court, in a 5 
to 4 decision, ruled that the Bay Mills Tribe could assert tribal 
sovereign immunity and avoid claims filed by the State of Michigan that 
the Tribe's off-reservation casino was illegal. The Court repeated 
several times that it was up to Congress to fix the problem of a tribe 
asserting sovereign immunity to avoid legal claims by a State regarding 
illegal gaming:

         ``The Constitution grants Congress powers we have consistently 
        described as plenary and exclusive to legislate in respect to 
        Indian tribes . . . Thus, unless and until Congress acts, the 
        tribes retain their historic sovereign authority.''

         ``Our precedents . . .had established a broad principle, from 
        which we thought it improper suddenly to start carving out 
        exceptions. Rather, we opted to defer to Congress about whether 
        to abrogate tribal sovereign immunity for off-reservation 
        commercial conduct.''

         ``Congress exercises primary authority in this area and 
        remains free to alter what we have done . . .''

         ``[I]t is fundamentally Congress' job, not ours, to determine 
        whether or how to limit tribal immunity.''

         ''[W]e decline to revisit our case law, and choose instead to 
        defer to Congress.''

    Opinion at 5, 7, 16, 17, and 21 (internal citations and quotations 
omitted).

         More succinctly, Justice Scalia dissented and wrote:

         In Kiowa Tribe of Okla. V. Manufacturing Technologies, Inc., 
        523 U.S. 751 (1998), this Court expanded the judge-invented 
        doctrine of tribal sovereign immunity to cover off-reservation 
        commercial activities. I concurred in that decision. . . . I am 
        now convinced that Kiowa was wrongly decided; that, in the 
        intervening 16 years, its error has grown more glaringly 
        obvious. . . . Rather than insist that Congress clean up a mess 
        that I helped make, I would overrule Kiowa. . . .

    While the co-sponsors of H.R. 1410 and the Arizona tribes who 
support it, must reluctantly be critical of Tohono's conduct here, it 
is hard to avoid the fact that Tohono has, from the outset, repeatedly 
thwarted the normal process for obtaining federal approval of Indian 
gaming, and used sovereign immunity as a shield to insulate it from the 
State's claims against it for fraud in the inducement, material 
misrepresentation, and promissory estoppel. Enactment of H.R. 1410 
would in no way abrogate Tohono's sovereign immunity. That facet of its 
tribal sovereignty will likely remain intact in any current litigation 
surrounding this issue. Any circumstance where a court would find that 
immunity to have been abrogated would not arise because of the Keep the 
Promise Act. Passage of H.R. 1410 would obviate the need for the State 
to continue its suit against Tohono and might result in dismissal of 
their claims but this would not result from any repeal of sovereign 
immunity pursuant to the Keep the Promise Act. In fact, the intent of 
H.R. 1410 is to address the issues underlying the fraud, 
misrepresentation, and promissory estoppel claims without piercing 
Tohono's immunity. However, as the branch of the Federal government 
with plenary power over Indian affairs, it is well within Congress' 
authority to enact this legislation. It is the merits of these claims 
that the Keep the Promise Act is seeking to address and Congress is the 
only institution that can provide accountability in this matter.
VI. Conclusion
    The Salt River Pima-Maricopa Indian Community urges Congress to 
pass H.R. 1410. It is needed to reaffirm the promise that the tribes of 
Arizona made to each other, the State of Arizona and voters that there 
would be ``no additional casinos in the Phoenix metropolitan area'' for 
the duration of the existing compacts. The clarification does not 
interfere with Tohono O'odham's desire to have land taken into trust. 
It upholds the status quo in Arizona and does not adversely affect any 
tribe. Without this bill, the other Arizona Tribes will suffer because 
the current gaming compact structure will absolutely be compromised. We 
support this legislation.

    The Chairman. Thank you, President Enos, for your 
testimony. I appreciate it very much.
    Mr. Weiers. the floor is yours.

   STATEMENT OF HON. JERRY WEIERS, MAYOR, CITY OF GLENDALE, 
                            ARIZONA

    Mr. Weiers. Thank you, and good afternoon Chairman Tester 
and all the members of the Committee.
    I am here today to discuss the proposed controversial 
tribal casino in the city of Glendale. I will present my 
council's most recent views on this project, and then also my 
personal request for swift action on H.R. 1410, the Keep the 
Promise Act.
    My name is Jerry Weiers, I was born in Deadwood, South 
Dakota. My family moved to Arizona when I was just eight years 
old. I am the Mayor of the city of Glendale, a city of 232,000 
people, which is the 72nd largest city in the United States. 
Before becoming Glendale's mayor, I served in the Arizona 
legislature for eight years.
    I supported the Arizona Proposition 202 in 2002, the Bell 
Initiative, which gave tribes the exclusive right to conduct 
gaming, but limited casinos to tribal reservations. One key 
aspect of the initiative was that there would be no additional 
casinos in the Phoenix area.
    As a Glendale resident, this was the primary factor in my 
support for that proposition. My wife and I chose to live in 
Glendale in part because it was not near any of the large 
Phoenix area casinos. We believed the initiative preserved our 
neighborhood as it was.
    Like many Glendale residents, I was blindsided when the 
Tohono O'odham Nation announced in January 2009 that it was 
going to create a reservation and build a Las Vegas style 
casino on a 54-acre county island within our city limits. This 
announcement came seven years after the voters approved the 
Bell Initiative, which we thought prohibited new casinos in the 
area. It also came five years after Raymond Kellis High School 
opened just across the street from where Tohono O'odham was 
proposing to operate its casino, a site within two miles of 
12,000 homes.
    As you can imagine, we were mad. We are mad. The city has 
been involved in two lawsuits at an enormous financial cost. 
The city council passed a resolution opposing the casino 
because it would hurt the interests of our residents. My wife 
and I were completely shocked at what we learned while Tohono 
O'odham and other tribes were telling voters that there would 
be no additional casinos in the Phoenix area, Tohono O'odham 
was actively looking to purchase casino land in Glendale. 
Moreover, they knew what they were doing was wrong. The tribe 
went to great lengths to keep their plans secret from other 
tribes, local governments and voters.
    The deceit did not stop there. Tohono O'odham had already 
purchased its Glendale land when the school district announced 
plans to build a new Kellis High school just across the street. 
Tohono O'odham watched us build the school while continuing to 
keep its casino plans secret and said nothing. We never thought 
our children would be across the street from a Las Vegas style 
casino.
    My city has been in chaos for the past five years and the 
Federal Government seems unwilling to help us. Last week, after 
the Interior Department decision to take the Tohono O'odham's 
land into trust, the city council voted four to three to repeal 
our 2009 resolution opposing the casino, and passed a new 
resolution. This new resolution says that Glendale does not 
object to the trust land being utilized for gaming.
    President Kennedy once said, let us never negotiate out of 
fear. Well, with few choices left, a slim majority of my 
council felt that we had to come to the bargaining table with 
the TO. Our choice was not ideal, continue to fight and hope 
for action from this body, or give into this casino being 
forced on us. It is frustrating to be a city of our size and 
have no choice on a casino proposed by a tribal government that 
is more than 100 miles away.
    It is important to note that Glendale may not be the only 
city impacted. Our sister cities know that unless Congress 
acts, they may be next. There are over 200 other county islands 
in the Phoenix metropolitan area. And Tohono O'odham attorneys 
have said that the tribe has the right to close its existing 
three casinos and open them on these county islands.
    We are a test case, but it is the start of a very slippery 
slope. If Congress does not act, the entire Phoenix area should 
be prepared for more off-reservation casinos.
    As a former State legislator, I know that if gaming happens 
in Glendale, there will be a strong effort in the Arizona 
legislature to authorize non-Indian gaming in the State. That 
will have a devastating effect on all of our tribes. Even if 
the State legislative effort to authorize non-Indian gaming is 
not successful, these compacts are only valid for another dozen 
years. At that time, tribes will have to go back to the voters 
and after what we have experienced, I can't say I would blame 
the voters for questioning agreements of the past.
    That is why I urge this Committee to approve H.R. 1410, so 
that it may be quickly adopted by the Senate. The bill is not 
about holding one tribe back, but preserving its much-needed 
economic development tool for all of Arizona's tribes.
    Thank you once again for the opportunity to testify. I am 
happy to answer any questions that you may have, sir.
    [The prepared statement of Mayor Weiers follows:]

   Prepared Statement of Hon. Jerry Weiers, Mayor, City of Glendale, 
                                Arizona
    Good afternoon Chairman Tester and members of the Committee. I am 
here today to discuss a proposed and controversial tribal casino in the 
City of Glendale. I will present my Council's most recent views on this 
project, and also my personal request for swift action on H.R. 1410, 
the Keep the Promise Act.
    My name is Jerry Weiers. I was born in Deadwood, South Dakota and 
my family moved to Arizona when I was 8 years old. I am the Mayor of 
Glendale, a city of 232,000 and the 72nd largest city in the country. 
Before becoming Glendale's Mayor, I served in the Arizona Legislature 
for eight years.
    I supported Arizona Proposition 202, the 2002 ballot initiative 
which gave tribes the exclusive right to conduct gaming, but limited 
casinos to tribal reservations. One key aspect of the initiative was 
there would be no additional casinos in the Phoenix area.
    As a Glendale resident, this was a primary factor in my support for 
the Proposition. My wife and I chose to live in Glendale in part 
because it was not near any of the large Phoenix area casinos, and we 
believed the initiative preserved our neighborhood as it was.
    Like many Glendale residents, I was blindsided when the Tohono 
O'odham Nation, who I will refer to respectfully as T.O., announced in 
January 2009 that it was going to establish a reservation and build a 
Las Vegas-style casino on a 54-acre county island within our City. This 
announcement came seven years after the voters approved the ballot 
initiative which we thought prohibited new casinos in the area. It also 
came five years after Raymond Kellis high school opened across the 
street from where T.O. is proposing to operate its casino, a site 
within two miles of 12,000 homes.
    As you can imagine, we were mad. The City has been involved in two 
lawsuits, at an enormous financial cost. The City Council passed a 
resolution opposing the casino because it would hurt the interests of 
our residents.
    My wife and I were completely shocked at what we learned. While 
T.O. and the other tribes were telling the voters that there would be 
no additional casinos in the Phoenix area, T.O. was actively looking to 
purchase casino land in Glendale. Moreover, they knew what they were 
doing was wrong. The Tribe went to great lengths to keep their plans 
secret from the other tribes, local governments and voters.
    The deceit did not stop there. T.O. had already purchased its 
Glendale land when the school district announced plans to build the new 
Kellis High School across the street. T.O. watched us build the school 
while continuing to keep its casino plans secret and said nothing. We 
never thought our children would be across the street from a Las Vegas-
style casino.
    My City has been in chaos for the past five years, and the federal 
government seems unwilling to help us. Last week, after the Interior 
Department's decision to take T.O.'s land into trust, the City Council 
voted 4-3 to repeal our 2009 resolution opposing the casino and passed 
a new resolution. This new resolution says that Glendale ``does not 
object to the Trust Land being utilized for gaming.'' President Kennedy 
once said, ``Let us never negotiate out of fear.'' Well, with few 
choices left, a slim majority of my Council felt that we had to come to 
the bargaining table with T.O. Our choice was not ideal: continue to 
fight and hope for action from this body, or give in to this casino 
being forced on us. It is frustrating to be a city of our size and have 
no voice on a casino proposed by a tribal government more than a 
hundred miles away.
    It is important to note that Glendale may not be the only city 
impacted. Our sister cities know that unless Congress acts, they may be 
next. There are over 200 other county islands in the Phoenix 
metropolitan area. And, T.O. attorneys have said the Tribe has the 
right to close its existing three casinos and open them on these county 
islands. We are a test case, but it is the start of a very slippery 
slope. If Congress does not act, the entire Phoenix area should be 
prepared for more off-reservation casinos.
    As a former State legislator, I know that if gaming happens in 
Glendale, there will be a strong effort in the Arizona Legislature to 
authorize non-Indian gaming in the State. And that will have a 
devastating effect on all Tribes.
    And even if the state legislative effort to authorize non-Indian 
gaming is unsuccessful, these compacts are only valid for another dozen 
years. At that time, the tribes will have to go back to the voters. 
After what we have experienced, I can't say I'd blame voters for 
questioning agreements of the past.
    That is why I urge this Committee to approve H.R. 1410 so that it 
may be quickly adopted by the Senate. The bill is not about holding one 
tribe back, but preserving this much needed economic development tool 
for all Arizona tribes.
    Thank you once again for the opportunity to testify today, and I am 
happy to answer any questions the Committee may have.
    Attachment
    
    

    The Chairman. Mayor Weiers, thank you for your testimony.
    Chairman Norris, you have the floor.

  STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM 
                       NATION OF ARIZONA

    Mr. Norris. Thank you. Mr. Chairman, members of the 
Committee, my name is Ned Norris, Jr. I am chairman of the 
Tohono O'odham Nation. I am here today representing the 
nation's more than 32,000 members.
    Since time immemorial, the nation and its members have 
lived in southern and central Arizona. Our reservation is 
composed of several non-contiguous areas in Pima, Pinal, and 
Maricopa counties. Most of our reservation land is located in 
remote, isolated areas and our population is one of the poorest 
in the United States, with average individual incomes of just 
over $8,000.
    In the 1960s, the Corps of Engineers built a dam to protect 
nearby non-Indian commercial farms. The dam backed up and 
flooding destroyed nearly 10,000 acres of our Gila Bend 
Reservation land in a fertile area of Maricopa County, ruining 
homes, farms and our local church. Our elders recall the 
desecration of their cemetery as a result of flooding. Tribal 
members were forced to move onto a small, 40-acre parcel of 
land known as San Lucy Village where today they crowd into 
small houses and live well below the poverty line.
    In 1986, Congress enacted the Gila Bend Act to compensate 
the nation for its losses. Pursuant to the Act, the nation 
settled our legal claims and gave up nearly 10,000 acres of our 
reservation land and water rights. In return, we have the right 
to acquire replacement reservation land without any conditions 
on future use. We acquired replacement land in the West Valley 
in Maricopa County and the Department of Interior took it into 
trust. Four West Valley cities, Peoria, Tolleson, Surprise and 
now the city of Glendale, have taken formal positions of 
support for the nation's project and against H.R. 1410. I am 
honored to be joined today by Mayor Barrett of Peoria and 
council members Sherwood and Chavira from Glendale.
    We are respectful of rights of individuals, like Mayor 
Weiers, to express their personal opinions regarding the 
nation's project. However, official, formal positions of the 
communities in the West Valley could not be more clear. They 
support the project. Undaunted by this local support, opponents 
of the nation's project have pushed H.R. 1410, a bill that 
would undo a nearly 30-year old land and water rights 
settlement agreement, all in order to protect the interests of 
a few East Valley gaming tribes. Proponents of H.R. 1410 
asserted a wide range of legal claims to block the nation's 
project. But a Federal court has now explicitly confirmed that 
the Arizona gaming compact that the nation, the State and all 
tribes explicitly signed, provides that the nation has the 
right to conduct gaming on this property.
    The court roundly rejected interpretations of the compact 
advanced by proponents of H.R. 1410, calling them ``entirely 
unreasonable.''
    Mr. Chairman, this is the third time in five years I have 
had to testify before Congress in defense of the nation's 
rights. The nation has complied with the letter of every 
applicable law, and has gracefully answered every allegation, 
no matter how ridiculous or how offensive, in every lawsuit and 
in every congressional hearing. But the millions of dollars the 
nation has been forced to spend defending its rights would have 
been better spent to build houses for our elderly, pay for 
college tuition for our children and bolster our Head Start 
programs.
    Honorable Chairman of the Committee and members of the 
Committee, the nation respectfully requests that you put an end 
to this self-serving, mean-spirited, multi-million dollar 
lobbying campaign against our people and stop this piece of 
19th century throwback legislation. We ask that you see this 
legislation for what it is: the first time in the modern era in 
which Congress would unilaterally renege on the solemn promises 
made by the United States in an Indian land and water rights 
settlement.
    This project is fully in line with IGRA Section 20, equal 
footing exceptions, and would benefit the nation, local 
communities and the State of Arizona for the next 25 years and 
beyond.
    I thank you for your time. The nation is happy to answer 
any questions.
    [The prepared statement of Mr. Norris follows:]

 Prepared Statement of Hon. Ned Norris, Jr., Chairman, Tohono O'odham 
                                 Nation
    My name is Ned Norris, Jr. I am the elected Chairman of the Tohono 
O'odham Nation. The Nation is a federally recognized tribe with more 
than 32,000 members. Our people have lived since time immemorial in 
southern Arizona where our several non-contiguous reservation lands--
including our West Valley Reservation in Maricopa County--are located. 
I thank the Committee for giving the Nation an opportunity to testify 
today.
The United States' Promise to the Nation
    Within my lifetime, the United States Corps of Engineers built a 
dam to protect large, commercially-owned farms near the Nation's Gila 
Bend Indian Reservation, which at the time encompassed nearly 10,000 
acres of prime agricultural land in Maricopa County. That dam caused 
perpetual flooding of our reservation, ruining homes, individually- and 
tribally-run farms, and our local church. I often have listened to 
elders describe how their cemetery was desecrated as the result of the 
flooding. These are not easy stories to tell, and these are wounds that 
have not yet healed.
    All of the residents of this nearly 10,000-acre reservation were 
forced to move onto a small 40-acre parcel of non-flooded land known as 
San Lucy Village. Our San Lucy tribal members continue to live there 
well below the poverty line with multiple families crammed into small 
HUD houses. Despite these hardships, they live there still because the 
Gila Bend Indian Reservation is their homeland.
    The Corps of Engineers flooded the Nation's Gila Bend Indian 
Reservation even though it had no authority from Congress, and 
certainly no consent from the Nation, to do so. The destruction caused 
by the flooding effected an unconstitutional taking of the Nation's 
federally-protected property rights, and an unconscionable breach of 
trust by our federal trustee. Looking for a solution and a way to avoid 
litigation over the matter, Congress instructed the Department of the 
Interior to search for replacement lands with comparable agricultural 
potential (including comparable senior water rights). After several 
years of looking for available lands within a 100-mile radius of the 
destroyed reservation, Interior ultimately reported to Congress that 
there was no way to replace the Nation's destroyed lands with new 
agricultural lands. H.R. Rep. 99-851 at 6 (1986).
    As an alternative way to compensate the Nation for its losses and 
for the Corps' wrongdoing, Congress enacted federal legislation in 1986 
in which the United States promised that if the Nation relinquished its 
considerable legal claims against the United States, relinquished its 
considerable water rights (which in 1986 were estimated to be worth 
$100 million), and relinquished its title to nearly all of the Gila 
Bend Indian Reservation, the United States would in return acquire a 
limited amount of replacement trust land for the Nation in Maricopa, 
Pima or Pinal Counties (where our other reservation areas are located). 
That statute, the Gila Bend Indian Reservation Lands Replacement Act 
(Pub. L. 99-503) (``1986 Gila Bend Act'') promised that the Nation 
would be able to use its replacement lands as a ``Federal Indian 
Reservation for all purposes''. Id.  6(d) (emphasis added). Under this 
legislation, which the Department of the Interior has described as 
``akin to a treaty,'' Tohono O'odham Nation v. Acting Phoenix Area 
Director, Bureau of Indian Affairs, 22 IBIA 220, 233 (1992), the United 
States also agreed to pay the Nation $30 million. I want to be clear 
that $30 million was only a small fraction of the actual value of our 
relinquished land and water rights--the primary way in which the United 
States compensated the Nation was through its promise that the Nation 
would have a right to acquire replacement land that would have the same 
legal status as the destroyed land.
    Relying on the United States' promise in the 1986 Gila Bend Act 
that we could acquire new land that would be treated as a reservation 
for all purposes, in 1987 the Nation executed a settlement agreement 
with the United States by which the Nation gave up its right to sue the 
United States and relinquished its rights to the land and water of the 
destroyed Gila Bend Reservation.
The Nation's Reservation in the West Valley
    The Nation acquired unincorporated Maricopa County land that is 
located in the ``West Valley'' (a broad area west of the City of 
Phoenix), which is about 49 miles from the Gila Bend Reservation, and 
which lies between the cities of Glendale and Peoria. The land we 
purchased in the West Valley meets the strict requirements set forth in 
the 1986 Gila Bend Act, which limits the location and the amount of 
land the Nation may acquire as replacement trust land. Because the 
federal courts and the Department of the Interior agreed that our West 
Valley land met these strict statutory requirements, the Department of 
the Interior completed its congressionally-imposed duty to acquire the 
land in trust, and it is now part of the Tohono O'odham Reservation. 
Letter of Kevin Washburn, Assistant Secretary--Indian Affairs, United 
States Department of the Interior, to Ned Norris Jr., Chairman, Tohono 
O'odham Nation (July 3, 2014) (``Decision Letter'').
    The tribes pushing for passage of H.R. 1410 made a series of 
arguments as to why the Nation's West Valley land did not meet the 
requirements of the 1986 Gila Bend Act, but every one of these 
arguments has been rejected by the federal courts and by the Department 
of the Interior, the agency with the most relevant expertise on these 
matters. For more information about how and why the Nation's West 
Valley land meets the requirements imposed by Congress in the 1986 Gila 
Bend Act, please see the following:

         1. Memorandum of the Field Solicitor, Phoenix Field Office Re: 
        Proposed Acquisition of Land for Gaming Purposes by Tohono 
        O'odham Nation (February 10, 1992);

         2. Memorandum of the Field Solicitor, Phoenix Area Office Re: 
        Acquisition of 134.88 Acres by Tohono O'odham Nation Pursuant 
        to P.L. 99-503 (April 30, 2009);

         3. Letter of Larry Echo Hawk, Assistant Secretary--Indian 
        Affairs, United States Department of the Interior, to Ned 
        Norris Jr., Chairman, Tohono O'odham Nation (July 23, 2010);

         4. Gila River Indian Community v. United States, 776 F.Supp.2d 
        977 (2011); Tohono O'odham Nation v. City of Glendale, 253 P.3d 
        632 (Ariz. App. 2011);

         5. Tohono O'odham Nation v. City of Glendale, 2011 WL 2650205 
        (D. Ariz. 2011);

         6. Gila River Indian Community v. United States, 729 F.3d 1139 
        (9th Cir. 2013);

         7. Arizona et al. v. Tohono O'odham Nation, 944 F.Supp.2d 748 
        (D. Ariz. 2013);

         8. Letter of Kevin Washburn, Assistant Secretary--Indian 
        Affairs, United States Department of the Interior, to Ned 
        Norris Jr., Chairman, Tohono O'odham Nation (July 3, 2014).

The ``Shell Purchase''
    The Nation's opponents make much of the fact that the Nation 
acquired its West Valley Resort property through a wholly-owned 
separate corporate entity called Rainier Resources. But this is 
standard business practice for large land purchases--fundamentally, it 
is ``just good business sense.'' H.R. 2938, ``Gila Bend Indian 
Reservation Lands Replacement Clarification Act'': Hearing Before the 
H. Subcomm. On Indian and Alaska Native Affairs, 112 Cong. 8 (2011) 
(statement of Rep. McClintock (RCA)). Indeed, as Rep. McClintock noted, 
when Walt Disney acquired the land for his development project without 
revealing that he was the purchaser, it was in no small part to ensure 
that the price for the land would not be artificially inflated by the 
sellers. Similarly, it is common practice in the Phoenix metropolitan 
area for large land purchases to be made through holding companies. 
See, for example, local land acquisitions by the Church of Jesus Christ 
of Latter Day Saints. J. Craig Anderson, LDS purchases Maricopa land 
from builders, Arizona Republic, Nov. 2, 2008 (available at http://
www.azcentral.com/arizonarepublic/business/articles/2008/11/02/
20081102bizmormonland1102. html). The Nation's government would have 
ill-served our people if we had not taken the same precautions to 
ensure that we could acquire our land at fair market value.
    The proponents of H.R. 1410 continue to harp on how the Nation 
originally purchased the land, and continue to ignore the clear record 
of the Nation's genuine efforts to reach out to, and work with, local 
West Valley governments and civic organizations as the Nation began to 
move forward with having the land taken into trust. I respectfully 
request that the Committee take careful note of the written testimony 
provided by the West Valley cities of Glendale, Peoria, Tolleson, and 
Surprise to better understand the integrity and sincerity with which 
the Nation has worked with the local community to create an economic 
development project that will be good not just for the Tohono O'odham 
Nation, but also for our neighboring communities. It is also important 
to note that this is precisely what Congress intended in drafting the 
1986 Gila Bend Act. As the Department stated in its Decision Letter, 
the Act's terms ``protects the status quo for Arizona municipalities, 
ensuring that their incorporated lands and the zoning, taxation, and 
other regulatory schemes that they have enacted are not altered under 
the Act by the Nation.'' Decision Letter at 9.
Under the 1986 Gila Bend Act, the West Valley Reservation is a 
        ``Federal Indian Reservation For All Purposes''--Including 
        Gaming
    As I mentioned before, the 1986 Gila Bend Act requires that the 
Nation's West Valley reservation be treated as ``a Federal Indian 
Reservation for all purposes''. Pub. L. 99-503,   6(d). This means, 
among other things, that the land will have the same legal status as 
the Gila Bend Reservation land that was destroyed. The tribes that are 
trying to prevent the Nation from using its West Valley Reservation for 
gaming like to tell everyone that there is no way Congress could have 
foreseen that the Nation would use its settlement land for gaming. But 
that is not true. To begin with, Congress explicitly declared its 
intent to ``facilitate replacement of reservation lands with lands 
suitable for sustained economic use which is not principally farming.'' 
Id.  2(4) (emphasis added). As the Department of the Interior noted in 
its Decision Letter, ``Congress envisioned that Nation land could be in 
close proximity to other local governments..Reading the Gila Bend Act 
as [Gila River and Salt River] propose potentially hinders a key goal 
of the Act--promoting the Nation's economic self-sufficiency in areas 
that are not rural.'' Decision Letter at 9-10.
    The Nation's Gila Bend Act became law two years prior to the 
enactment of the Indian Gaming Regulatory Act (IGRA) and the 
restrictions on gaming on newly acquired trust lands that it imposed. 
In 1986, when the Gila Bend Act was passed, Indian gaming was legal on 
all reservation lands, and in fact, the Nation itself was operating a 
gaming business on another part of its Reservation in 1986. It is not 
plausible that in 1986 Congress would have had no inkling that the 
Nation's new reservation land could be used for gaming.
    Indeed, before IGRA was enacted in 1988, if Congress wanted to 
prevent a tribe from gaming on newly acquired lands, it had to do it 
with specific legislative language; otherwise there simply were no 
limitations on the location of Indian gaming operations. See, e.g., the 
Florida Indian Land Claims Gila Bend Act of 1982, Pub. L. 97-399 (Dec. 
31, 1982), the Ysleta del Sur Pueblo Restoration Act, Pub. L. 100-89, 
Tit. I (Aug. 18, 1987) and the Alabama and Coushatta Indian Tribes of 
Texas Restoration Act, Pub. L. 100-89 Tit. II (Aug. 18, 1987). In each 
of those pre-IGRA statutes, Congress explicitly restricted or banned 
gaming on new trust land acquired by those tribes. If Congress had 
intended to impose a similar restriction on the Nation, it would have 
had to do so explicitly in the 1986 Gila Bend Act--but it did not. Just 
as importantly, the Nation most certainly never agreed to such a 
condition, and no such condition exists in the 1987 settlement 
agreement signed by the Nation and the United States.
    Further, IGRA itself includes a carve out from its restrictions on 
gaming on newly acquired trust lands that specifically protects the 
gaming-eligibility of lands--like our West Valley Reservation--that 
have been acquired as part of a land claim settlement. IGRA Section 
20(b)(1)(B)(i) specifically states that IGRA's ban on gaming on newly 
acquired lands ``will not apply when . . . lands are taken into trust 
as part of . . . a settlement of a land claim''. It is important to 
note also that some of the same legislators who crafted the 1986 Gila 
Bend Act (Senator DeConcini and then- Congressman John McCain) also 
crafted the Indian Gaming Regulatory Act.
A Federal Court Held That 1986 Gila Bend Act Lands Can Be Used For 
        Gaming
    In 2011, the two wealthy East Valley tribes pushing for enactment 
of H.R. 1410--the Gila River Indian Community and the Salt River Pima-
Maricopa Indian Community--together with the State of Arizona filed 
suit in the U.S. District Court for the District of Arizona to 
challenge the eligibility of the Nation's West Valley land for gaming. 
On May 7 and June 25, 2013, following a lengthy and voluminous 
discovery process, the court held that the Nation's West Valley Resort 
property was acquired under the ``settlement of a land claim'' and 
``qualifies for gaming'' under both the Indian Gaming Regulatory Act 
and the tribal-state gaming compact. Arizona v. Tohono O'odham Nation, 
944 F.Supp. 2d, 748, 756 (D. Ariz. 2013).
    Contrary to the arguments made by proponents of H.R. 1410, the 
district court concluded that ``gaming on [the West Valley reservation] 
is expressly permitted by the federal statute that authorizes Indian 
gaming [IGRA],'' id. at 754 (emphasis added), and that the West Valley 
reservation falls within IGRA's ``settlement of a land claim'' 
provision, id. at 755-56. The Court explained that ``[t]he extensive 
flooding caused by the federal government's dam gave rise to claims by 
the Nation for a trespass severe enough to constitute an unlawful 
taking,'' which ``by definition interfered with the Nation's title to 
and possession of its land.'' Id. at 756. Moreover, the Gila Bend Act 
``specifically required the Nation'' to waive claims against the 
government stemming from the flooding, and ``[t]his is a classic 
settlement.'' Id. Accordingly, the West Valley reservation ``qualifies 
for gaming under IGRA.'' Id. The district court's decision was fully 
consistent with an opinion from the Department of the Interior's Office 
of the Solicitor which had confirmed as far back as 1992 that land 
acquired under the 1986 Settlement Act could be used for gaming.
A Federal Court Has Rejected The Claim That The Nation Agreed Not To 
        Game In The Phoenix Area
    In its decision, the district court also rejected on the merits 
plaintiffs' claim that the tribalstate gaming compact barred the Nation 
from gaming on its West Valley reservation and their alternative claim 
that--even if the compact did not reflect it--the Nation had separately 
agreed not to game in the Phoenix area.
    During the litigation, the Nation provided plaintiffs, including 
Gila River and Salt River, with voluminous discovery--requiring the 
Nation to expend enormous time and resources--into all aspects of the 
``negotiation of the Compact, the parties' intent and understanding, 
and the Proposition 202 campaign'' leading to the voters' endorsement 
of the compact. Arizona v. Tohono O'odham Nation, 944 F. Supp. 2d at 
761. The district court carefully reviewed all the evidence plaintiffs 
submitted and held that there was no way that a supposed promise not to 
game in Phoenix would have been omitted from the compact. To the 
contrary, the district court concluded that, even taking all of 
plaintiffs' evidence into account, the language of the tribal-state 
gaming compact simply was not reasonably susceptible to plaintiffs' 
interpretation. Indeed, plaintiffs' interpretation of the compact was 
``entirely unreasonable'': ``[N]o reasonable reading of the Compact 
could lead a person to conclude that it prohibited new casinos in the 
Phoenix area.'' Id. at 768. The court further found that the Nation's 
plans do not violate any covenants of ``good faith and fair dealing.'' 
Id.
    Gila River and Salt River tried to backstop their IGRA and tribal-
state compact arguments by also claiming that the Nation made a back-
room, side-bar promise--a ``gentlemen's agreement''--that it would not 
conduct gaming in the greater Phoenix area. The district court soundly 
rejected that argument as well--and not simply on sovereign immunity 
grounds as opponents like to claim. Most devastating to Gila River and 
Salt River's arguments was that section 25 of the very Compact that 
each Arizona tribe individually signed with the State explicitly 
provides that ``This Compact contains the entire agreement of the 
parties with respect to the matters covered by this Compact and no 
other statement, agreement, or promise made by any party, officer, or 
agent of any party shall be valid or binding.'' (emphasis added). In 
other words, the parties agreed in the compact that the words of the 
compact would trump any supposed ``side-bar'' promises and that such 
promises would have no effect. Id. at 770-74. Accordingly, because 
``[t]he fully integrated compact discharges any unwritten 
understandings,'' Id. at 774, plaintiffs' claims seeking to enforce a 
promise that is not in the compact were foreclosed on their merits. 
There is no basis whatsoever for Congress to overturn the district 
court's carefully considered conclusions at the behest of the losing 
litigants.
    What makes Plaintiffs' litigation claims even more disturbing is 
that in the evidentiary discovery which took place as the result of 
their lawsuit, it became clear that representatives of the Gila River 
Indian Community, the Salt River Pima Maricopa Indian Community, and 
the State all were aware of the Nation's rights to conduct gaming on 
its settlement lands during the negotiations that led up to the signing 
of the 2003 gaming compacts. Most notably, during a July 15 1992 
meeting, the Nation explicitly informed gaming negotiators for the 
State of its position that land acquired under the 1986 Gila Bend Act 
would be eligible for gaming. These officials did not object; however, 
and as the district court noted, the Nation presented evidence that, 
during later compact negotiations, ``some State legislators attempted 
to . . . exclude all gaming on after-acquired lands precisely to avoid 
gaming on noncontiguous reservation land such as the [Nation's] 
Glendale-area land.'' Id. at 767. Later, during the mid-1990s, a 
representative of the Nation similarly informed the former president of 
the Salt River Pima-Maricopa Indian Community (and key 2002 compact 
negotiator) of the 1986 Gila Bend Act and the Nation's right to conduct 
gaming on land acquired under the Nation's settlement act. Arizona et 
al. v. Tohono O'odham Nation, CV11-0296-PHX-DGC, Antone Dep. at 76 (5/
24/12). And in 2001, the Governor of the Gila River Indian Community 
and one of the Gila River Indian Community's compact negotiators were 
presented with a copy of a tribal council resolution from the Nation 
describing the Nation's rights under this legislation. Resolution No. 
01-031 (2001).
Interior Opposes H.R. 1410, and it Opposed Predecessor Bill H.R. 2938
    In hearings before the House Natural Resources Committee, the 
Department of the Interior twice testified that the Nation's proposed 
development is lawful under IGRA. On October 4, 2011 the Department 
testified on H.R. 2938, the predecessor bill to H.R. 1410, as follows:

        The Department opposes H.R. 2938.

         Congress was clear when it originally enacted the Gila Bend 
        Act in 1986, where it stated that replacement lands ``shall be 
        deemed to be a Federal Indian Reservation for all purposes.'' 
        By this language, Congress intended that the Nation shall be 
        permitted to use replacement lands as any other tribe would use 
        its own reservation trust lands.

         H.R. 2938 could also alter established law that prohibits 
        gaming, authorized under the Indian Gaming Regulatory Act 
        (IGRA), on lands acquired by the Secretary into trust for the 
        benefit of an Indian tribe after October 17, 1988, except in 
        certain circumstances. The effect of this legislation would be 
        to add a tribe-specific and site-specific limitation to IGRA's 
        prohibition. The process for determining whether lands qualify 
        for an exception to this prohibition is firmly established.

    Testimony of Paula Hart, Director, Office of Indian Gaming, United 
States Department of the Interior, Before the Subcommittee on Indian 
and Alaska Native Affairs, Committee on Natural Resources, U.S. House 
of Representatives (October 4, 2011) (emphasis added). Following the 
introduction of H.R. 1410 in the current Congress, the Department again 
testified in opposition to the bill, noting that it ``has a similar 
effect'' as H.R. 2938:

         H.R. 1410, would negatively impact the Nation's ``all 
        purposes'' use of selected lands under the Gila Bend [1986 
        Settlement] Act by limiting the Nation's ability to conduct 
        Class II and Class III gaming on such selected lands.

         H.R. 1410 would specifically impact the Gila Bend [1986 
        Settlement] Act by imposing additional restrictions beyond 
        those agreed upon by the United States and the Tohono O'odham 
        Nation 25 years ago. The Department cannot support legislation 
        that specifically impacts an agreement so long after the fact.

    Testimony of Michael Black, Director, Bureau of Indian Affairs, 
United States Department of the Interior, Before the Subcommittee on 
Indian and Alaska Native Affairs, Committee on Natural Resources, U.S. 
House of Representatives (May 16, 2013).
    In sum, the Department of the Interior consistently has recognized 
that H.R. 1410, like its predecessor H.R. 2938, contravenes the 1986 
Gila Bend Act's (and the 1987 Settlement Agreement's) express terms, 
which require the United States to hold in trust and treat as 
reservation land ``for all purposes'' the Nation's West Valley 
Reservation land.
The Nation's Takings and Breach of Trust Claims Against the United 
        States if H.R. 1410 is Enacted
    Fifth Amendment Takings Claim. The United States Constitution 
provides that private property may not be ``taken for public use, 
without just compensation.'' See, U.S. Const., amend. V; Penn Central 
Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). H.R. 1410 
would take away the Nation's court-confirmed right to use its West 
Valley Reservation for gaming related economic development. See, Forest 
County Potawatomi Cmty. of Wis. v. Doyle, 828 F. Supp. 1401, 1408 (W.D. 
Wis. 1993) (Indian tribe had a property interest in the right to game 
under its Tribal-State compact). By interfering with the Nation's 
investment-backed expectations that it can conduct gaming under its 
tribal-state compact and thereby causing substantial economic harm to 
the Nation, H.R. 1410 would qualify as a taking requiring just 
compensation. Enactment of H.R. 1410 exposes taxpayers to liability for 
substantial damages.
    Breach of Contract. The Nation's 1986 Gila Bend Act provided that, 
in return for waiving its claims against the United States and giving 
up title to its land and water rights on the Gila Bend Reservation, the 
Nation could acquire replacement lands in unincorporated Maricopa, 
Pima, or Pinal Counties that would be treated as a reservation ``for 
all purposes,'' including gaming. In 1987, the Nation entered into a 
settlement agreement with the United States in which it did indeed 
relinquish its claims and its land and water rights in consideration 
for the United States' promises in the 1986 Gila Bend Act. H.R. 1410 
breaches that agreement. It is settled law that when the United States 
enters into a contract, its rights and duties under the contract are 
governed by the same law applicable to contracts between private 
individuals. United States v. Winstar Corp., 518 U.S. 839, 895 (1996). 
Accordingly, if H.R. 1410 is enacted into law, the Nation can sue the 
United States for breach of this 1987 agreement. What is more, damages 
for this breach would likely be substantial, given that the lost future 
profits from the Nation's planned gaming facility during the term of 
the compact would amount to hundreds of millions of dollars, if not 
more.
The Nation is a Large Tribe with an Impoverished Membership
    The Nation has more than 32,000 members, many of whom live in 
remote and isolated areas on the Nation's reservation in southern 
Arizona. Because of our location, economic development and self-
sufficiency have been, and continue to be, an ongoing struggle. In 
addition, the Nation's main reservation borders 75 miles of the 
international boundary with Mexico, which creates significant 
additional expense for the Nation in dealing with border-related 
security, illegal immigration and drug trafficking--expenses that are 
unique to the Nation, exceed $ 3 million annually, and are not 
reimbursed by the federal government.
    In 2009, although it was not required, the Nation submitted to 
Interior with its West Valley land fee-to-trust application a Report on 
the Nation's significant unmet economic needs entitled ``The State of 
the Tohono O'odham Nation: a Review of Socioeconomic Conditions and 
Change by the Taylor Policy Group.'' As noted in the Taylor Report, 
while the Nation's existing gaming operations have had some positive 
effects for the Nation, providing employment and additional services 
and programs for members funded by gaming revenue, given the size of 
the Nation's membership, the Nation's needs are still significantly 
underserved. The Report, as well as more recent census data, shows very 
clearly that the Nation continues to lag far behind both non-Indian 
populations and other Arizona tribes in terms of income, life 
expectancy, education, quality housing, and stable family households. 
For example, the average income per capita for members on the Nation is 
a little over $8,000, far behind that of average Americans (less than a 
third of the average American income), and well below the average 
incomes of other Indians in Arizona and across the United States. 
Forty-six percent of the Nation's families live below the poverty line, 
and 31 percent live in overcrowded (more than one occupant per room) 
homes. Rates of violent crime are high and continue to increase. Forty-
four percent of the Nation's children drop out before completing high 
school; only about fourteen percent of the Nation's members have more 
than a ninth-grade education, and only eight percent have an 
associate's degree or higher.
    In short, we continue to face great challenges in achieving 
economic self-sufficiency, and as federal grants and funding available 
to Tribal nations continue to shrink, the challenges only increase. We 
need a way to provide for our government and our people, without 
relying on the federal government. The West Valley project is a major 
component of our strategy for achieving economic independence, which 
also will benefit the surrounding communities.
The Assault on the Nation Must End
    This is the third time in five years I have had to testify before 
Congress in defense of the Nation's right to have its West Valley 
property taken into trust and its right to use that land for gaming-
related economic development. The Nation's right is based on the 
promises the United States made in the 1986 Gila Bend Act and in the 
1987 Settlement Agreement. The Nation's right is based on the 
commitments the State made to the Nation in the arms' length 
negotiations which led to our tribal-state gaming compact. The Nation's 
right is based on the clear provisions of the Indian Gaming Regulatory 
Act. And the Nation's right is based on the United States' fundamental 
and solemn obligation to act in good faith, as our trustee, to 
implement these laws as they are written.
    The Nation is respectful of the rights of tribal and state 
governments to have differing views of the law, and of all parties' 
right to access the federal courts to ensure that the laws are being 
properly implemented. At every juncture during the five and a half 
years since the Nation announced its plans, the Nation has done 
everything within its power to ensure that it has complied with the 
letter of every applicable law. The Nation has consistently articulated 
its support for and faith in the judicial process, and it has 
gracefully tolerated answering every allegation, no matter how 
ridiculous or how offensive, in every lawsuit and in every 
congressional hearing.
    But with all due respect, the millions and millions of dollars the 
Nation has been forced to spend to patiently defend its rights would 
instead have been better spent to build houses for our elderly, pay for 
college tuition for our children, and bolster our Head Start programs. 
If two wealthy East Valley tribes had not embarked on this convoluted 
market-protection campaign, the Nation already would be employing 
thousands of people from the local community and from the Nation, and 
already would be generating revenue that could be deployed to assist 
the people of San Lucy Village and the rest of the Nation's membership.
    Chairman Tester, Vice Chairman Barrasso, and Honorable Members of 
the Committee, the Nation is begging you once and for all to put an end 
to the self-dealing, mean-spirited, multi-million dollar lobbying 
campaign against the Nation by bringing an end to any further 
consideration of this monstrous piece of nineteenth-century throw back 
legislation. We ask that you see this legislation for what it is--the 
first time in the modern era in which Congress would unilaterally 
renege on the solemn promises made by the United States in an Indian 
land and water rights settlement.
    My people suffered a real and devastating harm when our Gila Bend 
Reservation was destroyed. We are asking you to help us, finally, be 
able to close this chapter of our history with the United States, and 
to allow us to move forward to heal those wounds and help our people, 
as we have a right to do under current law, and as the United States 
has a moral obligation to help us do.
    I thank you for your time today. The Nation is happy to answer any 
questions.

    The Chairman. Thank you for your testimony. I want to thank 
you all for your testimony. I can feel the emotion up here. So 
I would just ask, I am going to ask two questions. I am going 
to ask one of Diane and ask one of Ned.
    Number one, Diane, this question, you just heard Chairman 
Norris say that this would be the first time that there would 
be unilateral reneging on a promise. You are Native American. I 
want to know what your thoughts are on that statement.
    Ms. Enos. It is ironic that the Tohono O'odham talks about 
reneging on a promise. Because that is what they did when they 
sat down with us all those days and years of working with us. 
The promises that they violated, there was first an agreement 
in principle where we all signed a document agreeing to put our 
trust in each other, recognizing the sovereignty of each tribe 
but yet also requiring each tribe that signed that document, if 
you have an interest that is different from the group, the 
coalition of 17 tribes, you must tell us.
    They didn't tell us. The real tragedy here today, Senator 
Tester, is all of this could have been avoided. All the 
millions that Chairman Norris talks about, all the times we 
have to travel and all these tribal leaders here, these city 
leaders that are having to come here to lobby for help, all of 
this could have been avoided if they had just told us during 
those negotiations, if they had just told us what their 
intentions were instead of doing this behind closed doors and 
keeping it secret. Not only from tribes, but the governor and 
the voters of Arizona. All of this could have been avoided. As 
a Native American, you asked me that.
    The Chairman. Just to clarify, if, if, if it goes the 
Tohono O'odham's way, you do not believe that this would have 
negative impacts on Native Americans moving forward?
    Ms. Enos. The State will open up to statewide gaming, as I 
said in my testimony. They are waiting. They are looking.
    The Chairman. Chairman Norris, claims have been made that 
the Tohono O'odham promised not to open up a facility when 202 
was being debated and sold and voted upon. Can you tell me if 
that is true or false?
    Mr. Norris. Mr. Chairman, thank you for the question. We 
are not here to relitigate the arguments that the opposition 
has already raised in front of a Federal judge. The Federal 
court has already ruled on every single legal challenge that 
the opposition has raised on this issue. The Federal courts 
have already ruled that there were no promises made. The 
Federal courts have already ruled that there was never any 
agreement. The Federal courts have already ruled that we will 
not violate the current compact. And many other decisions as 
well.
    The Chairman. All right. And just to recap, Mayor Weiers, 
you are opposed to the gaming that is going to happen in your 
city, but the city council voted four to three to support the 
gaming. Is that accurate?
    Mr. Weiers. That is accurate in the sense, Mr. Chairman, 
the fact that our council has been split on this issue for 
years. And just recently, one council member switched his vote. 
I guess my point I would like to make is, should one person 
make a difference for the entire State and affect all the 
Native American tribes we have in Arizona. I think not.
    The Chairman. We thank you.
    And I just want to thank you for bringing this issue 
forward. It is very complex. I will tell you--excuse me for 
just a second--I am sitting here listening to the arguments 
made vacillating back and forth as you make the arguments. It 
is not as clear-cut, as Senator McCain said when this thing 
started, some of the most complex issues are issues that deal 
with Native Americans. If you consider the history and where we 
have been and where we are going, and as we talk about language 
and we talk about taking care of folks with education and 
housing and police protection and water resources, these are 
important issues if you are living it. And you guys are living 
it. And we have a lot of leaders in this audience that are 
living it. I can just tell you, it is very difficult.
    With that, we will allow you to say something. Go ahead.
    Ms. Enos. Contrary to what Chairman Norris has asserted, 
the court had to dismiss the charges that the State of Arizona 
filed against Tohono O'odham of fraud, misrepresentation and 
promissory estoppel because they raised sovereign immunity 
defense.
    The Chairman. Okay. What we need to do as a Committee is do 
our due diligence on all these issues.
    So we thank you all. Getting back to the issue of Indian 
gaming, it has done some really good stuff for the folks who 
have been able to take advantage of it. And for the folks who 
can't take advantage of it, we have to figure out ways that we 
can allow them to take advantage of that or other opportunities 
to get some resources to be able to deal with the issues that 
are so real in Indian Country.
    This hearing will remain open for two weeks. I would 
encourage all the stakeholders, and there were a lot of them 
that stood up here a minute ago, those folks and others, to 
submit written statements for the records. Because these are 
important issues as we move forward and determine a path for 
Indian gaming.
    This hearing is adjourned. Thank you all.
    [Whereupon, at 5:34 p.m., the hearing was adjourned.]
                            A P P E N D I X

Prepared Statement of Hon. Sherry J. Counts, Chairwoman, Hualapai Tribe
    On behalf of the Hualapai Tribe, I thank Chairman Tester, Vice-
Chairman Barrasso and the Senate Committee on Indian Affairs for 
hosting this oversight hearing on Indian Gaming. I am Sherry J. Counts, 
Chairwoman of the Hualapai Tribe.
    Before we get into the details of Indian gaming in Arizona, I'd 
like to share some details about the Hualapai people in Arizona. We are 
a federally recognized tribe and our lands are located in rural 
northwestern Arizona along the Grand Canyon and the Colorado River 
between Kingman, Arizona and Seligman, Arizona on Route 66. Our tribal 
membership includes about 2,300 members with approximately 1,300 
residing within the Hualapai Reservation. The Hualapai are historically 
hunters and gatherers. Our history and includes a dramatic alteration 
of our lifestyle due to a period of forceful removal from our ancestral 
lands that ended with our return to reduced land base altered by gold 
seekers, an influx of ranchers and, later the construction of the 
railroad through our land.
    Despite our remote location, tourism, ranching and arts and crafts 
drive our local economy. We use our geographical location to offer 
hunting and river rafting, along with tours of the Grand Canyon. We 
receive some federal funding and gaming has provided us additional 
revenue to supplant dwindling funding.
    We do not operate our own casino but have an executed gaming 
compact with the state of Arizona. Early in the Arizona's Indian gaming 
growth period, the Hualapai Tribe did operate a small casino; 
unfortunately we were forced to cease operations soon after opening. 
The uniqueness and remoteness of our location could not support a 
traditional gaming establishment. We could not compete with the 
amenities of nearby Nevada gaming establishments and individuals 
visiting our community do not seek gambling adventures, rather they 
come to absorb the natural beauty of the Grand Canyon, river rafting or 
hunting.
    Despite our unsuccessful attempt at gaming in rural northwestern 
Arizona, gaming in the metropolitan areas of Phoenix and Tucson 
thrived. Casino growth in the metropolitan areas could not keep up with 
demand. The tribes and the Governor's office worked on a negotiated 
compact that included limits on facilities, limits numbers of machines 
for each tribe and limits on the number of machines per facility. 
Despite all the negotiations the decision to implement these compacts 
eventually became a decision of Arizona voters. Ultimately, the voters 
approved the negotiated terms and the result was limited gaming with 
tribes the exclusive providers of gaming in Arizona. Gaming was 
intentionally limited in the number of facilities per tribe and growth 
was intentionally tied to the growth in Arizona's population. This 
responsible growth was designed to prevent an explosion of casinos in 
Arizona and a market flood. For example and more specifically, when the 
tribes in the metropolitan areas were in need of additional machines, 
the solution was to allow the tribes in remote locations, like Hualapai 
to lease their machine allocations to the tribes with facilities that 
had the demand for the slot machines. It was and remains, for the most 
part, a win-win solution. Tribes wanting additional machines were able 
to increase the number of machines in their establishments and tribes 
without casino operations and in geographical locations that could not 
support a casino establishment were able to lease their machine 
allocation to realize some revenue. The Hualpai are one of five Arizona 
tribes who lease machines to other tribes. These tribes are commonly 
referred to as the ``non-gaming tribes''. Although the revenue we 
receive is less than the revenue earned by the tribes operating the 
machines, we do not bear the same financial risk as the tribes 
operating casinos.
    This system of leasing worked well for at implementation in 2003 
and for the first population increase in 2008. However, as expected, 
Arizona gaming has arrived at the point where tribes with casinos have 
reached the maximum number of machines allowed in their respective 
facilities under the Arizona-Tribal gaming compacts; eliminating the 
need to lease additional machines from non-gaming tribes. Now, the non-
gaming tribes are in the position of being phased out of the market. 
Once our existing lease agreements expire or if terminated by the 
leasing tribe, the Hualapai Tribe will no longer receive gaming machine 
lease proceeds, a substantial loss of revenue for our community.
    Gaming and our partnerships have been beneficial to the Hualapai 
people. Our gaming revenues are used for basic subsistence needs for 
our members: infrastructure development, buildings for our tribal 
departments such as a Cultural Center, Head Start, Health Building, 
Boys & Girls Club and a Youth Detention Center. Gaming revenue helps us 
provide our members with emergency food and shelter assistance, utility 
payments, vision care, and medical assistance when Indian Health 
Service is insufficient, and to provide basic necessities for our 
elders, including the simple act of providing wood to keep homes warm 
in the winter. We've utilized our gaming revenue to adjust to the cuts 
to federal funding we have received in the past. Planning for the 
future, we also set aside a portion of our gaming income for 
scholarships to assist tribal members pursuing higher educational 
opportunities.
    Despite our successes in Arizona, we currently face challenges. In 
Arizona, tribal nations are the exclusive providers of gaming, 
excluding horse and dog racing and some minor forms of gaming such as 
the state lottery and charitable bingo. Each and every year, the 
exclusivity to provide gaming in Arizona is challenged, either by 
commercial gaming interests or by Racino enthusiasts who seem to look 
to slot machines to save a diminishing horse and dog racing industry. 
We generally work our way through these challenges every year through 
our shared efforts and membership in the Arizona Indian Gaming 
Association. Unfortunately, there is one issue that stands as a 
significant challenge in Arizona. The effects are current and will 
reach beyond the next 25 years of gaming. The matter has the potential 
to change gaming in Arizona and perhaps Indian gaming across the 
nation. I am referring to the West Valley Resort, a destination style 
gaming facility proposed to be constructed by the Tohono O'odham 
Nation. While the Hualapai Tribe generally does not object to economic 
development opportunities for any tribal community, the proposed West 
Valley Resort is troubling for multiple reasons. First, as mentioned 
previously, when the tribes in Arizona could not finalize a compact 
with the Arizona Governor's Office we took the issue of gaming to the 
voters. The tribes made several concessions to assure that gaming 
growth in Arizona is limited and responsible. Every tribe, including 
the Hualapai Tribe agreed to relinquish at least one gaming facility 
allocation. Everyone agreed except the Tohono O'odham Nation. We 
promised the people of Arizona that the number of casinos in the 
Phoenix metropolitan area would be limited in number. What we didn't 
know is at the time we were working together for the common goal of 
developing a gaming compact to benefit all Arizona tribes, the Tohono 
O'odham Nation, although at the same negotiating table was, at the same 
time, planning to construct another other gaming facility in the 
Phoenix metropolitan area. In our opinion, the West Valley Resort would 
be contrary to the limit on casinos in the Phoenix metropolitan area. 
Thus, violating our promise to the voters of Arizona. The Hualapai 
Tribe understands the parcel of Glendale land purchased by the Tohono 
O'odham must be used for economic development purposes by virtue of the 
restrictions outlined in a settlement act and the Hualapai Tribe has no 
objection to use of the land for economic development generally. 
However, the Hualapai Tribe objects to use of the land for gaming 
purposes. It is our concern that use of this land for a casino, as 
planned will disrupt the delicate balance of Arizona Indian gaming as 
represented in our gaming compacts. While there are issues that need 
resolution within the compact, gaming in Arizona is generally a win-win 
for everyone. The Hualapai Tribe already faces the challenge of being 
pushed from the market due to a decline in the market for leasing 
machines and the Tohono O'odham Nation project potentially escalates 
our dismissal from gaming.
    Second, the land in the Glendale area, which will become trust land 
for the Tohono O'odham Nation is not their ancestral land. Rather, the 
land is the ancestral land of the Salt River Pima-Maricopa and the Gila 
River Indian Community. It is extremely difficult for the Hualapai to 
watch the ancestral lands of one tribe be declared the trust lands of 
another tribe that has virtually no ties to the area. It is counter-
intuitive. Further, the language of the settlement act opens the door 
for the Tohono O'odham Nation to purchase other parcels in three 
central Arizona counties, perhaps not ancestral lands for the Tohono 
O'odham and construct another casino. It sets a dangerous precedent and 
takes Indian gaming down a slippery slope.
    Finally, although the land will be trust land, there is concern 
over the public perception regarding the resort and its impact on the 
off-reservation casino debate. There is much criticism regarding 
alleged, ``reservation shopping''; tribes previously deemed 
``terminated'' seeking federal recognition, looking for suitable 
property, an application to place land into trust and the development 
of a casino on the property. If the West Valley Resort is constructed, 
due to the intricacies of the situation, the entire situation lends 
credibility to the complaints about reservation shopping, which, in 
turn, has the potential to negatively impact tribes across the country.
    Arizona tribes will be forced to discuss these issues in great 
detail while working on the next gaming compacts. We will need to amend 
the structure of our gaming so that it continues to be a win-win for 
every tribe with a gaming compact as well as the citizens of Arizona. I 
remain hopeful that we will do this and continue to move into the 
future.
    Looking forward toward the next 25 years will require tribes to be 
cognizant of changes in technology, the industry and the demographics 
of the client base. Tribes will need to be flexible and aware of 
changes in technology. More specifically, we will need to have a 
detailed discussion regarding Internet or on-line gaming. Although 
Internet gaming is illegal in Arizona and prohibited by our current 
Tribal-State gaming compacts, this issue will need to be thoroughly 
vetted, analyzed and reviewed. There are jurisdictions pursuing this 
option and who will continue to pursue this option, thus changing the 
market demographics completely. While Internet or on-line gaming may 
present opportunities for tribes in rural locations such as the 
Hualapai to participate in the gaming industry in a different way, 
there are so many variables that need to be considered, including, 
complex issues relating to jurisdiction and regulation.
    The continued attempts by the commercial gaming industry and the 
racing industry to merge as ``racinos'' using a ``something for all'' 
appeal needs further evaluation. At a minimum, the issue deserves a 
detailed evaluation of the proponents' claims that the gaming industry 
will breathe new life into the racing industry.
    More and more jurisdictions look to gaming as a fail-safe way to 
raise revenue in a time of shrinking economies. The American Gaming 
Association's annual report brags on the increased revenue in the areas 
of the country with commercial gaming enterprises. The American Gaming 
Association also claims that only approximately 8 percent of gaming 
revenues are retained as profit for casino operators with the remainder 
invested in the local communities in the form of taxes, jobs and other 
benefits. While jurisdictions that are new to gaming enjoy the benefits 
of an influx of new money, there are other jurisdictions struggling 
with a loss of revenue as gamblers take their money to new facilities. 
Essentially, the same dollar is spent, just in different gaming 
establishments. As the Hualapai discovered, gaming is not a fail-safe 
industry. It is not a ``build it and they will come'' environment. 
Rather, like every other industry, there are many factors to consider. 
Gaming can no longer be considered as the answer to struggling budgets, 
regardless of the jurisdiction.
    I look forward to working with Arizona tribes and Indian country 
for the continued development and protection of our gaming industry. 
Indian gaming supports the development, subsistence and growth of 
Indian communities and tribal people. I ask that you keep these aspects 
in mind when evaluating Indian gaming generally. There are details that 
need work, but the overall industry has been and continues to be 
beneficial to our communities.
    On behalf of the Hualapai People, I wish to thank the Committee for 
allowing me to share the Hualapai Tribe's position on this issue.
                                 ______
                                 
  Prepared Statement of Matthew Cate, Executive Director, California 
                     State Association of Counties
    Dear Chairman Tester and Vice Chairman Barrasso:
    On behalf of the California State Association of Counties (CSAC), I 
am pleased to submit this statement for the record in conjunction with 
the Committee's July 23, 2014 oversight hearing on Indian gaming. 
Founded in 1895, CSAC is the unified voice on behalf of all 58 of 
California's counties. The primary purpose of the association is to 
represent county government before the California Legislature, 
administrative agencies, and the federal government.
    At the outset, I would like to express CSAC's gratitude for having 
had the recent opportunity to appear before your Committee to provide 
our perspective on the significance of the U.S. Supreme Court's 
Carcieri v. Salazar decision and to convey the need for Congress to 
approve comprehensive reforms in the fee-to-trust process. 
Incidentally, we believe that these critically important issues should 
be a part of the Committee's discussion as it relates to the future of 
Indian gaming.
    As CSAC has consistently stated in previous congressional 
testimony, statements, and correspondence, our association supports the 
rights of Indian tribes to self-governance and recognizes the need for 
tribes to preserve their heritage and to pursue economic self-reliance. 
At the same time, CSAC believes that existing federal laws and 
regulations fail to adequately serve the interests of tribes and local 
governments alike. In particular, the Department of the Interior's fee-
to-trust process, as authorized by Section 5 of the Indian 
Reorganization Act (IRA), lacks adequate standards and has led to 
significant, and in many cases, unnecessary conflict and mutual 
distrust of the federal decisionmaking system for trust lands.
    In keeping with our association's goal of continuing to serve as a 
constructive voice in the Indian affairs policy arena, we are pleased 
to provide you with our views and recommendations on Indian gaming and 
related issues. As always, we stand ready to work with the Committee in 
an effort to promote and advance policies that balance the needs and 
objectives of county and tribal governments.
Indian Gaming in California--Past, Present and Future
    The subject matter of the Committee's hearing, entitled ``Indian 
Gaming; the Next 25 Years,'' is of unique importance to California and 
its 58 counties. With more federally recognized tribes and Indian 
gaming establishments than any other state, California--along with its 
local governments and communities--is disproportionately impacted by 
tribal gaming. As the industry grows, California will continue to face 
significant policy challenges, making it essential for Congress to play 
an active oversight role in this important matter.
    The Past--Even before the 1988 enactment of the Indian Gaming 
Regulatory Act (IGRA), counties in California were experiencing impacts 
in rural areas from Indian gaming facilities. These establishments were 
places where bingo was the primary commercial enterprise in support of 
tribal economic self-reliance. The impacts on local communities were 
not significant in large part because the facilities where Indian bingo 
was played were modest in size and did not attract large numbers of 
patrons.
    Following the enactment of IGRA, however, the impacts to counties 
from Indian gaming establishments increased with the arrival of larger 
facilities. Even so, the impacts to local communities from these gaming 
operations were generally manageable, except in certain instances.
    Beginning with the 1999 signing of the State's Tribal Gaming 
Compacts with 69 tribes and the passage of Propositions 5 and 1A 
(legalizing Indian gaming in California), the ensuing rapid expansion 
of tribal gaming has had profound impacts beyond the boundaries of 
reservation lands. The result has been a myriad of significant 
economic, social, environmental, health, safety, and other community 
impacts.
    The Present--Today, California has a total of 109 federally 
recognized tribes operating 71 gaming facilities. These establishments 
generate more than 25 percent of the nearly $30 billion in annual 
nationwide Indian gaming revenues.
    While some of the Tribal-State Gaming Compacts in California 
require tribes to enter into agreements with county governments 
regarding the mitigation of off-reservation impacts--as well as impose 
binding ``baseball style'' arbitration on the tribe and county if they 
cannot agree on the terms of an agreement--not all of the compacts 
adequately address the impacts of development and/or provide meaningful 
and enforceable mechanisms to prevent or mitigate impacts. In such 
cases, county governments must shoulder the burden of addressing the 
impacts associated with tribal development projects.
    The California experience has also made clear that particularly 
large casino facilities have impacts beyond the immediate jurisdiction 
in which they operate. Attracting many thousands of patrons per day, 
larger facilities in California cause traffic impacts throughout a 
local transportation system. Similarly, traffic accidents, crime, and 
other problems associated with gaming are not isolated to a casino site 
but may increase in surrounding communities.
    The Future--Both the number of Indian casinos and the revenue 
generated by California's Indian gaming industry has grown in recent 
years and is expected to continue to grow into the future. Despite what 
appears to be a relatively saturated market, a number of tribes are 
currently seeking to build off-reservation casinos or, in some cases, 
expand existing gaming facilities. While certain projects are supported 
locally, others face strong resistance, including opposition from 
county boards of supervisors.
    Moreover, and in addition to the state's 109 federally recognized 
tribes, California currently has 81 tribal groups petitioning for 
federal acknowledgment (which represents roughly one-quarter of all 
petitioners nationwide). Of these 81 petitions, 68 are active. Although 
presumably not all of the state's tribal groups will ultimately be 
successful in gaining federal recognition--nor would all likely pursue 
gaming--the sheer number of groups seeking recognition and the 
possibility of new casino operations illustrates the potential for 
Indian gaming to become even more pervasive in California.
    Of further relevance to this discussion is the Department of the 
Interior's newly proposed revisions to the Federal acknowledgment 
process (Procedures for Establishing That an American Indian Group 
Exists as an Indian Tribe, 25 CFR Part 83, BIA-2013-0007, RIN 1076-
AF18). Pursuant to the Proposed Rule, California petitioners would 
generally have a much easier path to Federal acknowledgment due to a 
series of changes in the criteria that the Department uses to evaluate 
petitions. According to a recent study, \1\ the rule would result in as 
many as 34 newly recognized Indian tribes in California and could lead 
to the development of 22 new casinos throughout the state.
---------------------------------------------------------------------------
    \1\ Michael L. Lawson, Ph.D., California Indian Petitioners and the 
Proposed Revisions of the Federal Acknowledgment Regulations (July 
2014).
---------------------------------------------------------------------------
    While the aforementioned study notes that existing casinos in 
California are largely located outside of urban areas, the tribes that 
could potentially gain recognition may be located in urbanized areas, 
including the counties of Los Angeles, Orange, San Mateo, Santa Clara, 
and Ventura. The proposed regulations also would impact acknowledgement 
petitions in coastal areas such as Monterey, San Luis Obispo, Santa 
Cruz, and San Benito, and in central and northern California counties 
such as Kern, Mariposa, Nevada, Plumas, Shasta, and Trinity.
    With over 70 gaming facilities already in operation, additional 
gaming applications pending, and the potential for the aforementioned 
rule changes to result in the recognition of new Indian tribes and the 
development of additional casinos, it is clear that California will 
continue to be heavily impacted by Indian gaming well into the future.
Current Laws and Regulations
    As previously stated, current laws, regulations, and administrative 
procedures fail to meet the legitimate needs of tribes and counties. In 
particular, the Bureau of Indian Affairs' fee-to-trust process--as 
authorized by the IRA and governed by the Department of the Interior's 
Part 151 regulations--is flawed and in need of a comprehensive 
overhaul.
    In CSAC's view, the fundamental problem with the trust land 
acquisition process--for gaming or non-gaming-related purposes--is that 
Congress has not set standards under the IRA by which any delegated 
trust land authority would be applied by BIA. Section 5 of the Act 
reads as follows: ``The Secretary of the Interior is hereby authorized 
in his discretion, to acquire [by various means] any interest in lands, 
water rights, or surface rights to lands, within or without 
reservations . . . for the purpose of providing land to Indians.'' 25 
U.S.C.  465.
    The aforementioned general and undefined congressional guidance has 
resulted in a trust land process that fails to meaningfully include 
legitimate interests, provide adequate transparency to the public, or 
demonstrate fundamental balance in trust land decisions. The 
unsatisfactory process has created significant controversy, serious 
conflicts between tribes and states, counties and local governments--
including litigation costly to all parties--and broad distrust of the 
fairness of the system.
    One of CSAC's central concerns with the current process is the 
severely limited role that state and local governments play. The 
implications of losing jurisdiction over local lands are very 
significant, including the loss of tax base, loss of planning and 
zoning authority, and the loss of environmental and other regulatory 
power. Yet, state, county and local governments are afforded limited, 
and often late, notice of a pending trust land application, and, under 
the current regulations, are asked to provide comments on two narrow 
issues only: (1) potential jurisdictional conflicts; and, (2) loss of 
tax revenues.
    Moreover, the notice that local governments receive typically does 
not include the actual fee-to-trust application and often does not 
indicate how the applicant tribe intends to use the land. Further, in 
some cases, tribes have proposed a trust acquisition without 
identifying a use for the land; in other cases, tribes have identified 
a non-intensive, mundane use, only to change the use to heavy economic 
development, such as gaming or energy projects, soon after the land is 
acquired in trust.
    Local governments also are often forced to resort to Freedom of 
Information Act (FOIA) requests to ascertain if a petition for an 
Indian lands determination--a key step in the process for a parcel of 
land to qualify for gaming--has been filed in their jurisdiction. 
Because many tribal land acquisitions ultimately will be used for 
economic development purposes--including gaming activities--there are 
often significant unmitigated impacts to the surrounding community, 
including environmental and economic impacts. Unfortunately, current 
law does not provide any incentive for tribes and affected local 
governments to enter into agreements for the mitigation of off-
reservation impacts.
    While the Department of the Interior understands the increased 
impacts and conflicts inherent in recent trust land decisions, it has 
not crafted regulations that strike a reasonable balance between tribes 
seeking new trust lands and the states and local governments 
experiencing unacceptable impacts. Indeed, the current notification 
process embodied in the Part 151 regulations is, in practice, 
insufficient and falls far short of providing local governments with 
the level of detail needed to adequately respond to proposed trust land 
acquisitions. Accordingly, a legislative effort is necessary to meet 
the fundamental interests of both tribes and local governments.
    While the IRA provides the Secretary of the Interior with the 
authority to take land into trust for the benefit of Indian tribes, 
IGRA provides the framework for tribes to conduct gaming on trust land. 
Under IGRA, casino-style gaming is authorized on lands located within 
or contiguous to the boundaries of a tribe's reservation as it existed 
on October 17, 1988 (the date of IGRA's enactment).
    Although IGRA prohibits gaming on land taken into trust after the 
aforementioned date, the Act authorizes several notable exceptions to 
the prohibition, including cases in which the Secretary determines that 
gaming on newly acquired lands would be in the best interest of the 
tribe--as well as not detrimental to the surrounding community--and the 
governor concurs in the Secretary's determination (IGRA's two-part 
test). Additionally, post-1988 gaming acquisitions are allowed if the 
land is part of the initial reservation of a newly acknowledged tribe, 
or in cases in which a tribe is restored to federal recognition.
    In California, many tribes pursue trust land under IGRA's 
``restored land'' exception. This allows a tribe to circumvent the 
Act's two-part determination process, which empowers a state to manage 
the location and growth of gaming. The opportunities under IGRA also 
have been a primary factor driving many tribal groups in California to 
seek federal recognition.
    Further, tribes have more aggressively sought lands that are of 
substantially greater value to state and local governments, even when 
distant from the tribe's existing reservation, because such locations 
are far more marketable for various economic purposes. The result has 
been increasing conflict between tribes and state and local 
governments.
    In California, approximately 45 applications from tribes to take 
land into trust consisting of more than 10,000 acres of land have been 
submitted since 2011. California's unique cultural history and 
geography, and the fact that there are over 100 federally-recognized 
tribes in the state, contributes to the fact that no two land-into-
trust applications are alike.
The Need for Intergovernmental Agreements
    To follow are examples of tribes and counties forging cooperative 
agreements by working on a government-to-government basis on issues of 
common concern to both parties, not just gaming-related issues. These 
examples underscore the need for federal law to incentivize and 
facilitate intergovernmental cooperation.
    Examples of Successful Tribal-County Partnerships--In Yolo County, 
the Yocha Dehe Wintun Nation and the County have a strong working 
relationship and have entered into an agreement whereby the tribe 
provides mitigation payments to the County for the off-reservation 
impacts associated with the tribe's casino expansion and hotel project. 
The agreement also expressly states that a purpose of the agreement is 
to strengthen the government-to-government relationship between the 
County and the Tribe.
    In Sonoma County, an intergovernmental mitigation agreement between 
the County and the Federated Indians of the Graton Rancheria, which was 
approved by the Board of Supervisors, includes provisions for recurring 
mitigation payments to the County for law enforcement and fire and 
emergency management services, among other things. Similarly, the 
Madera County Board of Supervisors unanimously approved a comprehensive 
MOU between the County and the North Fork Rancheria to fund police, 
fire, and emergency services. The agreement also establishes new 
tribal/community foundations to invest in local charitable causes, 
education, and economic development.
    In southern California, San Diego County has a history of tribes 
working with the San Diego County Sheriff to ensure adequate law 
enforcement services in areas where casinos are operating. In addition, 
San Diego County has entered into agreements with four tribes to 
address the road impacts created by casino projects. Further, a 
comprehensive agreement was reached with the Santa Ysabel Tribe 
pursuant to the 2003 Compact with the State of California.
    Humboldt, Placer, and Colusa Counties and tribal governments have 
agreed similarly on law enforcement-related issues. Humboldt County 
also has reached agreements with tribes on a court facility/sub-
station, a library, road improvements, and on a cooperative approach to 
seeking federal assistance to increase water levels in nearby rivers.
    The agreements in each of the above counties were achieved only 
through positive and constructive discussions between tribal and county 
leaders. It was through these discussions that each government gained a 
better appreciation of the needs and concerns of the other government. 
Not only did these discussions result in enforceable agreements for 
addressing specific impacts, but enhanced respect and a renewed 
partnership also emerged, to the betterment of both governments, and 
tribal and local community members.
    Examples of Conflict--Although many successful working 
relationships have been forged between counties and tribes, CSAC 
remains concerned that many tribal development projects lead to 
significant unmitigated impacts to the surrounding community, including 
environmental and economic impacts. In fact, there are recent examples 
of tribal governments not complying with the requirements of the IGRA 
or the 1999 Compacts. In Mendocino County, a tribe built and operated a 
Class III gaming casino for years without the requisite compact between 
the tribe and the governor. In Sonoma County, a tribe demolished a 
hilltop to build and operate a tent casino that the local Fire Marshal 
determined lacked the necessary ingress and egress for fire safety.
    In San Diego County, there have been impacts to neighboring water 
wells that appear to be directly related to a tribe's construction and 
use of its water well to irrigate a newly constructed golf course 
adjoining its casino. Additionally, several other tribal casino 
projects have advanced without the tribe providing mitigation for the 
significant traffic impacts caused by those projects.
CSAC Policy Recommendations to the Committee
    CSAC's primary federal Indian gaming principle is that when tribes 
are permitted to engage in gaming activities under federal law, 
judicially enforceable agreements between counties and tribal 
governments must be in place. Such agreements should fully mitigate 
local impacts from a tribal government's business activities and fully 
identify the governmental services to be provided by the county to that 
tribe.
    When tribes reach local intergovernmental agreements to address 
jurisdiction and environmental impacts of gaming or other development, 
the tribe, local government, and surrounding community benefit. In such 
cases, tribes should have a streamlined fee-to-trust process. 
Accordingly, the federal legal framework should encourage tribes to 
reach intergovernmental agreements by reducing the threshold for 
demonstrating need when mitigation agreements are in place.
    If a tribe and jurisdictional local government fail to reach an 
agreement, federal law should require the Secretary to ensure that the 
interests of the tribe and the local government are balanced in the 
fee-to-trust process. This should be done by requiring the Secretary to 
determine, after consulting with appropriate state and local officials, 
that the proposed land acquisition would not be detrimental to the 
surrounding community. Additionally, the Secretary should be required 
to determine that tribes have taken necessary steps to ensure that 
jurisdictional conflicts and impacts have been mitigated. Once these 
requirements have been satisfied, the Secretary would be authorized to 
approve the tribe's development.
    In sum, and in light of the long-standing deficiencies in the 
Indian fee-to-trust system, we urge the Committee to do the following:

   Approve legislation that would restore the Secretary of the 
        Interior's authority to take land into trust for all Indian 
        tribes. This action would address Indian Country's long-
        standing call to fix the inequities caused by the Carcieri 
        decision. CSAC agrees that this inequity must be fixed;

    AND

   Include as part of the Carcieri fix long-overdue, 
        comprehensive reforms in the fee-to-trust process in order to 
        address the inequities and flaws in the current trust land 
        system, including provisions that incentivize local mitigation 
        agreements. This would ensure that the legitimate needs and 
        interests of both local governments and tribes are fairly 
        balanced. Likewise, any potential amendments to IGRA also 
        should provide an incentive for tribes and counties to engage 
        in government-to-government discussions.

    CSAC believes that it is essential for Congress to embrace the 
aforementioned principles as part of the same legislative package. To 
do one without the other would perpetuate an unfair and unbalanced 
system. CSAC's comprehensive fee-to-trust reform proposal seeks to 
create a trust land process that promotes and protects the interests of 
tribes and local governments.
    Thank you for considering our views regarding this very important 
matter.
                                 ______
                                 
  Prepared Statement of Hon. Ruben Balderas, President, Fort McDowell 
                             Yavapai Nation








                                 ______
                                 
  Prepared Statement of Gregory Mendoza, Governor, Gila River Indian 
                               Community
    Chairman Tester, Vice Chairman Barrasso and members of the 
Committee, I want to thank you for considering the written testimony of 
the Gila River Indian Community regarding H.R. 1410, the Keep the 
Promise Act of 2013. By prohibiting gaming on tribal lands acquired in 
trust status after April 9, 2013 within the Phoenix metropolitan area 
until January 1, 2027 this bill maintains the commitments and promises 
that were relied upon during negotiations of the current gaming 
compacts for the duration of those compacts, which begin to expire in 
late 2026. Enactment of this overwhelmingly bipartisan legislation is 
critical to protecting the existing gaming compacts and system of 
tribal gaming in Arizona. It must be clearly understood that the bill 
does not prohibit Indian gaming on the lands beyond the sunset date of 
January 1, 2027 and does not prevent lands from being taken into trust 
status for Indian tribes.
    The Arizona Republic, the largest newspaper in Arizona, summed up 
the current situation well when it indicated that support for an 
additional tribal casino in the Phoenix metropolitan area came down to 
one question: ``Just how cool are you with being lied to?'' \1\ That is 
the question that many Arizonans are contemplating as the Tohono 
O'odham Nation (TON) tries to build a casino far outside its aboriginal 
territory and within the Phoenix metropolitan area. The question is 
important because the voters of Arizona authorized a system of gaming 
in 2002 when the tribes essentially obtained a legal monopoly on gaming 
in the State, a monopoly that has benefited all Indian tribes in the 
State, gaming and non-gaming. But in return, the voters wanted to set a 
hard cap of seven casinos that would be in the Phoenix metropolitan and 
no more, which was the number of casinos in existence at that time. 
Additionally, the voters wanted certainty about the potential 
proliferation of gaming, and thought that they had achieved that 
certainty by limiting gaming to Indian tribes on Indian reservations as 
they existed at the time of their vote in 2002 and not allow casinos to 
expand into non-tribal neighborhoods, such as Glendale.
---------------------------------------------------------------------------
    \1\ Doug MacEachern, Tohono O'odhams were gaming state over casino 
all along, Arizona Republic, Apr. 2, 2013.
---------------------------------------------------------------------------
    The voters and State leadership thought that they got what they 
wanted when they supported Proposition 202 over two other gaming 
propositions on the ballot in 2002. But seven years later, in 2009, TON 
announced that it had purchased lands pursuant to a 1986 law in 
Glendale (a Phoenix suburb) and planned to build a casino on land 
located across the street from Kellis High School, a public high school 
that opened in 2004--two years after the voters approved Proposition 
202 and thought tribal gaming would be restricted to the tribal 
reservation areas that they would have been aware of at the time.
    As explained more fully below, Congress is the only entity that is 
properly suited to resolve this matter, in part because Congress 
created the situation and because the courts have been thwarted from 
being able to adjudicate the merits of the essential claims at issue.
    To be clear, no one is trying to prevent TON from acquiring 
replacement lands pursuant to the 1986 Gila Bend Indian Reservation 
Lands Replacement Act (``Gila Bend Act''), Pub. L. 99-503. \2\ However, 
TON should not be able to utilize the 1986 law to violate the 
commitments and promises relied upon during the negotiations of the 
existing gaming compacts in Arizona.
---------------------------------------------------------------------------
    \2\ The Community would prefer that TON's replacement lands be 
within the aboriginal territory of TON. In the context of remains and 
cultural resources TON has respected the aboriginal boundaries of its 
sister tribes as we have respected is aboriginal boundaries. But in the 
context of gaming that respect is clearly lacking.
---------------------------------------------------------------------------
    Contrary to the testimony of TON, H.R. 1410 does not create 
liability for the United States and does not affect pending litigation. 
Indeed, H.R. 1410 was narrowly crafted to preserve promises made during 
the negotiation of the existing tribal-state compact and to clarify 
them in a manner that is consistent with federal law but does not 
pierce TON's sovereign immunity. Furthermore, H.R. 1410 would not 
create liability for the United States or constitute an unlawful taking 
that would trigger constitutional protection because it is well within 
Congress' plenary power over Indian affairs to defend and protect the 
promises that tribes publicly make to obtain gaming. There is no Fifth 
Amendment right for tribes to violate their own promises on which other 
tribes and the State have relied. The Fifth Amendment does not curtail 
Congress's authority to protect the compacting process from broken 
promises and misrepresentations. To suggest otherwise is disingenuous.
    Instead, H.R. 1410 is about preserving the spirit of the existing 
gaming compacts, and holding tribes, including TON, to their word that 
was relied upon when negotiating the existing framework of tribal 
gaming in Arizona. Several rural and poor tribes and other Phoenix 
metropolitan area tribes support H.R. 1410, as do the Governor, State 
legislature, and numerous cities and towns in the Phoenix area.
H.R. 1410 Does Not Create Liability for the United States
    Opponents to H.R. 1410 contend that the bill would subject the 
United States to a Fifth Amendment Takings Claim. This objection is 
premised on notion that when Arizona tribes obtained IGRA compacts by 
promising not to attempt to use those compacts to locate any additional 
casinos in the Phoenix area, the Fifth Amendment somehow protects their 
right to violate that very promise. This could not be further from the 
truth. It should go without saying that Congress does not abrogate 
gaming compacts or affect a Fifth Amendment taking when it defends and 
protects the promises tribes made publicly to obtain the compacts. 
Neither gaming compacts nor the Gila Bend Act include an inherent right 
to profit from States' and tribes' detrimental reliance on a tribe's 
promises during the compacting process. Simply put, there is no Fifth 
Amendment right for tribes to commit fraud and then benefit from the 
fraud. The Fifth Amendment does not limit Congress' authority to 
preserve the integrity of IGRA's compact process from illegality.
    Nonetheless, TON argues that H.R. 1410 will give rise to a 
successful takings claim against the United States, a claim that the 
Assistant Secretary was not willing to embrace during his responses to 
the Committee's questions during the hearing. Such a claim would argue 
that H.R. 1410 constituted ``regulatory taking'' by depriving TON of an 
economic use of its land and interfering with an investment-backed 
expectation. As a threshold matter, the Fifth Amendment's Taking Clause 
generally applies to federal actions that affect Indian property rights 
formally recognized by Congress. See generally 1-5 Cohen's Handbook of 
Federal Indian Law  5.04[2][c]. However, the Supreme Court's opinion 
in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 
(1978), established a multifactor analysis for courts to consider when 
weighing a regulatory taking claim. The Penn Central test has spawned 
different categories of regulatory takings but it is highly unlikely 
that TON could successfully argue that H.R. 1410 fits into any one of 
these.
    Penn Central requires an ad hoc factual inquiry based on three 
factors: (1) ```the character of the governmental action'''; (2) 
``[t]he economic impact of the regulation on the claimant''; and (3) 
``the extent to which the regulation has interfered with distinct 
investment-backed expectations.'' Lingle v. Chevron U.S.A. Inc., 544 
U.S. 538-539 (alteration in original (quoting Penn Central, 438 U.S. at 
124). Mindful of Justice Holmes's oft-cited admonition that 
``[g]overnment hardly could go on if to some extent values incident to 
property could not be diminished without paying for every such change 
in the general law[,]'' Mahon, 260 U.S. at 413, courts historically 
have applied Penn Central's inquiry stringently.
    First, the character of the governmental action that would give 
rise to TON's taking claim would likely weigh against an 
unconstitutional taking. H.R. 1410 was narrowly crafted so TON may 
still use the Glendale Parcel for commercial gain or otherwise, even if 
it cannot immediately operate Class II or III gaming activities on the 
property. The proximity of the Glendale Parcel to the Arizona Cardinals 
stadium will allow TON to pursue a wide variety of lucrative economic 
development activities that will bring significant revenue. Viewed from 
that perspective, the legislation is more akin to a zoning regulation 
restricting a particular land use, which tends to withstand a Takings 
Clause challenge. See generally Village of Euclid v. Ambler Realty Co., 
272 U.S. 365 (1926).
    Moreover, here Congress is effectively regulating gambling in the 
public interest. The Supreme Court has long recognized the regulation 
of gambling to be a traditional exercise of police power. See Lawton v. 
Steele, 152 U.S. 133, 136 (1894). And under a much older Takings Clause 
regime, it has held that ```acts done in the proper exercise of 
governmental powers, and not directly encroaching upon private 
property, though these consequences may impair its use,' do not 
constitute a taking within the meaning of the constitutional provision, 
or entitle the owner of such property to compensation from the state or 
its agents, or give him any right of action.'' Mugler v. Kansas, 123 
U.S. 623 (1887) (discussing prohibition of alcohol). It is of great 
consequence for purposes of this analysis that Congress has already 
placed substantial limits on Indian gaming unless done in accordance 
with the IGRA. If allowing gaming pursuant only to IGRA's strictures is 
Congress's baseline approach, then H.R. 1410 is consistent with that 
public policy insofar as it closes a loophole in IGRA that is only 
available to TON through its bad faith negotiations with other parties.
    Second, the economic impact of the regulation would clearly be 
significant but Supreme Court decisions have ``long established that 
mere diminution in the value of property, however serious, is 
insufficient to demonstrate a taking.'' Concrete Pipe & Products of 
Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 
602, 645 (1993). Indeed, the Supreme Court has noted that a diminution 
in property value as high as 75 percent or even 92.5 percent may not be 
a sufficiently serious impact. Id. at 645. Because the Glendale Parcel 
can be put to a range of other profitable uses, a court may well give 
less weight to the impact of precluding Class II and III gaming 
activities. It is also relevant to this analysis that H.R. 1410 is 
temporally limited so any economic impact on TON's ability to use the 
Glendale Parcel for gaming would terminate on January 1, 2027 when all 
Arizona tribal-state compacts will need to be re-negotiated. Further, 
H.R. 1410 would not prevent TON from developing a fourth casino 
anywhere outside of the Phoenix metropolitan area. These points 
illustrate how the Keep the Promise Act was drafted to avoid a 
permanent impairment of any economic development opportunities, 
including gaming, so any action challenging the Keep the Promises Act 
would likely fail to demonstrate a credible Takings Claim.
    Third, it is unlikely that TON will be able to establish that its 
investment-backed expectations rise above a ``unilateral expectation or 
an abstract need,'' which would be critical to establishing a Takings 
Claim. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984) (citation 
and quotation marks omitted). Several courts have recognized that 
gambling is a highly regulated industry and that it is difficult to 
hold reasonable investment-backed expectations in light of that 
regulation. See, e.g., Holliday Amusement Co. of Charleston, Inc. v. 
South Carolina, 493 F.3d 404, 411 (4th Cir. 2007) (holding no taking of 
slot machine property where South Carolina banned video poker after 25 
years of allowing it because ``Plaintiff's participation in a 
traditionally regulated industry greatly diminishes the weight of his 
alleged investment-backed expectations''); Hawkeye Commodity 
Promotions, Inc. v. Vilsack, 486 F.3d 430, 442 (8th Cir. 2007) (holding 
multi-million ``devastating economic impact'' of ban on TouchPlay 
machines to be ``discounted'' by ``heavily regulated nature of gambling 
in Iowa). TON was well aware of the inherent riskiness of gaming 
ventures when they purchased the Glendale Parcel. This is likely why 
the parcel was purchased and kept secret until a more favorable 
political environment improved the likelihood of success for their 
scheme. The attenuated timeline of this project epitomizes the highly 
speculative nature of gaming projects.
    Again, it would be difficult for TON to argue that IGRA and the 
2002 Compact guarantee a right to game on the Glendale Parcel. The Gila 
Bend Act and its corresponding settlement agreement did not give TON a 
right to violate its own subsequent promises in the compacting process. 
The Gila Bend Act is silent with respect to gaming and it was also 
enacted two years before IGRA. Further, no one can make the credible 
argument that by regulating Las Vegas style gaming and making it 
subject to the Tribal-State compacting process, that IGRA constituted a 
breach of contract or a taking of federally recognized tribes' inherent 
right to game on tribal lands. Congress could preclude Indian gaming 
altogether and has already enacted IGRA to establish that tribal gaming 
is permissible only ``if the gaming activity is not specifically 
prohibited by Federal law,'' 25 U.S.C.  2701(5), and it contains 
several restrictions as to the location of gaming facilitates. All of 
that at least arguably puts tribes on notice that Congress may at any 
time enact additional restrictions on tribal gaming. Moreover, the 2002 
Compact--which was negotiated between the Tribes and the State of 
Arizona--could not estop Congress from altering IGRA. Cf. Sioux Nation, 
448 U.S. at 410-411 (affirming Congress's power to abrogate treaties 
with tribes). Simply put, ``[t]he pendulum of politics swings 
periodically between restriction and permission in such matters [as 
gambling], and prudent investors understand the risk.'' Holliday 
Amusement, 493 F.3d at 411. Nothing in the Gila Bend Act bestowed any 
absolute right to locate a casino on Indian lands in Phoenix--much less 
did it enshrine a right to violate promises TON and other tribes later 
made in pursuit of IGRA compacts with Arizona in 1993 and 2002. IGRA, 
not the Gila Bend Act, defines the boundaries of Indian gaming 
authority, and just as Congress enacted limitations on such gaming in 
IGRA, it can legislatively protect the IGRA compacting process from the 
corrosive and profoundly destabilizing effect of unkept promises made 
to obtain a compact.
    In sum, there are considerable arguments against the viability of a 
Takings Clause challenge to H.R. 1410 that stem from the narrow scope 
of the legislation, arguments that the Assistant Secretary seemed to 
tacitly acknowledge when he responded to the Committee's inquiries on 
the issue. The limited nature of the government's restriction, the 
continued economic viability of the Glendale Parcel, and the highly 
regulated nature of gaming present significant barriers to a regulatory 
taking claim.
H.R. 1410 Would Not Impact Pending Litigation
    TON likes to tell Members of Congress to let the ongoing litigation 
run its course before taking any action on this matter. However, TON 
fails to tell those very same Members that the courts are unable to 
adjudicate the essential claims in this matter because TON refuses to 
waive its sovereign immunity. Thus, H.R. 1410 would not interfere with 
ongoing litigation and Congress is the only entity that can resolve 
this issue.
    Two lawsuits were brought after TON announced its intention to 
acquire lands into trust for an off-reservation casino in 2009. One 
lawsuit challenges the TON's ability to have the lands taken into trust 
status as an Indian reservation, and that lawsuit is near completion. 
The other lawsuit alleges that TON wrongfully induced the relevant 
parties to enter into the compact and is violating the compact. While 
the courts have been able to review certain claims with respect to the 
express terms contained within the gaming compact, the courts have been 
thwarted by TON from addressing the claims of fraud, misrepresentation, 
or promissory estoppel because TON asserted tribal sovereign immunity 
with respect to those claims. Tribal sovereign immunity is a legal 
doctrine providing that Indian tribes are immune from judicial 
proceedings without their consent or Congressional waiver. Congress 
waived tribes' sovereign immunity in IGRA with respect to claims for 
violations of a compact once the compact is signed, but IGRA does not 
waive a tribe's sovereign immunity for actions that occurred prior to 
the signing of the compact. Since TON refused to waive its sovereign 
immunity with respect to the claims of fraud, misrepresentation and 
promissory estoppel, which occurred prior to the signing of the 
compact, the court was unable to consider those claims. No one would 
expect a gaming compact to anticipate the need to waive sovereign 
immunity because a party would intend to commit fraud and 
misrepresentation, or wrongfully induce conduct. This is especially 
true here because Arizona tribes, including TON, signed an ``Agreement 
In Principle'' where tribes agreed to negotiate in good faith with one 
another. Sadly, the 2027 Arizona compacts may need to include very 
broad waivers of sovereign immunity as a result of the actions of TON 
here.
    It is these claims that the courts have dismissed that H.R. 1410 
seeks to remedy. And, in its May 7, 2013 order the Federal District 
Court for the District of Arizona found that although evidence appears 
to support the promissory estoppel claim against TON, the court had to 
dismiss the claim also because of TON's sovereign immunity. \3\ 
Promissory estoppel is where one party makes a promise and a second 
party acts in reasonable and detrimental reliance on that promise. In 
that instance, a court would normally be able to enforce the promise 
that was relied on regardless of whether it was expressly stated in a 
contract. That's exactly what happened in this matter. TON made 
representations that there would be no additional casinos in the 
Phoenix area and the State and other tribes and voters relied on TON's 
representations in deciding to give up rights to additional casinos and 
gaming machines, approve Proposition 202, and sign the compacts 
approved by the voters. It is critical that TON's false promises 
preceded execution of its compact with the State of Arizona and fell 
outside of IGRA's waiver of sovereign immunity. Neither IGRA nor any 
other law governing fair business practices anticipates fraudulent 
conduct among contracting parties. TON has exploited the fundamental 
assumption of propriety in business practices and shielded judicial 
review of its conduct by refusing to waive sovereign immunity.
---------------------------------------------------------------------------
    \3\ State of Ariz. v. Tohono O'odham Nation,, slip op. at 26-27 (D. 
Ariz. May 7, 2013).
---------------------------------------------------------------------------
    TON argues that it is unreasonable to expect it to waive its 
sovereign immunity for what its chairman referred to as frivolous 
claims. To the contrary, it is precisely because those claims would 
expose the wrongful conduct that TON must use sovereign immunity as a 
shield. And, while it is common for tribes to grant limited waivers of 
sovereign immunity, particularly for commercial reasons such as 
casinos, it is hard to imagine waivers that would have expressly 
envisioned duplicitous conduct grounded in fraud as part of a gaming 
compact; perhaps the State will require such waivers of all Arizona 
Indian Tribes in the 2027 compacts in order to safeguard against future 
conduct of this sort by TON. In the end, waiving sovereign immunity is 
a political decision, and one that we respect. However, it is 
disingenuous for TON to refuse to waive its sovereign immunity in court 
in order to prevent resolution of certain claims and then argue that 
Congress should not resolve these same claims because they are being 
addressed in litigation.
    H.R. 1410 comes at a critical time for tribal sovereignty and 
Indian gaming. In May, the Supreme Court issued its opinion in Michigan 
v. Bay Mills, 134 S.Ct. 2024 (2014). The Court, in a 5 to 4 decision, 
ruled that the Bay Mills Tribe could assert tribal sovereign immunity 
and avoid claims filed by the State of Michigan that sought to close 
what it claimed was an illegal off-reservation in Vanderbilt, Michigan. 
The Court stated at five different points in its opinion that Congress 
and not courts are the proper venue to resolve issues where sovereign 
immunity has frustrated efforts to bring justice to parties that cannot 
maintain suit against tribes. Perhaps most disturbingly, Justice 
Scalia, who voted in favor of several Supreme Court decisions which 
cemented the doctrine of tribal sovereign immunity, explicitly stated 
in his dissenting opinion in Bay Mills that those votes in support of 
sovereign immunity were wrong and that he ``would overrule'' tribal 
sovereign immunity. Although Bay Mills was certainly a victory for 
Indian Country, it also put a spotlight on the fragile state of tribal 
sovereign immunity and the fact that the Supreme Court is one vote from 
limiting its application or eliminating it altogether. Simply put, 
controversial gaming projects such as those proposed by Bay Mills and 
TON manipulated the federal approval process to avoid legitimate state 
and tribal concerns and have used sovereign immunity as a shield to 
protect illegal or fraudulent activity. From this perspective, H.R. 
1410 is good policy for Indian Country because it will address a narrow 
set of facts where one tribe is recklessly exploiting sovereign 
immunity that if not addressed by Congress could later be cited as the 
reason the Supreme Court changes its mind and decides to abrogate 
sovereign immunity.
    There remain certain issues that are pending in litigation, but 
those issues are not related to the claims of fraud, misrepresentation 
and promissory estoppel. H.R. 1410 is intended to not impact any 
pending court case, but rather to address the issues that the court has 
determined that it is unable to resolve. More, the Department of the 
Interior has also indicated that it cannot resolve the claims of fraud, 
misrepresentation and promissory estoppel. Thus, Congress and H.R. 1410 
is the only entity capable of resolving this issue and addresses issues 
that courts are unable to review.
    Thank you for holding the July 23, 2014 hearing and allowing 
Congressman Raul Grijalva, Congressman Paul Gosar, Mayor Jerry Weiers, 
Chairman Ned Norriss and President Diane Enos to testify on H.R. 1410. 
Now that this bill has been heard by the Senate Committee on Indian 
Affairs we respectfully request prompt consideration.
                                 ______
                                 
 Prepared Statement of Rex Tilousi, Chairman, Havasupai Tribal Council




                                 ______
                                 
    Prepared Statement of Hon. Ben Shelly, President, Navajo Nation








                                 ______
                                 
Joint Prepared Statement of Steven Andrew Light, Ph.D. and Kathryn R.L. 
Rand, J.D., Co-Directors, Institute for the Study of Tribal Gaming Law 
                               and Policy
    We thank Chairman Tester, Vice Chairman Barrasso, and the members 
of the U.S. Senate Committee on Indian Affairs, including Senators John 
Hoeven and Heidi Heitkamp of North Dakota, our university's home state, 
for this opportunity to comment on the future of Indian gaming 
following the Committee's July 23, 2014 oversight hearing on Indian 
gaming's next 25 years.
    We co-direct the Institute for the Study of Tribal Gaming Law and 
Policy at the University of North Dakota, providing legal and policy 
analysis and advancing research and understanding of Indian gaming. Our 
comments and recommendations here are informed by 18 years of 
collaborative research and interaction with those involved with Indian 
gaming.
    We welcome this opportunity to contribute our views on the current 
state of Indian gaming after its first 25 years of regulation pursuant 
to the Indian Gaming Regulatory Act of 1988 (IGRA), \1\ and the chance 
to identify key issues that will shape its next 25 years.
---------------------------------------------------------------------------
    \1\ 25 U.S.C.    2701-2721.
---------------------------------------------------------------------------
    At the July 23 hearing, Chairman Tester articulated many of the 
most important dimensions of how we understand Indian gaming now:

         Tribal gaming has come a long way in the 25 years since IGRA 
        was enacted. While not a cure-all for many serious challenges 
        facing Indian Country, gaming has provided numerous benefits to 
        the communities who operate successful facilities. These are 
        sophisticated operations, often employing significant numbers 
        of tribal members and non-Indians in their communities. Tribal 
        sovereignty and self-governance are important issues for me and 
        for this Committee. While gaming is not the answer for every 
        tribe, all tribal nations have the right to determine the best 
        possible future for their people.

    At the same hearing, Senator John McCain, one of IGRA's original 
architects, observed:

         I'm proud to say that Indian gaming stands today as a proven 
        economic driver that empowers over 240 gaming tribes across the 
        nation to pursue the principles of Indian self-determination 
        and tribal self-governance.

    To build upon Chairman Tester's and Senator McCain's remarks, we 
concur that Indian gaming--

   has changed considerably in 25 years, both in ways that were 
        contemplated in 1988 and ways that could not have been 
        anticipated;

   has advanced its policy goals to benefit tribal and non-
        tribal communities;

   has not solved for all of the socioeconomic and other 
        challenges facing many tribes;

   is an important expression of tribes' sovereign authority to 
        determine their own futures as a reflection of self-
        determination and self-governance; and

   is but one part of a fully realized tribal economic 
        development and diversification strategy.

    Indian gaming generally continues to meet its policy goals. While 
IGRA is not without its compromises, challenges, and costs, some of 
which were unforeseen in 1988, tribal gaming writ large is working for 
American Indian tribes and people as an extension of their sovereignty. 
Its benefits extend to non-tribal governments and communities, as well 
as to state governments and commercial entities, which in most cases 
have been willing participants in and beneficiaries of the Indian 
gaming industry.
    Yet despite its successes, Indian gaming, as the Chairman observed, 
has not been a ``cure-all'' for joblessness, poverty, inadequate 
healthcare or housing, or other significant challenges that still beset 
many Indian tribes. Indian gaming's next 25 years should incorporate a 
stronger commitment to achieving diversified tribal economic 
development and enhanced socioeconomic infrastructure at least on par 
with non-tribal communities.
    And, as the Committee's July 23, 2014 oversight hearing revealed, 
controversy continues to surround tribal gaming, particularly in the 
area of so-called ``off-reservation'' gaming (or, more accurately, 
gaming on newly acquired trust lands removed from a tribe's existing 
reservation). Indian gaming's next 25 years need to resolve legal 
uncertainty and political divisiveness through informed and responsible 
policymaking. As the Chairman concluded the hearing, what is required 
is ``due diligence on all these issues.''
    We believe the major immediate challenges of Indian gaming's next 
25 years revolve around gaming on newly acquired trust lands, the 
advent of online and mobile gaming, and leveraging gaming toward 
economic development and diversification. We recommend a set of policy 
guideposts--an Indian Gaming Ethic--to guide legislative solutions to 
these challenges.
I. The Indian Gaming Ethic
    As is extensively documented, the $27.9 billon Indian gaming 
industry continues to create jobs, generate revenue for tribal, state, 
and local economies, reshape the landscape of tribal intergovernmental 
relations and political influence, and transform reservation life.
    The Federal Government's trust obligation to tribes in the body of 
federal Indian law and policy, as well as IGRA's recognition of tribal 
sovereignty, provide a set of accepted and largely appropriate policy 
and regulatory structures to tribes and states. \2\ By virtually every 
measure, tribal gaming policy has been an enormous success. The primary 
metrics are those established by Congress in IGRA's stated policy 
goals, including promoting tribal economic development, self-
sufficiency, and strong tribal self-government; providing sound 
regulation to shield tribes from organized crime and corruption; 
assuring gaming integrity; and ensuring tribes are the primary 
beneficiaries of gaming. \3\
---------------------------------------------------------------------------
    \2\ Yet IGRA also is understood as a set of political compromises 
that also compromise tribal sovereignty. See STEVEN ANDREW LIGHT & 
KATHRYN R.L. RAND, INDIAN GAMING AND TRIBAL SOVEREIGNTY: THE CASINO 
COMPROMISE (University Press of Kansas, 2005).
    \3\ 25 U.S.C.  2701. On the relative success in achieving these 
goals, see generally KATHRYN R.L. RAND & STEVEN ANDREW LIGHT, INDIAN 
GAMING LAW AND POLICY, 2d ed. (Carolina Academic Press, 2014).
---------------------------------------------------------------------------
    This success in part is due to the fact that Indian gaming is 
subject to a unique and complex federal regulatory scheme, involving 
layers of federal, state, and tribal regulation. In the first 25 years 
since Congress enacted IGRA, the National Indian Gaming Commission 
(NIGC) and the federal Secretary of the Interior have promulgated 
extensive and detailed regulations, while states have used the 
compacting process to tailor regulatory provisions to local needs.
    IGRA largely also created the terms for the politics of Indian 
gaming in its first 25 years. Tribal-state compacting, revenue-sharing 
agreements, and gaming on newly acquired lands are primary examples. A 
recent major shift in oversight by the political branches is the move 
from evaluating whether tribal gaming enterprises comply with 
applicable law and regulation to advance IGRA's policy goals to asking 
whether tribal gaming itself is a desirable political outcome. In 
short, the law and policy of Indian gaming has grown only more complex 
since IGRA's passage.
    In light of these legal and political developments, we have 
advocated for an ``Indian Gaming Ethic'' to guide federal, state, and 
tribal policymaking in the area of legalized gambling. As an extension 
of IGRA's policy goals, this Indian Gaming Ethic incorporates three 
ideals:

        1. Protection of, respect for, and responsible exercise of 
        tribal sovereignty;

        2. Promotion of tribal economic development, self-sufficiency, 
        and strong tribal governments; and

        3. Incorporation of a general understanding of Indian gaming as 
        a means to serve tribes, tribal members, and tribal values, and 
        contribute positively to the surrounding community. \4\
---------------------------------------------------------------------------
    \4\ See Kathryn R.L. Rand & Steven Andrew Light, Indian Gaming on 
the Internet: How the Indian Gaming Ethic Should Guide Tribes' 
Assessment of the Online Gaming Market, 15 GAMING LAW REVIEW & 
ECONOMICS 11 (2011): 681-91.

    The Indian Gaming Ethic encourages Congress, states, and tribes to 
consider the impact of any proposed legal, regulatory, or policy 
reforms on tribal sovereignty and tribes' gaming operations, 
particularly for tribes that continue to experience high levels of 
poverty and unemployment.
Recommendations
    1. Any proposed amendment to IGRA or new legislation pertaining to 
Indian Country that would touch on Indian gaming should be informed by 
IGRA's policy goals and the Indian Gaming Ethic. The Ethic captures 
IGRA's intent and incorporates by extension tribal sovereignty as a 
necessary driver of federal law and policy outcomes affecting tribes.

    2. The 2015 Government Accountability Office (GAO) report and 
similar initiatives on Indian gaming should be informed by IGRA's 
policy goals and the Indian Gaming Ethic. The Ethic can frame 
methodological design, data gathering, and policy evaluation in ways 
that capture the full picture of Indian gaming's socioeconomic impacts, 
and cast any cost-benefit analysis against the backdrop of tribal 
interests, tribal culture, and tribal sovereignty.

II. Gaming on Newly Acquired Lands
    The first fundamental challenge in Indian gaming's next 25 years is 
gaming on newly acquired lands. \5\ IGRA expressly contemplates gaming 
on land newly taken into trust by the U.S. Federal Government for the 
benefit of tribes under a limited number of exceptions to IGRA's 
general prohibition against gaming on newly acquired lands. The 
greatest opportunity for continued industry expansion, especially for 
tribes with rural reservations--at least in terms of ``Indian gaming'' 
as IGRA contemplates it, in brick-and-mortar casinos--is via these 
statutory exceptions. Yet although some perceive otherwise, the facts 
bear out that in Indian gaming's first 25 years, this provision simply 
has not resulted in any significant expansion of tribal gaming removed 
from tribal communities: most tribal casinos are on pre-existing 
reservation lands. Nevertheless, for the last decade, gaming by tribes 
on newly acquired lands, including so-called ``off-reservation'' 
gaming, has been a political, legal, and regulatory lightning rod.
---------------------------------------------------------------------------
    \5\ 25 U.S.C.  2719.
---------------------------------------------------------------------------
    This controversy will escalate, for four major reasons:

   the tribal gaming industry has matured to a saturation 
        point, and existing reservation gaming cannot continue to 
        expand;

   following successful federal acknowledgment, newly 
        recognized tribes will continue to petition for land to be 
        taken into trust;

   state and local governments will continue to court new 
        tribal gaming operations on land on which they see it 
        advantageous; and

   the U.S. Supreme Court has complicated matters significantly 
        through recent land-into-trust decisions, a situation that will 
        continue in the absence of a congressional ``fix.''

    In recent years, market saturation on or near reservations, recent 
federal acknowledgment of tribal groups, and fluctuating U.S. 
Department of Interior interpretation of policy or procedure have led 
tribal governments to partner with commercial, local, and state 
interests in pursuit of gaming on newly acquired trust lands. Tribes in 
California, Massachusetts, and Michigan are at the forefront of recent 
controversies throughout the U.S. concerning federal determinations on 
land-into-trust for gaming purposes or Section 2719 ``best interests'' 
determinations under IGRA.
    Complicating the environment for off-reservation gaming are 
landmark U.S. Supreme Court decisions in Carcieri v. Salazar and Match-
E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. \6\ The 
Court cast doubt on the ability of the Secretary of the Interior to 
take land into trust for tribes not federally recognized as of 1934, 
when the Indian Reorganization Act (IRA) was passed, and opened the 
doors to individual legal challenges to Interior Department trust land 
acquisitions for six years after they occur. The Court's actions have 
thrown into flux a gamut of issues related to off-reservation gaming, 
including land acquisition; tribal acknowledgment; sovereign immunity; 
casino financing and other operational prerequisites; and the status of 
existing casinos that came about following federal land-into-trust 
determinations.
---------------------------------------------------------------------------
    \6\ 555 U.S. 379 (2009); 567 U.S._, 132 S. Ct. 2199 (2012).
---------------------------------------------------------------------------
    In addition to the Carcieri and Patchak decisions, gaming on newly 
acquired lands is contingent on the Interior Department's stance on 
federal land-into-trust process for gaming purposes, and federal 
interpretation of state and local actions, such as the Bureau of Indian 
Affairs' 2012 rejection of the novel compact agreement for a $500 
million casino between the recently acknowledged Mashpee Wampanoag 
Tribe and the Commonwealth of Massachusetts.
Recommendations
    1. Congress should enact a Carcieri ``fix.'' Legally, a clean 
Carcieri ``fix'' plainly is needed. The solution is straightforward 
from a textual and legal perspective.
    2. Short of a clean ``fix,'' Congress should engage in limited law 
reform. Politically, a clean fix may be impossible so long as the land-
into-trust process is perceived as the gateway to the unwelcome 
proliferation of casinos. Federal legislation to curtail ``off-
reservation'' gaming will impact all tribes, not just those in areas 
where local communities are unsupportive. As we have argued elsewhere, 
there are presently in place numerous legal controls over gaming on 
newly acquired lands. \7\ If there are pockets of controversy, IGRA's 
provisions-particularly the tribal-state compact requirement for 
casino-style gaming-allow states to tailor solutions to local problems.
---------------------------------------------------------------------------
    \7\ See Kathryn R.L. Rand & Steven Andrew Light, How Congress Can 
and Should ``Fix'' the Indian Gaming Regulatory Act: Recommendations 
for Law and Policy Reform, 13 VIRGINIA JOURNAL OF SOCIAL POLICY & THE 
LAW. 11 (2006): 396-473.
---------------------------------------------------------------------------
III. Online and Mobile Gaming
    The second fundamental challenge for Indian gaming in the next 25 
years is the advent of online and mobile gambling. It is only a matter 
of time before this becomes the next wave of legalized gambling in the 
United States. Brick-and-mortar casinos are the lifeblood of tribal 
gaming as it has developed pursuant to IGRA, and among their most 
obvious impacts is job creation. While land-based casinos will remain 
the heart of the Indian gaming industry for most tribes, the lingering 
effects of the Great Recession and recent casino closures in Atlantic 
City demonstrate their relative vulnerability to macroeconomic forces 
and local market fluctuation.
    Moreover, the gambling market is poised for fundamental change. 
Aside from the ubiquitous Internet, the reality is that we all have 
powerful, interlinked personal computers in our pockets and purses. 
Despite existing law effectively barring online gaming, and ongoing 
reluctance at the federal level to legalize poker or other games, there 
simply is no turning back on technological advances that continue to 
transform the prospects and demand for online and mobile gaming 
worldwide. Internet and mobile games have boomed on servers outside the 
U.S., and effectively have penetrated U.S. markets. The defining 
characteristics of Internet and mobile services include their 
unparalleled ability to cross virtual and physical borders, the 
difficulty of and public wariness regarding government regulation of 
personal privacy and behavior, and the pervasive integration of online 
and mobile services into all aspects of modern life. Because there is a 
seemingly insatiable global appetite for gambling--whether legal or 
illicit--and most everyone's desire to be wired is ever-expanding, the 
fit between the Internet and gaming is near-perfect.
    In the absence of federal legislation, it is no surprise that 
California, Delaware, Florida, Nevada, New Jersey, and at least a dozen 
more states have considered legalizing online poker or casino-style 
gaming. Delaware was first out of the gates, with Nevada and New Jersey 
close behind. This trend will not abate. Some assumed that Congress 
would preempt the field with federal legislation, especially as bills 
to legalize online poker have been introduced in multiple sessions. Yet 
these efforts did not find serious traction in Congress until 2012, 
with attempts to legalize Internet poker and also to recognize a tribal 
role through the separate Tribal Online Gaming Act (TOGA). \8\ However, 
in the face of political and commercial opposition, neither the TOGA 
nor other federal online gaming legislation has moved forward.
---------------------------------------------------------------------------
    \8\ Tribal Online Gaming Act of 2012, S. _, Discussion Draft, 112th 
Cong. 2d. Sess. (2012), available at http://www.indian.senate.gov/
sites/default/files/upload/files/TOGA-Sec-by-Sec-final.pdf (last 
visited Mar. 26, 2014). For our take on the TOGA, see Kathryn R.L. Rand 
& Steven Andrew Light, Statement for the Record Before the U.S. Senate 
Committee on Indian Affairs (July 26, 2012), http://www.gpo.gov/fdsys/
pkg/CHRG-112shrg78446/html/CHRG-112shrg78446.htm (last visited Mar. 26, 
2014). For a discussion of other policy issues related to tribal online 
gaming, see Rand & Light, Indian Gaming on the Internet.
---------------------------------------------------------------------------
    Like states, tribes are not standing still. The Alturas Indian 
Rancheria Tribe in rural California, seeking to launch the first tribal 
online gaming effort, the Cheyenne & Arapaho Tribes in Oklahoma, 
developing a site catering to gamblers outside the U.S., and the Lac du 
Flambeau Band of Lake Superior Chippewa in Wisconsin, working on ``fun-
play'' online gaming and seeking other partners through the Tribal 
Internet Gaming Alliance, are among those tribes pushing the online 
gaming envelope. \9\
---------------------------------------------------------------------------
    \9\ Pamela M. Prah, ``Tribes, States Eye Multibillion-dollar Online 
Gaming,'' USA Today, Dec. 11, 2013, http://www.usatoday.com/story/news/
nation/2013/12/11/indian-tribes-states-eye-online-gambling/3986473/ 
(last visited Mar. 26, 2014).
---------------------------------------------------------------------------
Recommendations
    1. Congress should legalize online and mobile gaming. The existing 
and potential online and mobile gaming markets are too large, too 
fluid, and too under-regulated for the federal, state, or tribal 
governments to ignore. The question today is less ``Should online 
gaming be legalized,'' but rather, ``By whom, when, and how?'' There 
are abundant forces-political, legal, economic, commercial-that suggest 
the answer to the first question is ``Soon, if not yesterday'' and as 
for the second, if Congress doesn't act quickly, then states will--with 
tribes fast on their heels. Because this is a national issue and a 
matter of interstate commerce, federal legislation and regulation are 
needed.

    2. Federal legislation should explicitly authorize Tribal Online 
Gaming by incorporating IGRA's policy goals and the Indian Gaming 
Ethic. Elsewhere, we have analyzed whether the legalization of Internet 
gaming would help or hurt Indian gaming. \10\ The question, we believe, 
revolves less around whether tribes should favor legalization of online 
and mobile gaming and more on the level of legalization. Whether large 
or small, the potential erosion of tribal market share in an online 
gaming environment simply needs to be anticipated, acknowledged, and 
managed. For some tribes--and perhaps for the majority that operate 
gaming-failure of brick-and-mortar casinos could be devastating to 
fragile economies and struggling communities. Federal legislation is 
the best way to ensure consistency with IGRA, protect tribes' existing 
gaming operations (and thus, for many tribes, protect their relatively 
fragile economies), and preserve tribal sovereignty.
---------------------------------------------------------------------------
    \10\ Rand & Light, Indian Gaming on the Internet.

IV. Tribal Economic Development and Diversification
    The third major challenge for Indian gaming in the next 25 years is 
tribal economic development and diversification beyond the casino. In 
the last decade, many tribes have sought to leverage the experience, 
expertise, and revenue from tribal gaming enterprises to advance 
broader economic development and diversification strategies. Tribes are 
pursuing long-term, multi-million-dollar investments in business 
ventures ranging from light manufacturing to banking. This move is 
essential, as the tribal gaming market has saturated, is increasingly 
subject to political scrutiny, and faces the disruptive prospect of 
online and mobile gaming.
    Yet gaming remains the centerpiece of many tribes' economies, and 
their diversification efforts often focus on the hospitality sector 
complementing gaming operations, including hotels, golf courses, gas 
stations, RV parks, and chain restaurants. Even tribes with only 
modestly successful gaming enterprises are able to use gaming revenue 
to invest in other businesses. In our home state of North Dakota, for 
example, the Turtle Mountain Band of Chippewa has operated a metal 
fabrication manufacturing company, and data services and information 
technology enterprises--along with its Sky Dancer Casino & Resort, 
which features a buffet and snack bar, a 200-room hotel, and event 
center--all on the tribe's reservation in rural North Dakota. 
Altogether, the Turtle Mountain Band provides over a thousand jobs in 
the area, over 400 of them at the casino.
    Although tribes plainly will seek to stabilize and grow reservation 
economies as well as strengthen tribal governments and tribal 
sovereignty through diverse economic ventures, it appears that the 
continued relative profitability of tribal gaming enterprises will keep 
Indian gaming a staple of many tribal economies for the foreseeable 
future. Yet for tribes to ameliorate the socioeconomic challenges that 
face them, they must diversify.
Recommendations
    1. Congress should continue to facilitate tribal economic 
development through gaming, the centerpiece of IGRA's policy goals. 
Strong tribal economies are essential to the wellbeing of Indian 
people, and gaming continues to be a critical economic driver for many 
tribes, particularly the most impoverished. As we have stated 
elsewhere, Indian gaming will have fulfilled Congress's intent in 
enacting IGRA when all gaming tribes have--

   stable, diversified economies to support thriving 
        reservation communities far into the future;

   steady median household income, employment, and poverty 
        levels in line with surrounding communities or the national 
        baseline, and

   well funded and staffed government agencies and services 
        that are able to meet tribal members' needs. \11\
---------------------------------------------------------------------------
    \11\ Rand & Light, How Congress Can and Should ``Fix'' the Indian 
Gaming Regulatory Act, 472-73.

    Until these aspirations are met, Congress should be exceedingly 
cautious about curtailing tribes' ability to use gaming as an economic 
driver for their communities.
    2. Congress should facilitate tribal economic diversification. We 
support recent efforts, such as those of Representative Suzan DelBene 
in introducing the Indian Country Economic Revitalization Act, \12\ to 
explore how federal legislation could promote sustainable and 
diversified tribal economies. Congress also could facilitate federal 
executive initiatives with the direct involvement of tribal leadership 
to encourage tribal economic and infrastructure development, provide 
technical assistance in federal-tribal partnerships, and ease the use 
of federal data on tribal economic development initiatives. The current 
goals of the White House Council on Native American Affairs clearly are 
steps in the right direction. \13\
---------------------------------------------------------------------------
    \12\ H.R. 4699.
    \13\ See Press Release, White House, ``Fact Sheet: Strengthening 
Tribal Communities Through Education and Economic Development'' (June 
13, 2014), http://www.whitehouse.gov/the-press-office/2014/06/13/fact-
sheet-strengthening-tribal-communities-through-education-and-econom 
(last visited Aug. 1, 2014).
---------------------------------------------------------------------------
    The Federal Government's trust responsibility to tribes should 
encompass the promotion of economic development and diversification, 
such that whether or not Indian gaming exists in 25 years--or in what 
form--tribal governments are economically self-sufficient and able to 
meet all tribal members' needs.
    We thank the Committee for its consideration of this statement at 
an important juncture for Indian gaming. We would be happy to answer 
any questions or elaborate on the suggestions we offer here, and to 
address any other issues related to Indian gaming's next 25 years that 
the Committee deems pertinent.
                                 ______
                                 
 Prepared Statement of Hon. Terry Rambler, Chairman, San Carlos Apache 
                                 Tribe








                                 ______
                                 
 Prepared Statement of Hon. Keeny Escalanti Sr., President, Fort Yuma 
                         Quechan Indian Nation






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     Response to Written Questions Submitted by Hon. Jon Tester to 
                          Hon. Kevin Washburn
    Question 1. How many fee-to-trust applications for gaming purposes 
are currently pending review by the Department?
    Answer. As of November 7, 2014, there are 19 fee-to-trust 
applications for gaming purposes under review by the Department. Six of 
these applications are under review by the Office of Indian Gaming, 
with the rest under review by the BIA regional offices.

    Question 1a. Have any of these applications been pending for more 
than a year without initiation of NEPA review? If so, why has the 
Department not initiated formal review of these applications?
    Answer. Of the 19 pending applications, only the Coquille Indian 
Tribe has a pending application to acquire land in trust for which the 
NEPA review process has not been initiated. The draft Notice of Intent 
to prepare an Environmental Impact Statement is currently under review 
by the Department.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John McCain to 
                          Hon. Kevin Washburn
    As you are aware, the Indian Gaming Regulatory Act (IGRA) generally 
prohibits gaming on lands acquired in trust after October 17, 1988, 
subject to several exceptions. One exception, known as the 
``Secretarial Determination'' or ``two-part determination,'' permits a 
tribe to conduct gaming on lands acquired in trust after 1988 where the 
Secretary determines: 1) that a gaming establishment on newly acquired 
lands would be in the best interest of the Indian tribe and its 
members, and 2) that gaming on the newly acquired lands would not be 
detrimental to the surrounding community. See 25 U.S.C.  2719(b)(1)(A) 
and 25 C.F.R.  292.13. The Department of the Interior has limited the 
definition of a surrounding community to include only those cities, 
towns, counties and Indian tribes within 25 miles of the proposed 
casino. 25 C.F.R.  292.2.
    Concerns have been raised by impacted surrounding communities that 
the BIA does not adequately consider the impact that new off-
reservation casinos will have to their communities.
    In light of the above, please inform the Committee as to:

    Question 1. Whether any of the gaming applications under 25 U.S.C. 
 2719(b)(1)(A) and/or 25 C.F.R.  292.13 have been denied since 1988 
because the gaming on the newly acquired land would be detrimental to 
the surrounding community;

    Answer. Since 1988, one application has been denied because gaming 
on the newly acquired land would be detrimental to the surrounding 
community (a joint application for Hudson, Wisconsin, submitted by the 
Sokaogon Chippewa Community, Lac Courte Oreilles Band of Lake Superior 
Chippewa Indians of Wisconsin, and the Red Cliff Band of Lake Superior 
Chippewa Indians of Wisconsin). In that case, our decision was vacated 
under a court-approved settlement agreement and the application was 
revised by the tribes. The Secretary eventually issued a favorable two-
part determination, but the governor refused to concur, which is 
required under a two-part determination, with the Secretary's decision.
    Since the regulations, 25 C.F.R.  292, became effective in August 
of 2008, no applications have been denied on this basis because 
applicant tribes have typically applied only after securing the support 
of local governments through a referendum, or an inter-governmental 
agreement to mitigate detrimental impacts, or both.

    Question 2. What factors does Interior analyze when considering 
whether gaming on newly acquired land would be detrimental to the 
surrounding community?
    Answer. The Department of the Interior considers the following 
factors when considering whether gaming on newly acquired land would be 
detrimental to the surrounding community:

   Information regarding environmental impacts, and plans for 
        mitigating adverse impacts including an Environmental 
        Assessment (EA), an Environmental Impact Statement (EIS), or 
        other information required by the National Environmental Policy 
        Act (NEPA).

   The anticipated impacts on the social structure, 
        infrastructure, services, housing, community character, and 
        land use patterns of the surrounding community.

   The anticipated impacts on the economic development, income, 
        and employment of the surrounding community.

   The anticipated costs of impacts to surrounding community 
        and identification of sources of revenue to mitigate them.

   The anticipated cost, if any, to the surrounding community 
        of treatment programs for compulsive gambling attributable to 
        the proposed gaming establishment.

   If a nearby Indian tribe has a significant historical 
        connection to the land, then the impact on that tribe's 
        traditional cultural connection to the land.

    Any other information that may provide a basis for a Secretarial 
Determination whether the proposed gaming establishment would or would 
not be detrimental to the surrounding community, including memoranda of 
understanding and inter-governmental agreements with affected local 
governments

    Question 3. Since 1988, which lands taken into trust by the 
Interior are not for gaming purposes but were subsequently used for 
gaming purposes?
    Answer. Since 1988, the Department has taken land into trust for 
tribes across the country. Section 20 of IGRA, 25 U.S.C.  2719, 
establishes criteria regarding whether gaming may occur on lands 
acquired in trust after 1988. For example, land acquired in trust after 
1988 that is within, or contiguous to, the boundaries of an Indian 
reservation is eligible for gaming. 25 U.S.C.  2719 (a)(1). Similarly, 
lands taken into trust in Oklahoma and within the boundaries of a 
tribe's former reservation are eligible for gaming. 25 U.S.C.  2719 
(a)(2)(A). It is possible that trust lands within a reservation or a 
former reservation in Oklahoma were taken into trust after 1988 for 
purposes other than gaming but were subsequently used for gaming 
purposes.
    Off-reservation lands taken into trust after 1988 would also need 
to comply with IGRA before such lands could be used for gaming. For 
example, the Keweenaw Bay Indian Community in Michigan acquired land in 
trust after 1988 for purposes other than gaming. Before the Keweenaw 
Bay Indian Community conducted gaming on the parcel, it submitted a 
gaming application under IGRA's ``two-part determination'' exception to 
conduct gaming on those lands
    The Department does not track how tribes use trust land unless and 
until Federal action is requested concerning the use of the land. The 
National Indian Gaming Commission (NIGC) may have additional 
information about other instances due to its regulatory authority over 
Indian gaming.