[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                  INDIAN GAMING REGULATORY AMENDMENTS

  Mr. INOUYE. Mr. President, I rise today to join the vice-chairman of 
the Committee on Indian Affairs, Senator John McCain, in sharing with 
our colleagues, our efforts to address the matter of amendments to the 
Indian Gaming Regulatory Act of 1988.
  Those of our colleagues who are well-versed in matters of Indian 
gaming know that almost before the ink was dry on the President's 
signature--on a bill that sought to establish a comprehensive framework 
for the conduct of gaming activities on Indian lands--there have been 
continuous calls for amendments to that Act.
  Many of these overtures were prompted by the rulings of various 
Federal courts that were confronted with interpreting the Federal law 
as it interacts with State law.
  For those that are less than well versed in matters of Indian gaming, 
it is important to understand the fundamental structure of the Act. It 
is based on the concept of equal protection as well as the public 
policy of each State.
  That is, Indian tribal governments are authorized to conduct those 
games that are not against the public policy of the State in which the 
tribe's reservation is located and which are not criminally-prohibited 
as a matter of State law.
  It is that sense that the Indian nations are afforded the equal 
protection of the laws of each State--by operation of the Federal law, 
tribal governments are authorized to conduct those games that are 
permitted to be played by anyone else in the State for any purpose.
  When a State and a tribal government disagree as to which games are 
permitted to be played pursuant to State law, one task of the Federal 
courts is to examine the public policy of each State, and then turn to 
a more specific analysis of State gaming law.
  The policy objective of the Indian Gaming Regulatory Act is thus 
based upon the premise that the citizens of each State have, by the 
exercise of their votes, made a determination as to the State's public 
policy with regard to gaming generally, and have also made specific 
decisions about which games are to be permitted and which games are to 
be prohibited by criminal sanction. The Federal law thus looks to the 
State's law to define the parameters of Indian gaming in each State.
  This matter has come to be known as the ``scope of gaming'', and has 
become perhaps the most challenging controversy associated with the 
Act.
  The tribal governments, I think, would maintain that they seek only 
to engage in those activities that are permitted to other citizens of 
the State.
  From a State perspective, the Federal courts are not construing State 
law and public policy in a manner that is consistent with the State's 
own interpretation of its laws.
  The challenge posed to the committee is to amend the Federal Act in 
such a way as to reduce or even eliminate the latitude with which 
courts interpret State public policy as it relates to gaming and the 
construction by the Federal courts of State gaming laws.
  It is the resolution of this issue which, after hundreds of hours of 
dialogue amongst representatives of State and tribal governments, has 
proven elusive.
  The second matter that has been a source of considerable concern, at 
least for those tribes that are affected by such Federal court rulings, 
is the assertion by some States of the tenth and eleventh amendments to 
the constitution as defenses to Federal court jurisdiction.
  Two of the circuit courts of appeals have now ruled and are in 
agreement on the tenth amendment, while four of the circuit courts of 
appeals have now ruled on the eleventh amendment and have come to 
different conclusions.
  Thus, while it is likely that the Supreme Court will be addressing 
the conflict between the circuits on the eleventh amendment, there have 
been a number of tribal governments who have called upon the committee 
to legislatively address this matter through amendments to the Act.

  Another area of concern to those States along the east coast is the 
effect of the 1988 Gaming act on the terms of previously-enacted Indian 
Land Claims Settlement Acts.
  The Supreme Court has not acted to deny certiorari in the challenge 
by the State of Rhode Island to the application of the Indian Gaming 
Regulatory Act to the extent that it is inconsistent with the 
provisions of the Rhode Island Indian Land Claims Settlement Acts, 
thereby letting stand the ruling of the first circuit that the Indian 
Gaming Regulatory Act impliedly repeals a portion of the Rhode Island 
Settlement Act.
  And while there are other matters of concern to the States and the 
tribes, there is one matter that is important to everyone who has some 
involvement in Indian gaming--to the tribes and the States, to the 
managers and the patrons.
  This is the matter of Federally-established minimal standards that 
would apply to the governmental regulation of Indian gaming--whether 
regulation is the responsibility of a State government, a tribal 
government, or both--and which would of course apply to the Federal 
Government in equal measure.
  We have proposed the formation of an advisory committee of tribal, 
State and Federal Government representatives to formulate these 
standards and recommend their adoption.
  To those critics of minimal standards who suggest that it is somehow 
unfair or discriminatory to single out Indian gaming for compliance 
with standards for regulation, I would comment that if I were chairman 
of a committee with broader jurisdiction over all gaming, I would be 
equally supportive of minimal Federal standards for all gaming.
  My jurisdiction as chairman of the Committee on Indian Affairs is, 
however, limited, and thus I am constrained by the scope of my 
authority.
  These are the primary issues with which we have been engaged over the 
past year, and although the tribal-State dialogue process that vice-
chairman McCain will detail did not come to fruition, I believe that 
there remains the will and the commitment on the parts of the States 
and the tribes to continue to work with the committee, so that we may 
have a measure ready for introduction in January.
  In the interim, I want to express my deep appreciation and gratitude 
to those who have committed their time and energy, measured in hundreds 
if not thousands of hours, to the development of legislation to amend 
the Indian Gaming Regulatory Act of 1988.
  This includes governors and attorneys general, tribal government 
leaders and their attorneys, representatives of the Federal agencies, 
and last but certainly not least the members and staff of the Committee 
on Indian Affairs and those who have graciously lent their advice and 
counsel to the committee.
  I also want to thank our colleague, Senator Harry Reid, for his 
forbearance in proceeding with his own legislation to amend this Act, 
while this process of State-tribal dialogue was ongoing. I hope that we 
can develop a measure that will address his concerns, and which will 
strike the proper balance between the interests of the Federal, State 
and tribal governments in their capacities as sovereigns.

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