[Congressional Record Volume 143, Number 148 (Wednesday, October 29, 1997)]
[Senate]
[Pages S11343-S11345]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LIEBERMAN:
  S. 1329. A bill to prohibit the taking of certain lands by the United 
States in trust for economically self-sufficient Indian tribes for 
commercial and gaming purposes, and for other purposes; to the 
Committee on Indian Affairs.


               THE INDIAN TRUST LANDS REFORM ACT OF 1997

  Mr. LIEBERMAN. Mr. President, I rise today to introduce legislation 
aimed at returning some common sense to one aspect of the Federal 
Government's Indian lands policies. My bill, the Indian Trust Lands 
Reform Act of 1997, arises out of a problem Connecticut and other 
States have been struggling with for the last few years.
  The bill would amend the Indian Reorganization Act of 1934 to 
reinforce its original purpose: helping Indian tribes and individual 
Indians to hold on to or obtain land they need to survive economically 
and become self-sufficient. Congress passed the 1934 act after the 
landholdings of some tribes had dwindled down to acres. Tribes and 
their members were selling and losing land to foreclosures, tax 
arrearages, and the like. The 1934 act gave the Secretary of the 
Interior the authority needed to help tribes hold on to or acquire land 
on which they could earn a living and, further, to hold those lands in 
trust for them so they would not be sold or otherwise lost. Once the 
United States takes land into trust for a tribe through this process, 
the land becomes part of the tribe's sovereign property. This means 
that State and local governments no longer have jurisdiction over the 
land, and the land is removed from those governments' tax, zoning, and 
police powers.
  Economic conditions for some tribes have improved since 1934 through 
a variety of commercial, agricultural, and other enterprises, but many 
are still struggling. Few could be described as rich or even 
comfortable; far too many still live in poverty. The 1934 act should 
remain available to help those tribes who still need assistance from 
the Federal Government in attaining economic self-sufficiency.
  As our experience in Connecticut has shown, however, that act is now 
being used to achieve goals far removed from its original purpose. As a 
result of the Indian Gaming Regulatory Act of 1988, many tribes have 
established casinos and gambling operations, and, although gaming has 
not brought riches to many of those tribes, some have been very 
successful, particularly in my home State. One of the most successful 
gambling casinos in the country is located in eastern Connecticut and 
is owned and operated by the Mashantucket Pequot Tribe. The success of 
the tribe's Foxwoods Casino has been well chronicled. Established in 
1992, the casino has been open 24 hours a day, 7-days a week ever 
since. Whatever one thinks about the Indian Gaming Regulatory Act or 
gambling, either morally or as a vehicle for economic growth, the 
Mashantucket Pequots seized the opportunity presented to them by the 
Indian Gaming Act. They have developed an extraordinarily successful, 
well-run casino in record time. Annual casino revenues for the 500-
member tribe reportedly approach $1 billion. By any measure, the tribe 
has become very wealthy.
  Given the tribe's tremendous financial success, it is not at all 
surprising that it has decided to buy more land near its reservation in 
order to expand and diversify its businesses. According to press 
accounts, the tribe owns over 3,500 acres outside of the boundaries of 
its reservation, in addition to the approximately 1,320 acres that is 
held in trust on its behalf within the reservation. The tribe is now 
the largest private landowner in southeastern Connecticut. It already 
runs several hotels outside of its reservation's boundaries, and tribal 
leaders have at various times talked of building a massive theme park 
and golf courses on its off-reservation land.
  The tribe owns its land in fee simple and so is free to develop it 
like any other property owner might. But unlike other property owners--
who must develop their land in compliance with State and local zoning 
laws and who

[[Page S11344]]

must pay taxes on the land and on the businesses conducted on the 
land--the tribe has claimed it has the option, under the 1934 act, to 
ask the Department of the Interior to take that land in trust on the 
tribe's behalf, thereby removing the land from all State and local 
jurisdiction. This is an option because the Department of Interior 
interprets the 1934 act as being available, with limitations, to all 
federally recognized tribes, regardless of whether the tribe's 
situation bears any resemblance to the conditions that originally 
spurred Congress to enact the 1934 provisions.
  And, this is an option the Mashantucket Pequots have exercised. In 
1992, the Department of Interior granted the tribe's request to take 
into trust approximately 20 acres located outside the tribe's 
reservation boundaries in the neighboring towns of Ledyard and Preston. 
In January 1993, the tribe filed another application, this one to have 
an additional 248 off- reservation acres taken in trust. The affected 
towns of Ledyard, North Stonington, and Preston challenged that 
request. Nevertheless, the Department of Interior granted that request 
in May 1995, subject to certain conditions regarding the land's 
development--a decision the towns and the Connecticut attorney general 
are challenging in Federal court. In March 1993, the tribe applied to 
have 1,200 more off-reservation acres taken in trust. That request was 
sent back to the tribe because of legal deficiencies in the 
application, but reapplication by the tribe is expected, and past 
statements by tribal leaders suggest that more applications may be 
filed in the future.
  The effect of the tribe's and the Department of Interior's decisions 
involving off-reservation lands has been unsettling, to say the least, 
on the tribe's neighbors--the residents of the small towns that border 
the reservation. Once the United States takes land into trust on behalf 
of a tribe, as it has attempted to do here, boundaries change 
permanently. The land is no longer within the jurisdiction of the State 
or local governments. It is not subject to local zoning, land-use or 
environmental controls. Taxes cannot be collected on the land or on any 
business operated on the land. And State and local governments may 
exercise no police powers on the land unless invited by the tribe to do 
so.

  The plight of the towns surrounding the Mashantucket Pequot lands 
show that these problems are not just theoretical. Ledyard, North 
Stonington, and Preston are small communities whose combined population 
is about 25,000--less than half the number of visitors the Foxwoods 
Casino receives on a typical summer weekend. The towns have a combined 
annual tax revenue of approximately $25 million--less than half the 
amount of revenue the casino's slot machines generate in 1 month alone. 
Obviously, towns of this size cannot absorb a business of this size 
without there being any consequences. As a result of the Casino's 
success, the character of the towns has been permanently altered, and 
the costs of local government--from crime prevention to road 
maintenance to countless other things--have increased, all at the same 
time that the 1934 act has precluded the towns from exercising zoning 
and other controls and from collecting taxes to help defray the newly 
imposed costs.
  Given the financial resources of the tribe and the apparent 
willingness of the Department of Interior to take land into trust on 
their behalf regardless of any evidence that the tribe needs additional 
trust lands, many residents wonder where this will lead. I question the 
policy justification for the United States to change the boundaries of 
three Connecticut towns unilaterally so that an extraordinarily wealthy 
tribe--this one or any other --can expand its gaming or other business 
enterprises, free of taxes and local land-use controls, particularly 
when that tribe is perfectly capable of expanding its businesses on the 
thousands of trust and nontrust acres it presently owns. I question 
whether Congress--which enacted the 1934 act ``to provide for the 
acquisition, through purchase, of land for Indians, now landless, who 
are anxious to make a living on such land * * * '' and ``to meet the 
needs of landless Indians and of Indian individuals whose landholdings 
are insufficient for self-support'' (Senate Report No. 1080, 73d 
Congress, 2d Session 1-2 (1934))--intended in 1934 that the law would 
be used in this fashion.
  The authority for the Department of Interior to grant the tribe's 
request is now subject to review in the courts. The courts will have to 
decide whether the 1934 act even applies to this tribe and, if so, 
whether the Secretary acted properly. The courts will have to decide as 
well whether the 1983 Mashantucket Pequot Settlement Act independently 
prohibits trust acquisition by the tribe outside of reservation 
boundaries and whether the trust acquisition complied with applicable 
Federal environmental laws.
  To avoid future disputes and controversy, my bill would amend the 
Indian Reorganization Act to return to its original purpose. It would 
prohibit the Secretary of Interior from taking any lands located 
outside of the boundaries of an Indian reservation into trust on behalf 
of an economically self-sufficient Indian tribe, if those lands are to 
be used for gaming or any other commercial purpose. It directs the 
Secretary of Interior to determine, after providing opportunity for 
public comment, whether a tribe is economically self-sufficient and to 
develop regulations setting forth the criteria for making that 
determination generally. Among the criteria that the Secretary must 
include in those regulations to assess economic self-sufficiency are 
the income of the tribe, as allocated among members and compared to the 
per capita income of citizens of the United States, as well as the role 
that the lands at issue will play in the tribe's efforts to achieve 
economic self-sufficiency. May I note that I understand that some 
tribes do not have reservations in the traditional sense, and so the 
language of this bill will have to be adjusted in the future to address 
the situation of those tribes.
  In short, my bill is very narrow in scope, aimed solely at ensuring 
that the Department of Interior's awesome power to remove lands from 
State and local authority is used only in accordance with the original 
intent of the 1934 Act. The bill would not impose any restrictions on 
the Department's authority to take on-reservation land into trust. It 
would not affect the ability of the Secretary to assist tribes that 
genuinely need additional land--whether on or off their reservations--
in order to move toward or attain economic self-sufficiency. It would 
not even affect the ability of the Department of Interior to take into 
trust off-reservation land for wealthy tribes needing the land for non-
commercial purposes. The bill contains explicit exemptions for the 
establishment of initial reservations for Indian tribes, whether 
accomplished through recognition by the Department of Interior or by an 
act of Congress, and in circumstances where tribes once recognized by 
the Federal Government are restored to recognition. And, of course, it 
does not impact the ability of wealthy tribes to buy as much land as 
they want for whatever purpose they want it. The only thing my bill 
does do is to require tribes who are economically self-sufficient and 
who wish to engage in commercial activity outside of their 
reservation's boundaries to do so in compliance with the same local 
land-use and tax laws applied to every other land holder.
  Mr. President, many residents of Connecticut applaud the success that 
the Mashantucket Pequot Tribe has had with its Foxwoods Casino. The 
tribe employs thousands of Connecticut residents in an area of the 
State that was hard hit by a lingering recession and cuts in defense 
spending. The tribe's plans for economic development of the region, 
while not universally liked, have many in the area genuinely excited 
about future opportunities.
  I have discovered though that even among residents cheered by the 
tribe's success and supportive of its plans, there is a strong sense of 
unfairness about how the land in trust process is being used. They 
believe there is no reason why this tribe, or any other in a similar 
situation, needs to have the U.S. Government take additional, 
commercial land in trust on the tribe's behalf outside of its 
reservation boundaries. What is at stake here, after all, is not 
preserving a culture or achieving self-sufficiency, but expansion of an 
already successful business on lands that are owned by the tribe and 
developable by them, as they would be by any other

[[Page S11345]]

landowner. Extra help is simply not needed, and continuing to grant it 
is not fair and, in my view, ultimately counterproductive for all 
involved.
  It is time for Congress to make this common-sense clarification in 
the law. I urge my colleagues to join me in supporting this 
legislation, and ask unanimous consent that the text of the bill appear 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1329

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Trust Lands Reform 
     Act of 1997''.

     SEC. 2. PROHIBITION AGAINST TAKING CERTAIN LANDS IN TRUST FOR 
                   AN INDIAN TRIBE.

       Section 5 of the Act of June 18, 1934 (commonly known as 
     the ``Indian Reorganization Act of 1934'') (48 Stat. 985; 25 
     U.S.C. 465) is amended--
       (1) by striking the section designation and inserting 
     immediately preceding the first undesignated paragraph the 
     following:

     ``SEC. 5. ACQUISITION OF LANDS.'';

       (2) in the first undesignated paragraph, by striking ``The 
     Secretary of the Interior'' and inserting the following:
       ``(a) In General.--Except as provided in subsection (b), 
     the Secretary of the Interior'';
       (3) in the undesignated paragraph following subsection (a), 
     as redesignated, by striking ``For the'' and inserting the 
     following:
       ``(d) Authorization of Appropriations.--For the'';
       (4) in the undesignated paragraph following subsection (d), 
     as redesignated, by striking ``The unexpended'' and inserting 
     the following:
       ``(e) Availability of Unexpended Balances.--The 
     unexpended'';
       (5) in the undesignated paragraph following subsection (e), 
     as redesignated, by striking ``Title to'' and inserting the 
     following:
       ``(f) Exemption From Taxation.--Title to''; and
       (6) by inserting after subsection (a) the following:
       ``(b) Prohibition.--
       ``(1) In general.--Except with respect to lands described 
     in subsection (c), the Secretary of the Interior may not 
     take, in the name of the United States in trust, for use for 
     any commercial purpose (including gaming, as that term is 
     used in the Indian Gaming Regulatory Act (25 U.S.C. 2701 et 
     seq.)) by an economically self-sufficient Indian tribe, any 
     land that is located outside of the reservation of that 
     Indian tribe as of the date of enactment of the Indian Trust 
     Lands Reform Act of 1997.
       ``(2) Determination of economic self-sufficiency.--
       ``(A) In general.--The Secretary of the Interior shall, 
     after providing notice and an opportunity for public comment, 
     determine whether an Indian tribe is economically self-
     sufficient for purposes of this subsection. The Secretary of 
     the Interior shall issue regulations pursuant to section 553 
     of title 5, United States Code, to prescribe the criteria 
     that shall be used to determine the economic self-sufficiency 
     of an Indian tribe under this subsection.
       ``(B) Criteria.--The criteria described in subparagraph (A) 
     shall include--
       ``(i) a comparison of the per capita allocation of the 
     gross annual income of an Indian tribe (including the income 
     of all tribal enterprises of the Indian tribe) among members 
     of the Indian tribe with the per capita annual income of 
     citizens of the United States; and
       ``(ii) the potential contribution of the lands at issue as 
     trust lands toward efforts of the Indian tribe involved to 
     achieve economic self-sufficiency.
       ``(c) Treatment of Certain Lands.--Subsection (b) shall not 
     apply--
       ``(1) with respect to any lands that are taken by the 
     Secretary of the Interior in the name of the United States in 
     trust, for the establishment of an initial reservation for an 
     Indian tribe under applicable Federal law, including the 
     establishment of an initial reservation by the Secretary of 
     the Interior in accordance with an applicable procedure of 
     acknowledgement of that Indian tribe, or as otherwise 
     prescribed by an Act of Congress; or
       ``(2) to any lands restored to an Indian tribe as the 
     result of the restoration of recognition of that Indian tribe 
     by the Federal Government.''.
                                 ______