[Congressional Record Volume 144, Number 1 (Tuesday, January 27, 1998)]
[Senate]
[Pages S49-S51]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. BRYAN (for himself, Mr. Enzi, Mr. Reid, and Mr. Sessions):
S. 1572. A bill to prohibit the Secretary of the Interior from
promulgating certain regulations relating to Indian gaming activities;
to the Committee on Indian Affairs.
gaming activities legislation
Mr. BRYAN. Mr. President, Senators Enzi, Reid and I are today
introducing legislation to stop the Interior Department from moving
forward with regulations that in my view trample on States rights and
invade the province of Governors and State legislators to determine
what kinds of gaming activities will occur in their States. This
proposed regulation flies in the face of the intent of Congress.
I must say I am disappointed we are forced to take this step and
would hope that the Secretary of the Interior would reconsider his ill-
advised action. Last week the Secretary of Interior proposed rules that
would allow the Interior Department to be the sole arbiter in the
compacting process as to what kinds of gaming activities can be
conducted on Native American lands. This is being done over the strong
objections of the Nation's Governors and the Nation's Attorneys
General, as well as the intent of Congress.
I believe that in so doing, the Secretary is overstepping his
authority and is making a grave mistake. In what I consider
particularly convoluted logic, the Department has asserted that because
the courts have struck down certain provisions of the Indian Gaming
Regulatory Act, referred to as IGRA, that they can step in and decide
on their own what gaming activities States must allow tribes to engage
in.
I think by way of background, Mr. President, it may be helpful to
share with my colleagues the basis of the underlying legislation as it
relates to Native American gaming activities. In 1988, the Congress
passed the Indian Gaming Regulatory Act, and in so doing, tribal gaming
activities were and are divided into three categories,
[[Page S50]]
with class I being reserved as traditional Indian games, class II being
bingo-type games, and class III being casino-type games. Now, with
respect to class III gaming, under the law, States and tribal
governments negotiate a compact as to what type of games are to be
permitted, if any, within class III.
Under recent court decisions, Governors are required to negotiate
with tribes only on gaming activity that is permitted by law in that
State. For instance, Hawaii and Utah prohibit all forms of gaming, and
therefore their respective Governors are not required to negotiate with
tribes for any types of gaming activity. In Nevada, where we permit all
forms of casino gaming, that is class III gaming, the State is required
to enter into a compact with tribes allowing them to engage in all
forms of gaming, and indeed without conflict or controversy five such
compacts have been entered into.
The Secretary has chosen, however, to put his own legal
interpretation of what types of gaming activities must be put on the
negotiating table. This so-called ``scope of gaming'' issue was fought
out in the courts and decided in favor of Governors in the Rumsey case.
The Rumsey case held that Governors are not forced to negotiate other
gaming activities that are not permitted in the State in general.
The Secretary appears to be trying to circumvent this decision and
would force States, for example, that would allow a lottery and require
them to negotiate with Indian tribes to make slot machines available,
even though slot machines are illegal in that State. Given this clearly
skewed legal interpretation, it seems to me that the Governors' fears
are well-founded.
The Department holds the position of fiduciary and trust obligation
to the tribes and is an acknowledged advocate for tribal interests. The
Department is taking the position that it should be the sole arbiter
between the interest of the State and tribes in negotiating what form
and scope of gaming should be permitted when it clearly has a bias in
favor of one of the parties.
It is no wonder the Governors said in their December 5 letter to
President Clinton that they will actively oppose any independent
assertion by the Secretary of his power to authorize tribal governments
to operate class III gaming.
Mr. President, I ask unanimous consent the December 5, 1997, letter
addressed to the President by the Western Governors' Association,
signed by its chairman, Governor Knowles of Alaska, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Western Governors' Association,
Denver, CO, December 5, 1997.
William J. Clinton,
President of the United States,
The White House, Washington, DC
Dear Mr. President: It is the understanding of the Western
Governor's Association that the Secretary of Interior has
proposed a rule-making on Indian Gaming that would usurp the
Governors authority to enter into compact negotiations on
gaming with Indian tribes. States have repeatedly voiced
their concerns about the Secretary's desire a promulgate this
rule. On October 10, a letter was sent by the National
Governors' Association Chairman and Vice Chairman to the
Secretary of Interior on this rule-making proposal.
It is evident that the states' concerns have gone unheard
or at least have not been responded to by the Secretary. As a
former Governor, you can appreciate how troubling it is when
a cabinet member fails to consider or enter into a dialogue
with us about state's legitimate concerns.
The Secretary is using the Seminole Tribe of Florida vs.
Florida decision by the Supreme Court to inappropriately
expand his authority. The Indian Gaming Regulatory Act (IGRA)
established a procedure whereby decisions could be made when
a state and tribe were unable to agree to the terms of a
compact. Before the Secretary is authorized to provide a
compact to a tribe under IGRA, the courts must first make a
finding of bad faith on the part of the state. When the
Supreme Court stuck down the portion of IGRA that permitted
tribes to sue states in Federal Court, it eliminated the
mechanism for arriving at a finding of bad faith by the
court. It would be inappropriate for the Secretary to now
take the authority to render a finding of bad faith and then
to authorize a gaming compact to a tribe over the objections
of a state. Moreover, the Secretary's action contradicts the
clear intent of Congress as embodied in the final Interior
conference report that you signed, which imposes a one-year
moratorium on imposition of a procedure that would result in
tribal Class III gaming in the absence of a tribal-state
compact as required by law.
As the National Governors' Association policy states
``nothing remains in the Indian Gaming Regulatory Act or any
other law that endows the Secretary with the authority to
independently create such a process. The Governors will
actively oppose any independent assertion by the Secretary of
the power to authorize tribal governments to operate Class
III Gaming. State and tribal governments are best qualified
to craft agreements on the scope and conduct of Class III
Gaming under IGRA.'' Furthermore, under the duties of the
office, the Secretary has a special legal relationship to
Native Americans, and it would be impossible for him to be
objective in making decisions settling compact differences
between states and tribes--in effect the Secretary becomes a
self-appointed judge and jury.
There are difficult issues, and we understand the Secretary
intepretating his role as advocate for Native Americans.
However, Governors have Constitutional responsibilities to
all of the people of our states. Based on these
responsibilities we are compelled to tell you that the
Secretary started down an unproductive path when we concluded
that the Interior Department should become the sole arbiter
in the compact process.
We urge you to find a resolution to the conflicts between
the states and tribes that is more appropriate than that
initiated by the Secretary. The Western Governors Association
stands ready to participate in such an effort.
Sincerely,
Tom Knowles,
Governor of Alaska,
Chairman.
Mr. BRYAN. The Governors have repeatedly called the Secretary's
proposal an inappropriate expansion of his authorities. Governors of
the State in the process of negotiating a gaming compact with tribes
will be severely disadvantaged by this proposal. Tribes will be much
better off letting the Secretary of the Interior decide their fate--
believing they can get a better deal from a person who is an
acknowledged advocate for their interests and indeed encourages gaming
as a means of generating tribal revenues.
The Department asserts the States must be acting in bad faith for the
Secretary to strip the States of their rights. Of course, the Secretary
is the judge and jury over whether the States, in fact, are negotiating
in bad faith. To make matters even worse and to heighten the concerns
the Governors have, the Department has informed us that they would
consider the actions of Governor Wilson of California to be negotiating
in bad faith because he refuses to negotiate with any tribe that
persists in operating illegal games on tribal reservations. As Governor
Wilson has indicated, he has a simple rule: If it is legal under State
law, all can do it; if it is not legal under State law, no one can do
it. The Governor wants the tribes to cease and desist illegal gaming
activities before he will negotiate a compact or legal game, and the
Interior Department would consider that bad faith.
Now, that situation is not peculiar to California alone. Let me cite
an example, if I may, Mr. President, in a letter addressed to the
Honorable Bruce Babbitt, Secretary of the Interior, July 1, 1996, on
behalf of the National Governors' Association. I quote a single
paragraph from that letter. It arises out of the situation that
occurred in the State of Florida.
The factual situation underlying the U.S. Supreme Court's
decision in Seminole is an example of typical tribal-State
conflict over IGRA implementation. Florida refused to
negotiate with the Seminole Tribe over the operation of slot
machines. Slot machines are prohibited by Florida law, and
state voters have rejected three referenda to legalize such
devices, as well as other casino-style games. The state's
public policy and the preference of Florida citizens with
respect to this type of gambling activity could not be
clearer. Yet the Seminole Tribe proceeded to take the state
to court on the grounds that Florida had failed to negotiate
in good faith, even though the state was merely negotiating
within the limits of state law and state public policy on
gambling.
Again, under the proposed regulation, the Interior Department would
interpret the Florida situation as being one of bad faith and therefore
the Interior Department could step in--in effect, supersede the
negotiations and the position taken by Florida's Governor in response
to voter preference and public policy in the State of Florida--and to
negotiate a compact that could conceivably allow a full range of casino
gaming activity contrary to the public policy of that State.
Mr. President, I am personally offended that the Department has
chosen to proceed with rulemaking in clear violation of the intent of
Congress.
[[Page S51]]
Members will recall that Senator Enzi and I attached language to the
Interior appropriations bill which imposes a moratorium on the
Department implementing such a rule. The language reads: ``During
fiscal year 1998, the Secretary may not expend any funds made available
under this act to review or approve any initial tribal-State compact
for class III gaming entered into on or after the day of the enactment
of this act, except for a compact which has been approved in accordance
with IGRA and State law.'' That contemplates the negotiating process
between Governors and the tribal governments, as I indicated
previously.
Nevertheless, the Department has chosen to ignore our intent and to
proceed with putting this process in place, which Congress has clearly
said it doesn't want. Since the Department has chosen to ignore the
clear intent of Congress, we are forced to stop this power grab once
again through the legislative process.
I might note over 100 compacts between States and tribes for class
III gaming have been successfully negotiated. As I pointed out
previously, five of those compacts are in place in Nevada. In only a
handful of States has the compacting process failed. I believe the
failure can be attributed to the unwillingness of Federal prosecutors
to close down illegal tribal gaming operations. Tribes running illegal
operations have no incentive to reach an agreement with States as long
as they face no consequences for their illegal gaming activities.
In California alone, tribes are operating 14,000 illegal slot
machines. It is not clear to me why the Secretary of Interior feels the
need to stack the deck even further against the interests of those
States who do not favor, as a matter of public policy, slot machines in
their States.
So, Mr. President, I hope that the Secretary will reconsider this
ill-advised proposal. If not, we will work with the Nation's Governors
and Nation's attorneys general on this legislation to block the
emasculation of States' rights.
This bill is introduced by myself, Senator Enzi, and Senator Reid.
The PRESIDING OFFICER. The bill will be received and appropriately
referred.
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