[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.
                                 ______