[Congressional Record Volume 144, Number 35 (Wednesday, March 25, 1998)]
[Senate]
[Pages S2553-S2563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SUPPLEMENTAL APPROPRIATIONS FOR NATURAL DISASTERS AND OVERSEAS
PEACEKEEPING EFFORTS FOR FISCAL YEAR 1998
The Senate continued with the consideration of the bill.
The PRESIDING OFFICER (Mr. Hagel). The Senator from Alaska.
Mr. STEVENS. The Senator from Wyoming has an amendment. I would like
him, at this time, to offer it and ask for its consideration so we can
set it aside and bring it up after the Wellstone amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Will the Senator send his amendment to the desk and ask
for its consideration? We will take it up after the amendment of Mr.
Wellstone, which is the next amendment.
The PRESIDING OFFICER. The Senator from Wyoming.
Amendment No. 2133
(Purpose: To prohibit the Secretary of the Interior from promulgating
certain regulations relating to Indian gaming activities)
Mr. ENZI. I have an amendment at the desk and ask for its
consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wyoming [Mr. Enzi], for himself and Mr.
Bryan, Mr. Reid and Mr. Sessions, proposes an amendment
numbered 2133.
[[Page S2554]]
Mr. STEVENS. Mr. President, I ask that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, insert the following:
SECTION 1. PROHIBITION.
Notwithstanding section 11(d)(7)(B)(vii) of the Indian
Gaming Regulatory Act (25 U.S.C. 2710(d)(7)(B)(vii)), the
Secretary of the Interior shall not--
(1) promulgate as final regulations, the proposed
regulations published on January 22, 1998, at 63 Fed. Reg.
3289; or
(2) issue a notice of proposed rulemaking for, or
promulgate, any similar regulations to provide for procedures
for gaming activities under the Indian Gaming Regulatory Act
(25 U.S.C. 2701 et seq.), in any case in which a State
asserts a defense of sovereign immunity to a lawsuit brought
by an Indian tribe in a Federal court under section 11(d)(7)
of that Act (25 U.S.C. 2710(d)(7)) to compel the State to
participate in compact negotiations for class III gaming (as
that term is defined in section 4(8) of that Act (25 U.S.C.
2703(8))).
Mr. STEVENS. Mr. President, I ask unanimous consent this amendment be
considered immediately after the amendment presented by the Senator
from Minnesota, for which there is a time agreement already.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 2128, As Modified
The PRESIDING OFFICER. Under the previous order, the Senator from
Minnesota is recognized for up to 30 minutes.
The amendment (No. 2128, as modified) is as follows:
At the appropriate place, add the following:
SEC. . ADVISORY COMMITTEE ON IMF POLICY.
(a) In General.--The Secretary of the Treasury shall
establish an International Monetary Fund Advisory Committee
(in this section referred to as ``Advisory Committee'').
(b) Membership.--The Advisory Committee shall consist of 8
members appointed by the Secretary of the Treasury, after
appropriate consultations with the relevant organizations, as
follows:
(1) at least 2 members shall be representatives from
organized labor.
(2) at least 2 members shall be representatives from
nongovernmental environmental organizations.
(3) at least 2 members shall be representatives from
nongovernmental human rights or social justice organizations.
(c) Duties.--Not less frequently than every six months, the
Advisory Committee shall meet with the Secretary of the
Treasury to review and provide advice on the extent to which
individual IMF country programs meet requisite policy goals,
particularly those set forth as follows:
(1) in this Act;
(2) in Article I (2) of the Fund's Articles of Agreements,
to promote and maintain high levels of employment and real
income and the development of the productive resources of all
members;
(3) in Section 1621 of P.L. 103-306, the Frank/Sanders
amendment on encouragement of fair labor practices;
(4) in Section 1620 of P.L. 95-118, as amended, on respect
for, and full protection of, the territorial rights,
traditional economies, cultural integrity, traditional
knowledge, and human rights of indigenous peoples;
(5) in Section 1502 of P.L. 95-118, as amended, on military
spending by recipient countries and military involvement in
the economies of recipient countries;
(6) in Section 701 of P.L. 95-118, on assistance to
countries that engage in a pattern of gross violations of
internationally recognized human rights; and
(7) in Section 1307 of P.L. 95-118, on assessments of the
environmental impact and alternatives to proposed actions by
the International Monetary Fund which would have a
significant effect on the human environment.
(d) Inapplicability of Termination Provision of The Federal
Advisory Committee Act.--Section 14(a)(2) of the Federal
Advisory Committee Act shall not apply to the Advisory
Committee.
Mr. WELLSTONE. Mr. President, I will try not to take 30 minutes.
Since the manager of the bill supports this amendment, if we want to do
it on voice vote, if that will be better for colleagues, I will be
pleased to do it that way as well.
Mr. STEVENS. Mr. President, I welcome that opportunity. I want to say
Senators ought to be on notice we will get to the Enzi amendment
sooner, and I thank the Senator.
Mr. WELLSTONE. Mr. President, this amendment says that the Treasury
Secretary shall appoint an advisory committee, composed of eight
members, at least two of whom are from organized labor, two from
nongovernment environmental groups, and two from nongovernmental human
rights or social justice organizations. This is an advisory group on
IMF policy, which the Senator in the Chair right now has worked very
hard on. I know that.
This advisory group would meet at least twice a year to advise the
Treasury Secretary on IMF's compliance with existing statutory
requirements relating to IMF promotion in a variety of different areas:
High levels of income and employment in other countries, fair labor
practices, indigenous people's rights, reductions in military spending,
respect for human rights, and sensitivity to the environmental impact
of IMF policies.
The advisory committee shall meet with the Treasury Secretary at
least every 6 months to review and provide advice on IMF compliance
with these mandates.
There is no legislative mandate. All the Treasury Secretary has to do
is meet twice per year with the committee to hear their views on IMF
compliance with existing mandates.
Let me explain to my colleagues why I bring this amendment to the
floor. We spent, yesterday, altogether 30 minutes in debate on IMF. We
are talking about, roughly speaking, $17 billion to go to IMF. We are
talking about countries in Asia--I have heard my colleague from Alaska
say this very forcefully--that are really right now in economic
trouble. We are talking about a lot of economic pain. I agree--I am an
internationalist--what happens in these countries will dramatically
affect people in our country as well. There is no question about it.
But I want to suggest to colleagues that the question is whether or
not the IMF, as I look at the record of the IMF, has been helpful or
not helpful in helping these economies and helping the people in these
countries. What happens in some of the Asian countries will
dramatically affect the lives of people in our country in a number of
different ways. Either people in countries like Thailand or Indonesia
will not be able to work at decent jobs, will make subminimum poverty
wages--in which case, they will not be able to have the money to
purchase goods--or, because of IMF policies, which has too often been
the case, they will be forced to currency devaluation and they will try
to work themselves out of trouble through cheap exports to our country.
Either way, working families in Nebraska and Minnesota and Alaska and
around our country are hurt if we do not put some focus in the IMF.
I am about to go through existing laws and statutes that the IMF is
supposed to live up to, and I am just going to talk about a whole
history of noncompliance. We have not had this discussion on the floor
of the Senate. We should. I mean, if in fact what happens in these
Asian countries is that we have the IMF pouring fuel on the fire, if
you have an International Monetary Fund that imposes austerity measures
on these countries, depresses wage levels, has no respect
for international labor standards, shows no respect for human rights--
people cannot even organize to make a decent living, people cannot even
organize in these countries like Indonesia in order to make sure that
they are paid decent wages--then what is going to happen is, you have
countries with a populous where the vast majority of the people cannot
buy what we produce in our country. This is like economics lesson No.
1. Or--and this has happened all too often because of IMF
prescriptions--what happens is, these countries try to export
themselves out of trouble: Currency devaluation, cheap exports to our
country, and our workers and our families cannot compete.
Let me just go through some existing laws right now that are supposed
to govern the International Monetary Fund. By the way, they are in
noncompliance. The problem is, the administration has not spent much
time really insisting on accountability. The problem is, we have turned
our gaze away from this. I wish our country would be stronger in
supporting international labor standards, stronger in supporting
environmental standards, stronger in supporting basic human rights for
people. But we have not done that.
The Secretary of Treasury shall direct the United States
executive directors of the international financial
institutions to use the voice and vote of the United States
to urge the respective institution [this covers
[[Page S2555]]
the IMF] to adopt policies to encourage borrowing countries
to guarantee internationally recognized worker rights and to
include the status of such rights as an integral part of the
institution's policy dialog with each borrowing country.
I suggest to colleagues, even though we have not discussed this on
the floor of the Senate, that the IMF has ignored this law and that the
International Monetary Fund pays precious little attention to whether
or not these countries that we bail out live up to internationally
recognized labor rights.
Mr. President, to go on:
Beginning 2 years after the date of enactment of this
section, the Secretary of the Treasury shall instruct the
United States executive director of each multinational
development bank not to vote in favor of any action proposed
to be taken by the respective bank which would have a
significant effect on the human or environmental assessment
for at least 120 days before the date of the vote until an
assessment analyzing the environmental impacts of the
proposed action and alternatives to the proposed action has
been completed by the borrowing country or institution.
Again, another law that the IMF is supposed to live up to, another
relevant statute that there ought to be an environmental impact
statement. We ought to look at what these countries are doing; we ought
to look at where the money is going. These countries--or many of these
countries--are in noncompliance, and the IMF just turns its gaze away
from this, as does the United States, our Government. This is not in
the name of our people, because I think people in our country support
human rights, support respect for the environment.
Human rights title:
The U.S. Government in connection with its voice and vote
in the International Bank for Reconstruction and Development,
the International Development Association, the International
Finance Corporation, the InterAmerican Development Bank, the
African Development Bank [so on and so forth] the
International Monetary Fund, shall advance the cause of human
rights including by seeking to channel assistance toward
countries other than those whose governments engage in a
pattern [and I am quoting] of gross violations of
internationally recognized human rights such as torture or
cruel, inhumane or degrading treatment or punishment,
prolonged detention without charges, or other flagrant denial
to life, liberty and the security of person.
Mr. President, in this connection, let me point out that a labor
leader in Indonesia, Mochtar Pakpahan--we are about to provide the IMF,
and the IMF is about to provide, based upon, in part, the U.S.
contribution, Indonesia with bailout money--and this man, this labor
leader, I say to my colleagues, is in prison. Why is he in prison? He
is in prison for organizing workers in support of a higher minimum
wage, people who work for wages that don't enable them or their
families even to be able to have enough food to eat. And this man's
crime, this labor leader's crime in Indonesia is that he has organized
workers to get better wages.
I just read the statute that applies to IMF policy. The way I read
this--maybe I will read it again--is that the ``International Monetary
Fund shall advance the cause of human rights, including by seeking to
channel assistance toward countries other than those whose governments
engage in gross violations of humans rights of citizens.''
What do we think is happening in Indonesia? Does any Senator on the
floor of the Senate want to defend the Government of Indonesia for
imprisoning a labor leader?
Mr. President, I will suggest--and I will go on and read other laws
that apply to the IMF--that what is wrong with this IMF provision, the
amendment that we are going to vote on eventually, is that nowhere in
here do we have any conditions dealing with labor, human rights
standards, nowhere in here do we have any conditions dealing with
environmental standards, nowhere in here do we have any discussion
about the importance of promoting employment and higher wage levels for
the citizens of these countries.
So, it is a flawed institution. I am all for making sure these
countries do better, but I don't think the IMF is going to help these
countries do better. In fact, I think what the IMF does over and over
again is make matters worse. I look at the record in some of these
countries, and I see no evidence whatsoever that IMF policies have led
to an improvement in the living standards of people in these countries.
For the bankers, yes; for the investors, yes; and for some of these
governments which are all too often corrupt, yes, but not for the
people.
We have an IMF agreement. I know that the Chair has worked hard on
this. I know that the Senator from Alaska has been involved in this.
And that is why I come out with an amendment that is very reasonable,
because all this amendment says is, look, we have these existing
statutes, it is already law, this is what the IMF is supposed to live
up to, but we have a clear record of flagrant noncompliance.
At the very minimum, let's make sure the Secretary of the Treasury
meets with an advisory committee made up of some non-Government people
dealing with human rights, dealing with labor, dealing with the
environment at least twice a year so that we can put this on the radar
screen.
I know colleagues feel strongly that we must do something. I hope it
works out. But I have to say that on the basis of the record of the
IMF, I see no evidence whatsoever that the IMF's economic policies are
going to help the Asian countries or help the people in the Asian
countries. Instead, what I think is going to happen, since we have not
had any clear provisions with real teeth in this legislation--and the
best I can do today is to get a strong vote on this advisory committee,
and I am intending to send a message to the administration.
Secretary of the Treasury Rubin is a fine Secretary. He is skillful,
he has been gracious, and I think he is committed to doing better. It
isn't even personal, because I think he believes that we have to do
better. But in all due respect, we at the very minimum ought to begin
to put these questions on the table. We ought to put these issues on
the table. In all due respect, I say to my colleagues, I am just
telling you this is a flawed institution.
We are about to invest a lot of money in the International Monetary
Fund, which has a record of imposing economic policies on countries
which depress the living standards of most of the people in those
countries. That is the record. As a result, those people don't have the
economic power, the dollars to consume products that we make in our
country; as a result, quite often these countries barrel down the path
of exporting cheap products to our country, and, again, working
families in the United States of America pay the price.
It is a lose-lose situation. The people in Indonesia are not going to
win, the people in Thailand are not going to win, and the people in the
United States are not going to win.
Let me go on and read a few other provisions. Talking about the
International Monetary Fund, one of the goals must be to ``facilitate
the expansion and balanced growth of international trade and to
contribute thereby to the promotion and maintenance of high-level
employment and real income and to the development of productive
resources of all members as primary objectives of economic policy.''
I have to say to colleagues, I cannot believe that this is a statute
that applies to the IMF, because that is not what the International
Monetary Fund has been about. I do not know how anybody here can make
the case that the IMF's economic prescriptions for these countries have
been about promoting ``high levels of employment and real income and
the development of productive resources of all members as primary
objectives of economic policy.'' That is almost laughable. That is not
what the IMF has done.
I think what we have done is we have forfeited a historic opportunity
to strengthen the position of working people in these other countries,
to support the human rights of citizens in these other countries, to
take a look at Thailand and Indonesia, who are among the worst
offenders in Asia denying worker rights, among the worst offenders in
Asia in violating the human rights of their citizens, and, basically,
what we have on the Senate floor is silence on these questions.
Why don't we have any connection to what are, I think, the most
important factors in determining whether or not the people in these
countries are going to do well and the majority of the people in our
own country are going to do well?
[[Page S2556]]
As I look at these provisions--and I will go back and I will
summarize this amendment--this amendment essentially instructs the
Treasury Secretary to appoint an advisory committee composed of eight
members, at least two of which will be from organized labor, two from
nongovernmental environmental groups and two from nongovernmental human
rights or social justice organizations. This advisory committee will
meet with the Secretary of the Treasury twice a year, and they will
talk about IMF policy, whether or not the IMF is in compliance or not
with existing statutory requirements relating to IMF promotion of high
levels of income, employment, fair labor practices, indigenous people's
rights, reductions in military spending, respect for human rights and
sensitivity to the environmental impact of IMF policies.
The advisory committee shall meet with the Treasury Secretary at
least every 6 months to review and to provide advice on IMF compliance
with these mandates.
I will say one more time, by way of conclusion, the IMF is not in
compliance with these mandates, not in compliance with the existing
laws that apply to IMF, not in compliance on internationally recognized
labor rights, not in compliance of respect for indigenous people, not
in compliance in human rights, not in compliance with sensitivity to
environmental concerns. We have a golden opportunity, and we are
missing it. That is why I am not going to vote for this amendment that
deals with International Monetary Fund assistance to these countries to
make things much better.
I believe that what we are about to do, the amendment we are going to
adopt on the International Monetary Fund, will, in fact, not help those
countries in Asia, not help the peoples of those countries that are
struggling, and will end up hurting not only people in countries like
Indonesia, but also will hurt families in our country as well.
Why in the world don't we have more to say about a brutal
dictatorship in Indonesia? Why don't we have more to say about the ways
in which this dictator crushes people in his own country? Why don't we
have more to say about the depressing of living standards of people in
Indonesia? Why don't we have more to say about all the ways in which
those people, not having decent jobs and decent wages, cannot buy what
our working people produce? Why don't we have more to say about the way
in which the IMF comes in, bails out the bankers, bails out the
investors, insists on currency devaluation, insists on austerity and,
therefore, forces those countries into currency devaluation and to
exporting cheap products into our country, thereby hurting, again,
working families in the United States of America? Not a word about
that.
I think the Senate is in serious error for not focusing like a laser
beam on these concerns. But I will thank my colleagues for at least
supporting this amendment, which I will fight very hard to keep in
conference committee, because I really do believe that if we can have
this advisory committee which will meet with the Secretary of the
Treasury twice a year and which will raise these issues twice a year
and which will discuss with the Secretary and analyze with the
Secretary whether or not the IMF is in compliance with all of the
statutory requirements relating to environmental protection, relating
to human rights, relating to international labor standards, I think
this will at least be a step forward.
I am, on the one hand, just saying to colleagues that I think the
provisions we have out here in relation to the IMF, the investment we
make in the International Monetary Fund is mistaken. I think we miss a
tremendous opportunity to exert leadership, the United States of
America exerting leadership in behalf of working people in other
countries, in behalf of human rights, in behalf of the environment. We
are not doing that. But at the very least, I hope my colleagues will
support this amendment.
I said to my colleague from Alaska that if the Senate is, in its
wisdom, going to support this amendment, then I am pleased to have a
vote right now.
Mr. STEVENS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I see the Senator from Minnesota has
finished his comments on his amendment. I have had no request for time.
So if the Senator is prepared to vote, I am prepared to yield back the
time allocated to our side. I so yield back the time.
Mr. WELLSTONE. I am prepared to vote.
Mr. STEVENS. The Senator said we will have a voice vote on this
amendment.
The PRESIDING OFFICER. The question is on agreeing to the Wellstone
amendment No. 2128, as modified.
The amendment (No. 2128), as modified, was agreed to.
Mr. STEVENS. Mr. President, I move to reconsider the vote by which
the amendment was agreed to.
Mr. WELLSTONE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. STEVENS. Mr. President, it is my understanding that the next
order of business will be the amendment of the Senator from Wyoming. I
ask unanimous consent that that be the pending business.
The PRESIDING OFFICER. The Senator is correct, the pending business
is the amendment of the Senator from Wyoming.
Mr. STEVENS. Is it possible, Mr. President--I know the Senator from
Wyoming is for the amendment and I understand the Senator from Hawaii
is opposed to the amendment. Can we have a time agreement on the
amendment?
Mr. ENZI. Mr. President, 40 minutes on a side; 80 minutes equally
divided will be agreeable. We were just talking about reducing that by
10 minutes a few moments ago, but I have not had a chance to check with
the other side.
Mr. STEVENS. Seventy minutes equally divided. I say to the Senator,
that is agreeable, but we have a time already set for the vote on the
Helms amendment. Mr. President, parliamentary inquiry. If we enter into
a time agreement, what happens to the vote at 6:30?
The PRESIDING OFFICER. We would suspend consideration on the Enzi
amendment until we have the vote on the Helms amendment, and after
that, we would resume debate on the Enzi amendment.
Mr. STEVENS. Mr. President, I ask unanimous consent that we enter
into such an agreement, 70 minutes equally divided on this amendment
and no second-degree amendments be in order to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Wyoming.
Amendment No. 2133
Mr. ENZI. Mr. President, I call up amendment No. 2133.
The PRESIDING OFFICER. That is the pending question.
Privilege of the Floor
Mr. ENZI. Mr. President, I ask unanimous consent that Andrew Emrich
and Katherine McGuire be granted the privilege of the floor during the
course of the debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. Mr. President, I rise to offer an amendment with my
colleagues, the distinguished Senators from Nevada, Senator Bryan and
Senator Reid, and the Senator from Alabama, Senator Sessions.
This bipartisan amendment touches an issue that is very important to
me, and that is the issue of States rights. This amendment is very
simple and straightforward. It would prohibit the Secretary of the
Interior from finalizing the proposed rules published on January 22 of
this year. It would also prohibit the Secretary from proposing or
promulgating any similar regulations. In effect, this amendment would
prohibit the Secretary of the Interior from bypassing the States in the
process of approving class III Indian casino gambling.
Mr. President, I must admit that I am disappointed this amendment is
necessary at all. Last year, I offered an amendment, along with a
number of my colleagues, on the Interior appropriations bill. We
debated that on the floor. That prohibited the Secretary of the
Interior from approving any new tribal-State gambling compacts which
had not first been approved by the State in accordance with existing
law.
Although that amendment provided only a 1-year moratorium, the intent
of
[[Page S2557]]
the amendment was clear. Congress does not believe that it is
appropriate for the Secretary of the Interior to bypass the States or
to spend money bypassing the States in an issue as important as whether
or not casino gambling will be allowed within a State's borders.
The debate bore out that intent. I think it was clearly understood.
It ended with a voice vote. It was passed by wide bipartisan support.
Unfortunately, the Secretary did not think, evidently, that Congress
was serious when we passed the amendment last year.
On January 22 of this year, the Department of the Interior, Bureau of
Indian Affairs, published proposed regulations which would allow the
Secretary of the Interior to bypass the State's authority in the
compacting process. In effect, these proposed regulations would allow
Secretary Babbitt to approve casino gambling agreements with the Indian
tribes without the consent or approval of the States. This is precisely
what Congress prohibited in last year's amendment. Evidently, Secretary
Babbitt did not think we were serious.
Mr. President, this amendment is designed to ensure that the proper
process is followed in the tribal-State compacting process. There may
be those who argue that changes need to be made to the Indian Gambling
Regulatory Act. I would not necessarily disagree with my colleagues on
that point. However, if any changes are to be made, the changes must
come from Congress, not from an unelected Cabinet official. By
proposing these regulations, the Secretary of the Interior has shown an
amazing disregard for Congress and for all 50 States.
Mr. President, I have to admit that I find the timing of the
Secretary's actions ironic. Just recently, the Attorney General
appointed an independent counsel to investigate Secretary Babbitt's
actions in regard to approving and denying tribal-State gambling
compacts from Indian tribes in Wisconsin.
Although we will have to wait for the investigation to take its
course, it is evident that serious questions have been raised about the
Secretary of the Interior's objectivity in approving Indian gambling
compacts. We should not allow the Secretary of the Interior to usurp
the rightful role of Congress and the States in addressing the
difficult question of Indian casino gambling.
Mr. President, this amendment has the strong endorsement of the
National Governors' Association. At their annual convention this year,
the Governors adopted a resolution strongly opposing the Secretary's
proposed regulations. I have a copy of that letter. I ask unanimous
consent that the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Governors Association,
Washington, DC, March 25, 1998.
Hon. Trent Lott,
Senate Majority Leader, U.S. Senate, Washington, DC.
Hon. Ted Stevens,
Chair, Appropriations Committee, U.S. Senate, Washington, DC.
Hon. Thomas A. Daschle,
Senate Minority Leader, U.S. Senate, Washington, DC.
Hon. Robert C. Byrd,
Ranking Member, Appropriations Committee, U.S. Senate,
Washington, DC.
Dear Majority Leader Lott, Minority Leader Daschle,
Chairman Stevens, and Senator Byrd: This letter is to confirm
Governors' support for the Indian gaming-related amendment
offered by Senators Michael B. Enzi, Richard H. Bryan, and
Harry Reid to the Senate supplemental appropriations bill.
This amendment prevents the secretary of the U.S. Department
of the Interior from promulgating a regulating or
implementing a procedure that could result in tribal Class
III gaming in the absence of a tribal-state compact, as
required by law.
The nation's Governors strongly believe that no statute or
court decision provides the secretary of the U.S. Department
of the Interior with authority to intervene in disputes over
compacts between Indian tribes and states about casino
gambling on Indian lands. Such action would constitute an
attempt by the Secretary of the Interior to preempt states'
authority under existing laws and recent court decisions and
would create an incentive for tribes to avoid negotiating
gambling compacts with states.
Further, the secretary's inherent authority includes a
responsibility to protect the interests of Indian tribes,
making it impossible for the secretary to avoid a conflict of
interest or exercise objective judgment in disputes between
states and tribes.
We urge your support of the Enzi/Bryan/Reid amendment.
Please contact us if you have any questions about our
position on these matters, or call Larry Magid of NGA, at
202/624-7822.
Sincerely,
Raymond C. Scheppach.
Mr. ENZI. Mr. President, I also have a letter from the Western
Governors' Association, signed by the Governor of Alaska, who is the
chairman of that association, again, reiterating their concerns about
bypassing the States rights. I ask unanimous consent that that letter
also be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Western Governors' Association,
Washington, DC, 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
Governors' 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 to 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.
These are difficult issues, and we understand the Secretary
interpreting 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 he 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,
Tony Knowles,
Governor of Alaska, Chairman.
Mr. ENZI. Mr. President, I also ask unanimous consent to have printed
in the Record a resolution passed by the National Association of
Attorneys General at their spring meeting.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association of Attorneys General
Resolution; Opposing Proposed Department of Interior Regulations
Regarding Secretarial Procedures for Class III Gaming
Whereas, Congress enacted the Indian Gaming Regulatory Act,
25 U.S.C. Sections 2701 to 2721 (1998)(``IGRA''), creating a
statutory basis for the regulation of gaming by Indian
tribes; and
[[Page S2558]]
Whereas, IGRA provided the States a role in the regulation
of class III gaming through a process utilizing compacts; and
Whereas, IGRA provided a remedial process for tribes
seeking to allege that a State has failed to negotiate for
class III gaming in good faith; and
Whereas, this statutory remedial process could not be
initiated until a federal court determined that the State had
failed to negotiate in good faith; and
Whereas, on March 27, 1996, the Court in Seminole Tribe v.
Florida, 116 S.Ct. 1114 (1996), held that Congress could not
abrogate the States' 11th Amendment immunity pursuant to the
powers granted to it in the Indian Commerce Clause, thereby
closing the door to the remedial process in IGRA unless a
State consents to being sued; and
Whereas, on May 10, 1996, the Bureau of Indian Affairs
published an Advanced Notice of Proposed Rulemaking in
response to the decision in Seminole Tribe v. Florida,
seeking comment on, among other things, whether and under
what circumstances the Secretary of the Interior is empowered
to prescribe procedures for the conduct of class III gaming
when a State interposes its 11th Amendment immunity to suit
under IGRA; and
Whereas, some 22 State Attorneys General have signed a
letter concluding that ``It is clearly contrary to law and
inappropriate for the Secretary of the Interior to take
action to promulgate regulations allowing class III gambling
as suggested'' in the Advanced Notice of Rulemaking; and
Whereas, on January 22, 1998, the Department of the
Interior, Bureau of Indian Affairs, published proposed
regulations governing class III gaming procedures;
Now, Therefore Be It Resolved That the National Association
of Attorneys General:
(1) opposes promulgation of the proposed rules by the
Department of the Interior, Bureau of Indian Affairs, on the
basis that the Department lacks the legal authority to
promulgate such regulations, as more fully set forth in
General Butterworth's letter of June 28, 1996 to Secretary
Babbitt (see attached);
(2) opposes the proposed regulations because they empower
the Secretary of the Interior to determine which games are
``permitted'' in a given state, as that term is used in IGRA,
a determination that requires an interpretation of state law
which should be the exclusive province of the states
themselves;
(3) opposes the proposed regulations because they empower
the Secretary of the Interior to determine whether a State
has negotiated with a Tribe in good faith, even though the
Secretary has an acknowledged trust responsibility for the
Tribes, thus creating a clear conflict of interest;
(4) opposes the proposed regulations because, in direct
defiance of the Supreme Court's holding in Seminole Tribe,
116 S. Ct. at 1133, they ``rewrite the statutory scheme in
order to approximate what [the Department] think[s] Congress
might have wanted had it known that section 2710(d)(7) [the
lawsuit provision] was beyond its authority''; and
(5) authorizes the executive director and General Counsel
of NAAG to transmit copies of this resolution to the
Department of the Interior, Bureau of Indian Affairs, before
the close of the comment period for the proposed regulations
on April 22, 1998, and to other interested individuals,
members of Congress, and agencies, as appropriate.
Mr. ENZI. Mr. President, finally, I ask unanimous consent to have
printed in the Record relevant excerpts from a 1996 letter from
Attorney General Butterworth from Florida and signed by 22 State
Attorneys General. This letter explains that the Attorneys General
believe any attempts to circumvent the States in the compacting process
violates the language and meaning of the Indian Gambling Regulatory
Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State of Florida,
Office of Attorney General,
June 28, 1996.
Re comments on establishing departmental procedures to
authorize class III gaming on Indian lands when a State
raises an eleventh amendment defense to suit under the
Indian Gaming Regulatory Act, Vol. 61 Fed. Reg. No. 92,
pg. 21394 (5/10/96).
Hon. Bruce Babbitt, Secretary of the Interior, U.S.
Department of the Interior, Washington, DC.
Dear Secretary Babbitt: Please accept this letter as the
comments of the undersigned Attorneys General relating to the
above referenced Advance Notice of Proposed Rulemaking. The
undersigned, on behalf of our respective states, have a vital
interest in the proper execution of the Indian Gaming
Regulatory Act and in gambling activities in our states
generally. In Seminole Tribe v. Florida, 116 S.Ct. 1114
(1996), the Supreme Court upheld the Eleventh Circuit's
opinion that Congress had no authority to abrogate the
Eleventh Amendment immunity of the States in the passage of
IGRA and that the doctrine of Ex parte Young could not be
used to circumvent the States' immunity. The court did not
however address the issue raised by Part V of the lower court
opinion regarding the remaining remedy for Tribes faced with
States allegedly not bargaining in good faith, as required by
IGRA.
introduction and background
It is uniformly the legal view of the undersigned state
Attorneys General that, absent congressional authorization,
the Secretary of Interior has no authority to prescribe class
III tribal gaming procedures when a state raises an Eleventh
Amendment bar to a ``bad faith'' lawsuit under IGRA. Further,
there is no legal question but that if the Secretary were to
assume such power, without congressional authorization, the
Secretary would be constrained by existing federal law,
including the federal Gambling Devices (Johnson) Act, 15
U.S.C. 1175, from prescribing procedures that include any
form of electronic or electro-mechanical gambling devices.
Section 23 of IGRA also bars the Secretary from prescribing
any gambling procedures that are inconsistent with ``State
laws pertaining to the licensing, regulation, or prohibition
of gambling.'' Section 11(d)(6) of IGRA lifts the prohibition
of the Johnson Act only if there is a tribal-state compact in
a state where ``the gambling devices are legal'' under state
law. If the Secretary were to adopt procedures governing
gaming procedures inconsistent with or abrogating state law,
it would be in violation of federal law.
Nor can the Secretary legally ``fuzz'' the statutory
distinction between a tribal-state compact and post-mediator
secretarial procedures--the Congress gave these matters
legally distinct and meaningful definitions. Congress
intended secretarial procedures in lieu of a compact to occur
only when a state has been adjudged to have negotiated, or to
have refused to negotiate, in ``bad faith.'' The raising of
an Eleventh Amendment defense by a State is not itself ``bad
faith''--indeed, the Constitution permits it, as the Supreme
Court has noted. Certainly the Secretary, who holds a trust
responsibility to the tribes, is in no position to judge a
State to be in ``bad faith.'' Nor can the Secretary re-write
the statute to provide for a new form of ``secretarial
procedures,'' designed to apply only when there has been no
finding of ``bad faith.'' If there were the law Congress
intended, it could have simply provided for the Secretary of
Interior to provide for tribal gaming procedures and
regulations in all cases as a matter of federal law.
An analysis of the legal error in Part V of the Eleventh
Circuit's Seminole opinion clearly demonstrates these points.
In the opinion that was appealed to the Supreme Court, the
Eleventh Circuit Court of Appeals included dicta stating that
if a State invoked its Eleventh Amendment immunity, then a
Tribe could apply directly to the Secretary for the
promulgation of procedures for class III gambling in that
state. By request of the Supreme Court, the Solicitor General
filed a brief for the United States addressing the petition
and cross petition in the Seminole case. With respect to the
remedy suggested by the appeals court, he stated at page 9,
``The state petitioners in Nos. 94-35 and 94-219 seek
review of the court of appeals' expression of the view that,
if a state does not consent to suit by a Tribe, the Secretary
of the Interior would have the authority to prescribe
regulations to govern the conduct of gaming on the Tribe's
Indian lands. That discussion in the opinion below is dicta,
since the court ordered the case dismissed on sovereign
immunity grounds[.]'' (emphasis added)
Because the appeals court held that the case should be
dismissed on sovereign immunity grounds, the dicta in part V
of the opinion does not provide any legal authority for the
Department of the Interior to act. In contrast to the dicta
of the Eleventh Circuit, the Ninth Circuit Court of Appeals
stated in Spokane, that:
``The Eleventh Circuit was concerned by the regulatory void
that it might leave by invalidating the IGRA's provisions for
federal judicial enforcement. Those concerns illustrate the
problem caused when state sovereignty is injected into the
federal scheme. The Eleventh Circuit reasoned that a void was
not necessary because the provisions of the statute
authorizing the Secretary of Interior to impose regulations
would come into effect once a state asserted immunity from
suit.
When that occurred the Secretary of the Interior would, in
the Eleventh Circuit's view, remain authorized to impose
regulations for Class III gaming. Seminole Tribe, 11 F.3d at
1029. In our view, however, such a result would pervert the
congressional plan. This is because the Secretary of the
Interior under the statute is to act only as a matter of last
resort, and then only after consulting with the court
appointed mediator who has become familiar with the positions
and interests of both the tribes and the states in court
directed negotiations. 25 U.S.C. Sec. 2710(d)(7)(B)(iv)-
(vii). The Eleventh Circuit's solution would turn the
Secretary of the Interior into a federal czar, contrary to
the congressional aim of state participation.''--Spokane
Tribe of Indians v. Washington State, 28 F.3d 991, 997 (C.A.9
(Wash.) 1994) (emphasis added)
Any proposal to allow a direct by-pass to the Secretary is
inconsistent with Congressional intent for two reasons: (1)
it allows the tribes to circumvent State participation,
thereby not recognizing a legitimate interest of the States;
and (2) it ignores IGRA's design to include the states. It
should be clearly understood that the proposed remedy has the
effect of taking the states completely out of the IGRA
process. A Tribe would be able to request a compact with a
demand it knows the State cannot accede to, thereby
[[Page S2559]]
guaranteeing that there will be no compact within 130 days,
and providing the ``predicate'' for a ``bad faith'' lawsuit.
This is possible because IGRA does not require that the Tribe
negotiate in good faith. At the end of 180 days, with no
progress toward a compact, the Tribe may file suit. If the
State raises its Eleventh Amendment defense, the Tribe will
petition directly to the Secretary of the Interior,
undoubtedly for the gaming activities it knew the State could
not agree to, including, in most cases, gambling devices and
activities criminally prohibited in the state. State
participation has thereby been rendered meaningless.
The proposed Secretarial remedy is inconsistent with the
plain language of the statute and is an effort to grant a
remedy to the Tribes not found in IGRA. The Eleventh Circuit
erroneously stated that the new remedy is consistent with the
intent of Congress. By creating the remedy, the Eleventh
Circuit sacrificed the States' role in an effort to
effectuate its notion of the broad intent of Congress.
``Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is
the very essence of legislative choice--and it frustrates
rather than effectuates legislative intent simplistically to
assume that whatever furthers the statute's primary objective
must be the law.''--Rodriguez v. United States, 480 U.S. 522,
526 (1987). The process and the remedy set forth in
Sec. 2710(d)(7) was: ``[T]he result of the Committee
balancing the interests and rights of the tribes to engage in
gaming against the interests of the States in regulating such
gaming.'' S. Rep. 100-446, S. 555, 100th Cong., 2d Sess., 14.
The Eleventh Circuit even recognized that IGRA was passed:
``[A]fter contentious debate concerning the appropriate state
role in the regulation of Indian gaming.''--Seminole Tribe,
11F.3d at 1019.
The Eleventh Circuit's attempt to legislate a new remedy
and the Department of the Interior's proposal to implement
such a remedy are inappropriate and it should be left to
Congress to reevaluate the balance of interests and purposes
of this act in fashioning a new remedy, if one is needed. The
Court of Appeals is not free to fashion remedies that
Congress has specifically chosen not to extend. Landgraf v.
U.S.I. Film Products, ____U.S.____. n 36, 62 U.S.L.W. 4255,
4267 n. 36 (April 26, 1994); see, Northwest Airlines, Inc. v.
Transportation Workers. 451 U.S. 77, 97 (1981). Nor can the
Secretary fashion such a remedy.
The legal error underlying the suggested process can be
shown by the facts of the Seminole case itself. The Seminole
Tribe requested a compact and proceeded to file suit against
the State of Florida with a demand for slot machines and
gambling activities criminally prohibited by Florida. The
District Court found that the State had not failed to
negotiate in good faith. Accordingly, the Tribe was not
entitled to mediation or the ``secretarial procedures'' that
follow a court-appointed mediator's involvement. However,
under the suggested ``Secretarial remedy,'' the Seminole
Tribe could apply to the Secretary for gaming procedures,
even in the face of a finding of good faith on the part of
the State. This locks the State out of the process, contrary
to the intent of Congress.
The states have a legitimate interest in what transpires on
Indian reservations within their borders. It is clear that
the patrons of Indian gambling operations are not tribal
members, but generally non-Indian members of the surrounding
communities. Further, the States have an interest in
protecting all state citizens.
* * * * *
conclusion
The undersigned Attorneys General strongly believe that it
is clearly contrary to law and inappropriate for the
Secretary of the Interior to take action to promulgate
regulations allowing class III gambling as suggested. If
Congress determines that there needs to be a change in IGRA
based on the Supreme Court's holding in Seminole, then it is
the appropriate forum for discussion of the balancing of
interests among the state, federal and tribal governments.
``Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is
the very essence of legislative choice--and it frustrates
rather than effectuates legislative intent simplistically to
assume that whatever furthers the statutes primary objective
must be the law.''--Rodriguez v. United States, 480 U.S. 522,
526 (1987).
Thank you for the opportunity to comment on the proposed
rulemaking.
Sincerely,
Robert A. Butterworth, Attorney General of Florida; Jeff
Sessions, Attorney General of Alabama; Winston Bryant,
Attorney General of Arkansas; Daniel E. Lungren,
Attorney General of California; Grant Woods, Attorney
General of Arizona; Richard Blumenthal, Attorney
General of Connecticut; M. Jane Brady, Attorney General
of Delaware; Alan G. Lance, Attorney General of Idaho;
Frank J. Kelly, Attorney General of Michigan; Joseph P.
Mazurek, Attorney General of Montana; Frankie Sue Del
Papa, Attorney General of Nevada; Margery S. Bronster,
Attorney General of Hawaii; Scott Harshbarger, Attorney
General of Massachusetts; Mike Moore, Attorney General
of Mississippi; Don Stenberg, Attorney General of
Nebraska; Jeffrey R. Howard, Attorney General of New
Hampshire; Betty D. Montgomery, Attorney General of
Ohio; Thomas W. Corbett, Jr., Attorney General of
Pennsylvania; Jeffrey L. Armestoy, Attorney General of
Vermont; William U. Hill, Attorney General of Wyoming;
Drew Edmondson, Attorney General of Oklahoma; Jeffrey
B. Pine, Attorney General of Rhode Island; Darrel V.
McGraw, Jr., Attorney General of Virginia.
Mr. ENZI. Mr. President, the rationale behind this amendment is
simple: Society as a whole bears the burden of the effects of gambling.
A State's law enforcement, social services, and communities are
seriously impacted by the expansion of casino gambling on Indian tribal
lands. Therefore, a decision about whether or not to allow casino
gambling on Indian lands should be approved by popularly elected
representatives, not by an unelected Cabinet official.
I urge my colleagues to stand up for the rights of the States and the
rights of this Congress, as popularly elected leaders, by voting for
this amendment. And, Mr. President, the chairman of the subcommittee,
Senator Gorton, also approves of the amendment. I do ask for your
consideration of that amendment.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. I thank the Senator from Wyoming for yielding me time.
I rise to endorse the comments made by Senator Enzi. In 1996, I was
the attorney general of the State of Alabama, and I was one of the 22
attorneys general that signed the letter that Senator Enzi mentioned
earlier. This letter, which was initiated under the leadership of
Attorney General Bob Butterworth of Florida, was a 13-page letter
discussing the legal reasons why the attorneys general believe that the
Secretary of the Interior ought not to be setting the gambling policies
for our various States. Why did we take this position? Because our
review of applicable law revealed to us that there was no legal basis
for the Secretary of Interior to act this way, especially in light of
the important Seminole Tribe v. Florida case decided by the U.S.
Supreme Court in 1996.
The issue of tribal gaming is a matter of extreme importance. My home
state of Alabama has consistently rejected casino gambling in the
State. We have one small Indian tribe that owns several pieces of
property in the State. If that tribe were able to go to the Secretary
of the Interior and obtain approval to build casinos on their property,
we would soon have three major, active casinos in the State of Alabama
bringing with them all the problems that are associated with casino
gaming. The tribal reservations are extremely small, however they would
impact the community to a great degree.
As the Senator from Wyoming so eloquently said, it is the States who
will bear the burdens and the responsibility and the consequences of
having the Secretary of Interior impose gambling on them. The Secretary
of the Interior should not be imposing tribal gaming decisions on the
States. In the past, the Secretary had indicated that he would prefer
not to intervene in these matters. If that is so, then he certainly
should not oppose this legislation that would prohibit his ability to
unilaterally decide state gaming issues. I think this issue is a matter
that we need to treat very significantly.
Make no mistake about it, having been involved in the process, I
learned something that is quite important, and that is just how much
money is involved. When the Secretary of the Interior, one man, can
look at one group of claimants, or favor one Indian tribe over another,
and he can then select a group and say, ``You can get a gambling
casino,'' he may have made that group hundreds of millions of dollars--
I do not mean one million, I mean hundreds of millions of dollars--and
another tribe may get nothing from that. The Secretary's ability to
make one decision which makes certain groups rich and certain groups
poor is one reason why the committee testimony concerning Mr. Babbitt's
dealing with contributions tied to Indian gaming was such a dramatic,
and unseemly, event.
So I think that is not the way public policy and gambling policy
ought to be set in America. It ought to be set on a rational basis by
the people of the State who would have to live with that
[[Page S2560]]
activity. I think Senator Enzi is correct. Similar legislation passed
once before, I think, with consent. I hope that it will again. I
believe we need to make clear that the people of our States will be the
ones to decide whether or not gambling occurs.
I would just like to share a quote from an editorial appearing in the
Montgomery Advertiser last year. In this editorial the Advertiser, the
newspaper of the capital of Alabama, says:
Regardless of whether one favors or opposes legalized
gambling on Indian lands, surely there can be little dispute
over the legitimate interest of states in having some say in
the matter, rather than having gambling instituted within
their borders through federal-level negotiations.
Respecting the role of states is fundamental to this issue, and
Senator Enzi's amendment solves the problem of Federal intrusion
created by the regulations put forward by the Secretary of Interior. I
salute Senator Enzi for his amendment, and I thank the Chair and yield
the floor.
The PRESIDING OFFICER. Who yields time?
Mr. ENZI addressed the Chair.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. I yield such time as Senator Bryan needs, the Senator from
Nevada.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. BRYAN. Mr. President, I thank you.
I am happy to yield to the distinguished Senator from Hawaii, who has
not had an opportunity to speak. If he wishes to precede me, I would be
happy to yield.
Mr. President, I think it is helpful to our colleagues if we put this
amendment in some context.
In 1988, the Congress enacted the Indian Gaming Regulatory Act. That
act says that to the extent that States permit gaming activities within
the States, that Indian tribes within those States should have the same
opportunity. Let me say that I am in support of that philosophy.
In Nevada, we have a full range of casino gaming activity. There is
no question in my State that tribes within Nevada have the same
opportunity, and, indeed, we have five compacts that have been ratified
between the Governor and the tribes in my State permitting those tribes
to conduct the same kind of activity for gaming enterprises that we
have in Nevada.
Let me give a contrast, if I may. My friend from Hawaii and our
colleagues from Utah--in those two States a determination has been made
that no form of gaming activity should be permitted, something that I
believe is a matter of public policy for those two States to make a
determination. So it is equally clear under the act that Indian tribes
would have no opportunity to participate in Indian gaming unless the
States chose to permit it because they have made a public policy not to
have any form of gaming.
In between, there are 48 other States that have adopted variations of
gaming. So there are a number of States that have entered into
compacts; that is, agreements between Governors and tribes. The Enzi-
Bryan-Reid amendment in no way impacts those States that have
previously entered into compacts. Those are valid and continue to be
effective.
What is at issue here is that some tribes, particularly in California
and Florida, have tried to force the respective Governors of those
States to permit gambling activity, which those States do not permit,
specifically in the form of slot machines. California has made a
determination that they do not, as a matter of public policy, favor
slot machines, so therefore slot machines are not permitted in
California. In Florida, the same public policy prevails. And the tribes
have sought to force those Governors to negotiate this kind of gambling
activity.
In California today, there are 40 tribes that operate 14,000 illegal
slot machines, slot machines that are not part of negotiated compacts.
Recently, the Governor of California and the Pala Band Indian Tribe
have entered into a compact that does not, Mr. President, include the
gambling activity that currently illegally exists in these 20
reservations; namely, slot machines.
What is troublesome to my colleagues who join me on this amendment
and what was of concern to the Congress in the last session is the
Secretary of the Interior has moved forward with regulations that would
say the Governors and the tribes are not the ones to determine the
scope of gaming in a given State; the Secretary of the Interior should
have that right.
So in the Interior appropriations bill that was approved last year,
we offered a provision that said, in effect, the Secretary of Interior
is prohibited from expending any money to implement a regulation which
would give to him the authority to be the final arbiter between a tribe
and a State as to what should be negotiated.
What causes our renewed concern is, the Secretary of Interior has now
begun a rulemaking process that has been out for public comment, that
is currently before the Office of Management and Budget for review,
that is doing the very sort of thing that we sought to prohibit in the
appropriations bill last year.
What this amendment does is to reaffirm the policy of the Congress
that the Secretary of Interior shall not move forward in overriding, if
you will, a determination between a Governor and the tribe as to the
scope of gaming. I am familiar with no circumstance--none--in which a
Governor today has refused to negotiate in good faith for gambling
activity on a tribal reservation that is consistent with that State's
public policy. So what we are really talking about here are tribes that
have been putting a lot of pressure on Governors to, in effect, open up
casino gaming, as the distinguished Senator from Alabama pointed out. I
believe that is a determination the States, the Governors, ought to
make.
The law is clear, once a State crosses the Rubicon and permits a form
of gaming, the tribal governments within that State should be entitled
to the same. That is fair. What is sauce for the goose is sauce for the
gander. There is no quarrel with that.
But the tribes have sought to push some of the Governors and say,
``Look, we want slot machines. Even though you do not permit that as a
matter of public policy, we believe you ought to be required to
negotiate that, and if you won't negotiate that, we will accuse you of
acting in bad faith and will go to the Secretary of Interior and have
him make that determination.''
I believe however we line up on the political spectrum in this
Chamber, that is not a decision that the Secretary of Interior ought to
be making. That is a decision which the State, as a matter of public
policy, should determine for itself--how much, how little, if any,
gaming activity should be allowed.
What our amendment does is to refine the amendment that was offered
as part of the appropriation process and goes further and says, ``Look,
you shall not go forward with this rulemaking process,'' in the context
of the appropriations for this year. I believe that is totally
consistent with what we began last year, and I believe it is something
this Chamber ought to reaffirm.
My concern is that the rate in which this rulemaking process is
proceeding is, the day after the current appropriations bill expires,
October 1, we have a regulation out there and the Secretary of Interior
will begin to make determinations as to the scope of gaming permitted
in States. May I say in the two States in question, one of them
presided over by a Democrat, one by a Republican, this is bipartisan.
Both of those Governors have resisted that. The National Governors
Association has gone on record as opposing the Secretary of Interior's
position, the National Association of Attorneys General has gone on
record as opposing it, Democrats and Republicans in both of those two
associations, because in effect the Secretary of Interior would be
allowed to preempt State public policy. That is something that I
believe none of us would want to occur.
I yield the floor.
Amendment No. 2134
(Purpose: To express the Sense of the Senate that of the rescissions,
if any, which Congress makes to offset appropriations made for
emergency items in the Fiscal Year 1998 supplemental appropriations
bill, defense spending should be rescinded to offset increases in
spending for defense programs)
Mr. BUMPERS. I ask unanimous consent I be permitted to send an
amendment to the desk, the same be immediately laid aside, and later
brought for consideration.
Mr. STEVENS. Reserving the right to object, what is the amendment?
[[Page S2561]]
Mr. BUMPERS. I will send the amendment to the desk to be set aside to
be brought up at your discretion.
Mr. STEVENS. Is this the one on which I was to have the colloquy with
the Senator from Arkansas?
Mr. BUMPERS. I will discuss that with you in just a moment.
Mr. STEVENS. The Senator has that right.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Arkansas [Mr. Bumpers] proposes an
amendment numbered 2134.
Mr. WARNER. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place insert the following:
``SEC. . SENSE OF THE SENATE WITH REGARD TO OFFSETS.
(a) Findings.--The Senate finds that--
(1) the Budget Enforcement Act contains discretionary
spending caps to limit discretionary spending;
(2) within the discretionary spending caps, Congress has
imposed firewalls to establish overall limits on spending for
non-defense discretionary programs and overall limits on
spending for defense discretionary programs;
(3) any increase in non-defense discretionary spending that
would exceed the non-defense discretionary spending caps must
be offset by rescissions in non-defense discretionary
programs;
(4) any increase in defense discretionary spending that
would exceed the defense discretionary spending caps must be
offset by rescissions in defense discretionary programs;
(5) the Budget Enforcement Act exempts emergency spending
from the discretionary spending caps;
(6) certain items funded in the FY98 supplemental
appropriations bill have been designated as emergencies and
thus are exempt from the budget cap limitations;
(7) the House of Representatives will be considering a
version of the FY98 supplemental appropriations bill that
will purportedly make rescissions to offset spending on items
that have been deemed emergencies;
(8) the rescissions included in the House of
Representatives FY98 supplemental appropriations bill will
purportedly come solely from non-defense discretionary
programs;
(b) Sense of the Senate.--It is the Sense of the Senate
that of the rescissions, if any, which Congress makes to
offset appropriations made for emergency items in the Fiscal
Year 1998 supplemental appropriations bill, defense spending
should be rescinded to offset increases in spending for
defense programs.
The PRESIDING OFFICER. The amendment is set aside.
The Senator from Hawaii has the floor.
Mr. INOUYE. Parliamentary inquiry. Is there a vote scheduled at 6:30?
The PRESIDING OFFICER. The Senator is correct; there is a vote
scheduled for 6:30.
Mr. INOUYE. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. STEVENS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Amendment No. 2130
The PRESIDING OFFICER. Under the previous order, debate on the Enzi
amendment will be suspended in order to vote on amendment No. 2130.
The question is on agreeing to the amendment of the Senator from
North Carolina, Mr. Helms.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER (Mr. Allard). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 90, nays 10, as follows:
[Rollcall Vote No. 43 Leg.]
YEAS--90
Abraham
Akaka
Allard
Ashcroft
Baucus
Bennett
Biden
Bond
Boxer
Breaux
Brownback
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Cleland
Coats
Cochran
Collins
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Domenici
Dorgan
Durbin
Enzi
Faircloth
Feingold
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kempthorne
Kerrey
Kohl
Kyl
Landrieu
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Warner
Wyden
NAYS--10
Bingaman
Dodd
Feinstein
Kennedy
Kerry
Lautenberg
Leahy
Rockefeller
Sarbanes
Wellstone
The amendment (No. 2130) was agreed to.
Mr. HELMS. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. STEVENS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. STEVENS. Mr. President, we are waiting on an agreement on what to
do with the bill for the remainder of the evening and tomorrow. I urge
Senators--again, we are making up a list. We call it a finite list. We
hope to get an agreement before we leave here that amendments, unless
they are on the list, will not be in order for this bill. So I urge
Senators to speak to their respective sides to see to it. That is the
suggestion.
I yield to the Senator from Virginia. He wants to qualify an
amendment now.
Mr. ROBB. Mr. President, I thank the Senator from Alaska.
Amendment No. 2135
(Purpose: To reform agricultural credit programs of the Department of
Agriculture, and for other purposes)
Mr. ROBB. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia (Mr. Robb) proposes an amendment
numbered 2135.
Mr. ROBB. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, add the following:
``SEC. 1. SHORT TITLE.
This section may be cited as the `Agricultural Credit
Restoration Act'.
SEC. 2. AMENDMENTS TO THE CONSOLIDATED FARM AND RURAL
DEVELOPMENT ACT.
(a) Section 343(a)(12)(B) of the Consolidated Farm and
Rural Development Act (7 U.S.C. 1991(a)(12)(B)) is amended to
read as follows:
``(B) Exceptions.--The term `debt forgiveness' does not
include--
``(i) consolidation, rescheduling, reamortization, or
deferral of a loan;
``(ii) debt forgiveness in the form of a restructuring,
write-down, or net recovery buy-out during the lifetime of
the borrower that is due to a financial problem of the
borrower relating to a natural disaster or a medical
condition of the borrower or of a member of the immediate
family of the borrower (or, in the case of a borrower that is
an entity, a principal owner of the borrower or a member of
the immediate family of such an owner); and
``(iii) any restructuring, write-down, or net recovery buy-
out provided as a part of a resolution of a discrimination
complaint against the Secretary.''.
(b) Section 353(m) of such Act (7 U.S.C. 2001(m)) is
amended by striking all that precedes paragraph (2) and
inserting the following:
``(m) Limitation on Number of Write-Downs and Net Recovery
Buy-Outs Per Borrower.--
``(I) In general.--The Secretary may provide a write-down
or net recovery buy-out under this section on not more than 2
occasions per borrower with respect to loans made after
January 6, 1988.''.
(c) Section 353 of such Act (7 U.S.C. 2001) is amended by
striking subsection (o).
(d) Section 355(c)(2) of such Act (7 U.S.C. 2003(c)(2)) is
amended to read as follows:
``(2) Reservation and allocation.--
``(A) In general.--The Secretary shall, to the greatest
extent practicable, reserve and allocate the proportion of
each State's loan funds made available under subtitle B that
is equal to that State's target participation rate for use by
the socially disadvantaged farmers or ranchers in that State.
The Secretary shall, to the extent practicable, distribute
the total so derived on a county by county basis according to
the number of socially disadvantaged farmers or ranchers in
the county.
``(B) Reallocation of unused funds.--The Secretary may pool
any funds reserved and allocated under this paragraph with
respect to a State that are not used as described in
subparagraph (A) in a State in the first 10 months of a
fiscal year with the funds similarly not so used in other
States, and may
[[Page S2562]]
reallocate such pooled funds in the discretion of the
Secretary for use by socially disadvantaged farmers and
ranchers in other States.''.
(e) Section 373(b)(1) of such Act (7 U.S.C. 2008h(b)(1)) is
amended to read as follows:
``(1) In general.--Except as provided in paragraph (2), the
Secretary may not make or guarantee a loan under subtitle A
or B to a borrower who on, 2 or more occasions, received debt
forgiveness on a loan made or guaranteed under this title.''.
(f) Section 373(c) of such Act (7 U.S.C. 2008h(c)) is
amended to read as follows:
``(c) No More Than 2 Debt Forgivenesses Per Borrower On
Direct Loans.--The Secretary may not, on 2 or more occasions,
provide debt forgiveness to a borrower on a direct loan made
under this title.''.
SEC. 2. REGULATIONS.
Not later than 90 days after the date of the enactment of
this Act, the Secretary of Agriculture shall promulgate
regulations necessary to carry out the amendments made by
this Act, without regard to--
(1) the notice and comment provisions of section 553 of
title 5, United States Code; and
(2) the statement of policy of the Secretary of Agriculture
relating to notices of proposed rule-making and public
participation in rulemaking that became effective on July 24,
1971 (36 Fed. Reg. 13804).
Mr. ROBB. Mr. President, I ask unanimous consent that the amendment
be temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBB. Mr. President, very briefly, this is an amendment to
correct a measure that was in the 1996 agriculture bill. There are $48
million in this emergency bill to provide for direct operating loans to
farmers. But most of the minority and small farmers are not able to get
to those loans because of a disqualifying provision. This corrects
that. We will try to work it out so it will be accepted when it is
taken up on the floor.
Mr. President, I rise today to offer an amendment to improve access
to the USDA's lending programs for farmers.
The emergency supplemental appropriations bill we're considering
contains enough funds to allow $48 million more money to be available
for direct operating loans. These loans are crucial to farmers,
especially in the spring, because they use the borrowed funds to buy
the seed, fertilizer and other material essential for planting, which
they repay after harvest.
Unfortunately, there are many minority and socially disadvantaged
farmers who will not have access to these critical loan funds because
of a provision in the 1996 farm bill. That provision bars a farmer--
forever--from turning to the USDA's loan programs if they have ever
defaulted previously on a federally-backed agricultural loan. This
inflexible provision permanently eliminates the farmers' access to
these loan programs, even if the cause of the previous default was the
result of racial discrimination against the farmer perpetrated by the
Federal Government, or a disaster beyond the farmer's control, or a
medical condition which affected the farmer's ability to pay.
My amendment addresses this situation.
farad
Mr. BAUCUS. Mr. President, I understand that the USDA is working
toward the release of funds relating to the competitively awarded Smith
Lever 3(d) Food Safety grants program. An eligible activity of this
program is the Food Animal Residue Avoidance Database (FARAD). The
American people are demanding higher levels of food safety, and the
FARAD program will help develop better methods of assuring the safety
of food products from our livestock sector.
The Smith Lever 3(d) Food Safety program contains a total of
$2,365,000, but it has been suggested that only $195,000 would be
available for the FARAD activities. However, I understand that FARAD is
not limited by the suggested amount of $195,000 and that additional
funds under the Smith Lever 3(d) Food Safety grants program could be
directed to FARAD as a competitive award. I further understand that no
funds under this program have been obligated for the current fiscal
year.
Mr. BUMPERS. The Senator from Montana is correct. The suggested
figure of $195,000 is not a binding cap on the funds potentially
available to FARAD in fiscal year 1998. I understand that grants under
the Smith Lever 3(d) Food Safety program will be awarded in the near
future and that proponents of the FARAD program should be advised that
additional competitive funds may be available and they may wish to
craft their applications to reflect this opportunity.
disaster assistance
Mr. CLELAND. Mr. President, I would first like to thank my
distinguished colleagues, the Chairman, Senator Stevens and Ranking
Member Senator Byrd for addressing the issue of providing relief for
Georgia disaster victims in this bill. And, to my colleague, Senator
Coverdell the Senior Senator from Georgia for his direct involvement
and for offering his amendment to see that adequate relief is obtained
for Georgia. I am proud to be a co-sponsor of his amendment. I would
also like to thank my colleague Senator Bumpers, for his skillful work
as the Ranking Member on the Agriculture Appropriations Subcommittee in
his efforts to incorporate the valuable requests for disaster
assistance into this bill.
Mr. BUMPERS. I thank the Senator.
Mr. CLELAND. I would like to follow up on the comments made yesterday
by my colleagues, Senator Cochran and Senator Coverdell with a question
to Senator Bumpers. I wanted to confirm the report that the $60 million
from the Emergency Conservation Program along with the amendment
providing an additional $50 million from the Emergency Watershed and
Flood Prevention program provided in the 1998 Emergency Supplemental
Appropriations Bill will be sufficient to fully cover the losses in
Georgia resulting from the recent flooding and tornado?
Mr. BUMPERS. My colleague from Georgia is correct. The reports from
officials at the Department of Agriculture would suggest that with an
additional $50 million, which would bring the total supplemental
appropriation for the Emergency Watershed and Flood Prevention account
to $100 million along with the $60 million allocated for the Emergency
Conservation Program, the needs of Georgia as well as the numerous
other Americans around the country who are in need of natural disaster
relief will be met.
Mr. CLELAND. I thank my colleague for his assistance. The vital funds
for disaster assistance provided in this bill will be a blessing for
those farmers in Georgia who have been so devastated by the severe
weather that they have endured for the past year. I also will be
thankful to see that relief is provided to those in the Northeast and
California as well as the many other Americans who have been victims of
natural disaster. I thank Senator Bumpers for his leadership in this
effort for the people of Georgia and all those affected.
Mr. WARNER. Mr. President, I am privileged to be the chairman of the
Subcommittee on Transportation and Infrastructure of the full Committee
on Environment and Public Works. I have been involved in the Patent and
Trademark Office space consolidation for the past 4 years. However,
this has had a much longer history of review. In August of 1995, GSA,
the Department of Commerce, and the PTO negotiated with OMB on
alternatives for proceeding to consolidation and the placement of the
PTO's expiring leases scheduled for 1996. The administration determined
that there were insufficient funds available in the President's budget
for the foreseeable future to pursue these alternatives of direct
Federal construction or an equity lease.
Let me repeat, Mr. President: That history has shown that often
construction is less expensive than the option of leasing. There is no
mystery here. The problem is, we do not have $250 million to construct
such a building. Budget constraints dictate a lease in this instance.
For this reason OMB then authorized the General Services
Administration to transmit a prospectus, pursuant to the Public
Buildings Act, to the House Transportation and Infrastructure Committee
and the Senate Environment and Public Works Committees requesting
authorization to acquire a competitively procured, 20-year operating
lease for 1,989,116 occupiable square feet (osf) to consolidate the PTO
on a Northern Virginia site within boundaries extending from the
Potomac River along the Dulles corridor. Once again, let me stress that
this is a competitively procured lease.
Mr. President, the prospectus was approved by the Senate Committee on
Environment and Public Works on October 24, 1995, and the House
Committee on Transportation and Infrastructure on November 16, 1995.
The Senate
[[Page S2563]]
Committee on Environment and Public Works carefully considered the need
for the facility, various alternatives, and the costs of each approach
before authorizing the lease procurement to be conducted by the GSA for
the PTO. Further, both Committees directed GSA to amend its Source
Selection approach to provide ``that any evaluation used for such
acquisition considers proximity to public transportation, including
MetroRail, to be a factor as important as any other non cost factor.''
I have been assured by the PTO, Senator Gregg, that prior to the
issuance of the Solicitation for Offerors (SFO), the PTO undertook a
detailed analysis and review of case law, news articles, and recent
Federal acquisitions and leases such as: the Internal Revenue Service,
the Federal Communications Commission, and the Ronald Reagan Building
etc. to identify potential problems with the PTO procurement.
In short, the analysis that the Senator seeks was performed by the
Administration in developing the prospectus, was reviewed by both the
House and Senate authorizing committees, and approved in 1995.
Furthermore, as I have already stated, the PTO and the Administration
are continuing to revalidate that analysis.
Mr. President, to date, all analysis of this procurement has shown
that under the current budget scenario, this procurement is needed by
the PTO, and is in the best interest of the taxpayers. PTO
currently resides in expired holdover leases. This is an untenable and
costly situation that must be addressed immediately.
Senator Gregg will now join in a colloquy.
As we discussed, am I correct that the current language as drafted
excludes comparison in the requested report between leasing and federal
construction?
Mr. GREGG. That is correct.
Mr. WARNER. Would the Senator also agree that the budget will not
likely enable us to proceed with any project which will be scored as a
capital investment?
Mr. GREGG. That is correct.
Mr. WARNER. Does the Senator have a view as to whether the
Appropriations Committee would be prepared to fund a lease/purchase
arrangement, given the scoring impacts that would result in such a
transaction?
Mr. GREGG. No we are not.
Mr. WARNER. Is it the Senator's understanding that a lease-purchase
would require that budget authority be scored against this project?
Where as a operating lease is only scored for the annual rent payment?
Mr. GREGG. Yes, that is my understanding.
Mr. WARNER. I thank the Senator. Is it true that this budget
authority for any lease-purchase would be scored against GSA's Federal
Buildings Fund?
Mr. GREGG. That is my understanding.
Mr. WARNER. Is it the Senator's understanding that there is no
capital available for either construction or lease-purchase of this
project? That is what the Senate Environment and Public Works Committee
was relying upon when we authorized this long-term lease.
Mr. GREGG. That is also my understanding.
Mr. WARNER. Finally, I am concerned that the study comparing the cost
versus the benefit of relocating to a new facility compares ``apples to
apples''. Therefore, it is important that such things as the cost of
space required to accommodate new staff at the PTO's existing
locations; the costs of bringing existing facilities into compliance
with current, not grandfathered, codes for life safety and
accessibility for the disabled, and the costs of providing amenities
such as day care facilities be considered as part of the costs of PTO's
remaining in its current space. Do you agree?
Mr. GREGG. I believe that these things should be considered in the
cost versus benefit analysis.
Mr. WARNER. I have taken a very active role in this matter because of
the wonderful, loyal, dedicated service of the thousands of employees
of PTO. I think our Federal Government owes them no less than the
opportunity to have a new facility to perform their valuable work, and
I hasten to say this building will largely be financed not by Federal
taxpayers funds but by funds derived from the sevices performed by the
people.
I yield the floor.
Mr. STEVENS. Mr. President, I do not know of any further amendments
on our side. There will be a managers' package. I understand Senator
Smith has an amendment, and Senator Murkowski has an amendment.
Mr. President, before we do anything more, I would suggest the
absence of a quorum and wait for the leader to come.
Mr. KENNEDY. Will the Senator withhold so I may speak briefly?
Mr. STEVENS. We have a pending matter with people entitled to speak
now if we go back on the bill. I would suggest the absence of a quorum
so we can straighten that out, and the Senator can speak. If we make
this arrangement, anyone who wants to speak may do so.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. STEVENS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________