[Congressional Record Volume 145, Number 44 (Friday, March 19, 1999)]
[Senate]
[Pages S2979-S2985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR FISCAL YEAR 1999

  The PRESIDING OFFICER. The Senate will now resume consideration of S. 
544, which the clerk will report.
  The bill clerk read as follows:

       A bill (S. 544) making emergency supplemental 
     appropriations and rescissions for recovery from natural 
     disasters, and foreign assistance, for the fiscal year ending 
     September 30, 1999, and for other purposes.

  The Senate resumed consideration of the bill.
  Pending:

       Hutchison amendment No. 81, to set forth restrictions on 
     deployment of United States Armed Forces in Kosovo.
       Stevens (for Enzi) amendment No. 111, to prohibit the 
     Secretary of the Interior from promulgating certain 
     regulations relating to Indian gaming and to prohibit the 
     Secretary from approving class III gaming without State 
     approval.

  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, it is my intention to ask unanimous 
consent to adopt the Enzi amendment, or to seek a vote on it.
  I suggest the absence of a quorum for the time being.
  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for the quorum call be rescinded.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.
  Mr. ENZI. Mr. President, I rise to introduce this amendment to the 
Supplemental Appropriations bill with my

[[Page S2980]]

colleague, the distinguished Senator from Alabama, Mr. Sessions. This 
amendment is also cosponsored by Senator Grams of Minnesota, Senator 
Bryan, Senator Lugar, Senator Reid, Senator Voinovich, and Senator 
Brownback. This amendment has one very important purpose: to ensure 
that the rights of this Congress and all fifty states are not trampled 
on by an unelected Cabinet official.
  The amendment is simple and straightforward. It extends the current 
moratorium on the Secretary of the Interior's ability to finalize the 
rules that were published on January 22d, 1998 until eight months after 
Congress receives the report of the National Gambling Impact Study 
Commission. Since the Commission is due to deliver its report to 
Congress no later than June 20th of this year, this moratorium would 
give Congress until as late as next February to consider the findings 
and advice of the commission we established to study the impact of 
gambling. This amendment also prohibits the Secretary of the Interior 
from approving any tribal-state gambling agreement which has not first 
been approved by the tribe and the state in question during this 
moratorium.
  Mr. President, it is imperative that the current moratorium, which 
expires on March 31st, be extended. If it is not extended and the rules 
in question are finalized, the Secretary of the Interior would have the 
ability to bypass all fifty state governments in approving casino 
gambling on Indian Tribal lands.
  Mr. President, this is the fourth time in two years the Senate has 
had to deal with this issue of Indian gambling, and I regret that an 
amendment is once again necessary on this year's Supplemental 
Appropriations bill. However, I believe it is imperative that Congress 
considers the recommendations of our own commission on gambling before 
allowing an unelected Cabinet official to make a major policy change in 
the area of casino gambling on Indian Tribal lands.
  For the last two years, I have offered amendments to the Interior 
appropriations bills prohibiting Secretary Babbitt from approving any 
new tribal-state gambling compacts that had not first been approved by 
the State in accordance with the Indian Gaming Regulatory Act. Both of 
those amendments passed the Senate on voice votes. Both of these 
amendments were agreed to by the House in Conference. Only at the 
eleventh hour during negotiations with the White House was the length 
of the moratorium on last year's bill shortened to 6 months. The 
message we sent to the Interior Department through these amendments was 
clear. Congress does not believe it is appropriate for the Secretary of 
the Interior to bypass Congress and the states in an issue as important 
as whether or not casino gambling will be allowed within the state 
borders.
  Mr. President, for the past two years when we have debated this issue 
there have been lobbyists who have tried to paint this amendment as a 
Las Vegas protection bill. There are some lobbying groups that are 
trying that same tactic again this year. I want everyone to be 
perfectly clear on this point. This amendment is designed primarily for 
those states that do not allow gambling--particularly those that do not 
allow electronic gambling and especially those states that do not allow 
slot machines. The interest in this amendment from gambling states 
stems simply from these members sincere desire to have the Indian 
Gaming Regulatory Act, or IGRA, enforced. Those states which have 
decided through their state legislatures or through the initiative 
process that they want casino gambling have also established 
regulations and procedures to monitor this activity. This amendment 
does not in any way minimize the serious need for proper enforcement of 
existing law.

  Mr. President, the Chairman of the Indian Affairs Committee has 
introduced legislation to amend the Indian Gaming Regulatory Act. His 
committee has scheduled a hearing later this month to listen to 
testimony from a number of the parties involved in this debate. I 
applaud the senior Senator from Colorado for providing this forum. He 
has offered to consider my thoughts and recommendations as the 
committee goes through the proper legislative process of considering 
changes to existing law, and I look forward to providing some thoughts 
I have on possible changes to IGRA. I believe this is the proper manner 
to consider major changes to existing law. The committee should hold 
hearings and listen to the views of all the major parties involved, 
report a bill, and have a debate in the Senate and House on what 
legislation is most appropriate to fix any problems with the current 
statute.
  In contrast with this process, Secretary Babbitt is attempting to 
bypass Congress and all fifty states with his proposed rules. This is a 
slap in the face to Congress, to all the State governments, and to all 
the Indian Tribes which have negotiated legitimate Tribal-State 
compacts with the States in which they are located. The Secretary's 
rules effectively punish those tribes which have played by the rules, 
and as such, will open the floodgates to an approval process based more 
on political influence than on proper negotiations between the states 
and the tribes. Who will be the winners under Secretary Babbitt's new 
regime? Will it be the Tribes that donate enough money to the right 
political party? In contrast, our amendment will make sure that the 
unelected Secretary of the Interior, Bruce Babbitt, won't single-
handedly change current law. This amendment will ensure that any change 
to IGRA is done the right way--legislatively.
  Actually, the timing of Secretary Babbitt's attempt to delegate 
himself new authority is rather ironic. Last March, Attorney General 
Janet Reno requested an independent counsel to investigate Secretary 
Babbitt's involvement in denying a tribal-state gambling license to an 
Indian Tribe in Wisconsin. Although we will have to wait for 
Independent Counsel Carol Elder Bruce to complete her investigation 
before any final conclusions can be drawn, it is evident that serious 
questions have been raised about Secretary Babbitt's judgment and 
objectivity in approving Indian gambling compacts.
  The very fact that Attorney General Reno believed there was specific 
and credible evidence to warrant an investigation should be sufficient 
to make this Congress hesitant to allow Secretary Babbitt to grant 
himself new trust powers that are designed to bypass the states in the 
area of Tribal-State gambling compacts. Moreover, this investigation 
should have taught us an important lesson: we in Congress should not 
allow Secretary Babbitt, or any other Secretary of the Interior, to 
usurp the rightful role of Congress and the states in addressing the 
difficult question of casino gambling on Indian Tribal lands.

  Mr. President, the Secretary has not given any indication in the 11 
months since the independent counsel was appointed that he should be 
trusted with new, self-appointed trust responsibilities over Indian 
Tribes. On February 22d of this year, United States District Judge 
Royce Lamberth issued a contempt citation against Secretary Bruce 
Babbitt and Assistant Secretary of the Interior for Indian Affairs, 
Kevin Gover, for disobeying the Court's orders in a trial in which the 
Interior Department and the Bureau of Indian Affairs were sued for 
mismanagement of American Indian trust funds.
  In his contempt citation, Judge Lamberth stated, and I quote,

       The court is deeply disappointed that any litigant would 
     fail to obey orders for production of documents, and then 
     conceal and cover up that disobedience with outright false 
     statements that the court then relied upon. But when that 
     litigant is the federal government, the misconduct is even 
     more troubling. I have never seen more egregious misconduct 
     by the federal government.

This conduct has raised such concern that both the Indian Affairs 
Committee and the Energy Committee have held hearings to call Secretary 
Babbitt to task for his mismanagement of these funds and his disregard 
for the rulings of a federal court. The Secretary's continued violation 
of his trust obligations to Indian Tribes should serve as a wake-up 
call to all of us in the Senate. This is not the time to allow the 
Secretary to delegate to himself new, unauthorized, powers.
  I should add that lobbyists for the various tribes and 
representatives in the White House have made it abundantly clear that 
Secretary Babbitt fully intends to finalize his proposed rules once the 
current moratorium expires. Our only way to stop this effort is to 
attach another amendment on this Emergency Supplemental Appropriations 
bill. This is a real emergency!

[[Page S2981]]

 Let me assure you, if Secretary Babbitt has his way, there will be no 
need for the Tribes to resolve problems involving gambling and IGRA in 
and with their States.
  I do believe that this issue could be resolved with hearings and a 
bill--actual legislation from Congress. But those hearings won't happen 
as long as the tribes anticipate the clout of a Secretary's rule that 
bypasses the states. Yes, the courts have ruled that current law--which 
was passed by Congress, not an appointed Secretary--gives an edge in 
the bargaining process to the States. But that process has worked. If 
there is a need to change that process, it should only be changed by a 
bill passed by Congress--not by rule or regulation.
  I must stress that if we do not maintain the status quo, there will 
never be any essential involvement by the states in the final decision 
of whether to allow casino gambling on Indian Tribal lands. There will 
be no compromise reached. The Secretary will be given the right to 
bypass us, the Congress of the United States, and to run roughshod over 
the states.
  Again, I would like to stress that this amendment does not amend the 
Indian Gaming Regulatory Act, but holds the status quo for another 
eleven months. Three years ago, Congress voted to establish a national 
commission to study the social and economic impacts of legalized 
gambling in the United States. One of the aspects the commission is 
currently analyzing is the impact of gambling on tribal communities. 
This commission is now winding down its work and is set to deliver its 
report to Congress no later than June 20th of this year.

  It is significant that this commission--the very commission Congress 
created for the purpose of studying gambling--sent a letter to 
Secretary Babbitt last year asking him not to go forward with his 
proposed rules. I think it would be wise of this body to follow the 
advice of the very commission we created to study the issue of 
legalized gambling.
  I want to emphasize again that we are the body that asked for this 
commission. We created the commission to look at all gambling. The 
American taxpayers are already paying for the study. The commission is 
nearing the end of its work. We need to let them finish. They have 
asked Secretary Babbitt not to make any changes while they do their 
work. My amendment would give them that time.
  The Judicial Branch has already preserved the integrity of current 
law. This amendment supports that. The President has twice approved my 
amendment, in the FY98 Interior appropriations bill, and in the FY `99 
Omnibus Appropriations bill. I'm asking my colleagues to take the same 
``non-action'' once again. The Committee on Indian Affairs must play a 
very important role here. They need to hold hearings and write 
legislation which specifically addresses this issue and then put it 
through the process. They will have time to do that if this amendment 
is agreed to. This amendment would support giving the Indian Affairs 
Committee and Congress, as a whole, time to develop an appropriate 
policy.
  Mr. President, the Enzi-Sessions amendment is strongly endorsed by 
the National Governor's Association.
  This amendment is also supported by the National Association of 
Attorneys General. We have also received a number of letters from 
individual state Attorneys General in support of this amendment. This 
amendment is also supported by the National League of Cities.
  I want to point out that this amendment does not affect any existing 
Tribal-State compacts. It does not, in any way, prevent states and 
Tribes from entering into compacts where both parties are willing to 
agree on class III gambling on Tribal lands within a state's borders. 
This amendment does ensure that all the stakeholders must be involved 
in the process--Congress, the Tribes, the States, and the 
Administration.

  Mr. President, a few short years ago, the big casinos thought Wyoming 
would be a good place to gamble. The casinos gambled on it. They spent 
a lot of money. The even got an initiative on the ballot. They spent a 
lot more money trying to get the initiative passed. I became the 
spokesman for the opposition. When we first got our meager organization 
together, the polls showed over 60 percent of the people were in favor 
of gambling. When the election was held casino gambling lost by over 62 
percent--and it lost in every single county of our state. The 40 point 
swing in public opinion happened as people came to understand the issue 
and implications of casino gambling in Wyoming. That's a pretty solid 
message. We don't want casino gambling in Wyoming. The people who vote 
in my state have debated it and made their choice. Any federal 
bureaucracy that tries to force casino gambling on us will only inject 
animosity.
  Why did we have that decisive of a vote? We used a couple of our 
neighboring states to review the effects of their limited casino 
gambling. We found that a few people make an awful lot of money at the 
expense of everyone else. When casino gambling comes into a state, 
communities are changed forever. And everyone agrees there are costs to 
the state. There are material costs, with a need for new law 
enforcement and public services. Worse yet, there are social costs. 
And, not only is gambling addictive to some folks, but once it is 
instituted, the revenues can be addictive too. But I'm not here to 
debate the pros and cons of gambling. I am just trying to maintain the 
status quo so we can develop a legislative solution, rather than have a 
bureaucratic mandate.
  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, communities, and families are seriously 
impacted by the expansion of casino gambling on Indian Tribal lands. 
Therefore, a state's popularly elected representatives should have a 
say in the decision about whether or not to allow casino gambling on 
Indian lands. This decision should not be made unilaterally by an 
unelected cabinet official. Passing the Enzi-Sessions amendment will 
keep all the interested parties at the bargaining table. By keeping all 
the parties at the table, the Indian Affairs Committee will have the 
time it needs to hear all the sides and work on legislation to fix any 
problems that exist in the current system. I urge my colleagues to 
stand up for the constitutional role of Congress--and for the rights of 
all fifty states--by supporting this amendment.
  Mr. President, I ask unanimous consent that the letters I referenced 
be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                          National Gambling Impact


                                             Study Commission,

                                   Washington, DC, August 6, 1998.
     Hon. Bruce Babbitt,
     Secretary, U.S. Department of the Interior,
     Washington, DC.
       Dear Secretary Babbitt: As you are aware, the 104th 
     Congress created the National Gambling Impact Study 
     Commission to study the social and economic impacts of 
     legalized gambling in the United States. Part of our study 
     concerns the policies and practices of tribal governments and 
     the social and economic impacts of gambling on tribal 
     communities.
       During our July 30 meeting in Tempe, Arizona, the 
     Commission discussed the Department's ``by-pass'' provision 
     for tribes who allege that a state had not negotiated for a 
     gaming compact in good faith. The Commission voted to 
     formally request the Secretary of the Interior to stay the 
     issuance of a final rule on Indian compacting pending 
     completion of our final report. On behalf of the Commission, 
     I formally request such a stay, and trust you will honor this 
     request until you have had an opportunity to review the 
     report which we intend to release on June 20, 1999. Thank you 
     for your consideration.
           Sincerely,
                                                     Kay C. James,
     Chairman.
                                  ____



                              National Governors' Association,

                                   Washington, DC, March 16, 1999.
     Hon. Trent Lott,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Thomas A. Daschle,
     Minority Leader, U.S. Senate,
     Washington, DC.
       Dear Senator Lott and Senator Daschle: We are writing on 
     behalf of the National Governors' Association to urge you to 
     co-sponsor and support the Indian gaming amendment to the 
     Supplemental Appropriations bill sponsored by Senator Michael 
     B. Enzi (R-Wyo.) and Senator Jeff Sessions (R-Ala.). This 
     amendment would extend the current moratorium on the 
     secretary of the U.S. Department of the Interior using 
     federal funds for approving tribal-state compacts that have 
     not been approved by the state, as required by law. The 
     amendment would also prohibit the secretary from promulgating 
     a

[[Page S2982]]

     regulation or implementing a procedure that could result in 
     tribal Class III gaming in the absence of a tribal-state 
     compact or from going forward with any proposed rule on this 
     matter in the near future.
       The National Governors' Association is currently in 
     discussions with Indian tribes and the U.S. Departments of 
     Interior and Justice about negotiations on amendments to the 
     Indian Gaming Regulatory Act of 1988. Meetings have already 
     been held in Denver, Colorado and Oneida, Wisconsin. 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. 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 to exercise objective judgment in 
     disputes between states and tribes. To avoid protracted 
     litigation, we respectfully urge Congress to adopt the Enzi/
     Sessions amendment to extend the current moratorium and 
     prohibit the secretary from issuing a final rule.
       Thank you for your support of this amendment. Please 
     contact us if you have any questions about our position on 
     this matter, or call Tim Masan of the National Governors' 
     Association at 202/624-5311.
           Sincerely,
     Governor Thomas R. Carper, Delaware.
     Governor Michael O. Leavitt, Utah.
                                  ____

                                           National Association of


                                            Attorneys General,

                                   Washington, DC, March 15, 1999.
     Hon. Michael B. Enzi,
     Hon. Jeff Sessions,
     U.S. Senate, Washington, DC.
       Dear Senators Enzi and Sessions: We write in support of 
     your proposed amendment to the FY '99 Emergency Supplemental 
     Appropriations Bill, which would extend the existing 
     moratorium on the Secretary of the Interior's proposed 
     regulations on Indian gaming.
       The Attorneys General continue to believe that there is no 
     statutory authority for the Secretary's proposed procedures 
     to allow tribes to obtain gaming compacts from Interior 
     rather than by negotiations with the states. We believe that 
     only amendments to the Indian Gaming Regulatory Act can 
     create the power the Secretary asserts, and we believe that 
     such amendments should occur only by way of agreement between 
     states, tribes and federal interests.
       Continuation of the existing moratorium on the proposed 
     procedures will be a strong incentive for discussions on 
     amendments, while allowing the moratorium to lapse would be 
     likely to end the opportunity for mutually acceptable changes 
     in the Act to emerge and instead set off another lengthy bout 
     of litigation. The consensus of the Attorneys General is that 
     discussions are preferable to litigation, and that 
     continuation of the moratorium for as long as is necessary is 
     the best incentive to achieve that goal.
           Sincerely,
     Nelson Kempsky,
       Executive Director, Conference of Western Attorneys 
     General.
     Christine Milliken,
       Executive Director and General Counsel, National 
     Association of Attorneys General.
                                  ____



                                    National League of Cities,

                                   Washington, DC, March 16, 1999.
     Hon. Ted Stevens,
     Chairman, Committee on Appropriations,
     U.S. Senate, Washington, DC.
     Hon. Robert C. Byrd,
     Ranking Member, Committee on Appropriations,
     U.S. Senate, Washington, DC.
       Dear Chairman Stevens and Senator Byrd: I am writing to you 
     on behalf of the National League of Cities (NLC) to urge you 
     again to support the Enzi/Sessions amendment to the FY '99 
     Interior Emergency Supplemental Appropriations Bill which 
     seeks to extend the moratorium on the implementation of 
     procedures by the U.S. Secretary of the Interior until on or 
     about February 20, 2000 or eight months after the national 
     Gambling Impact Study Commission issues its report to 
     Congress. It is of the utmost importance for Congress to hear 
     and digest the Commission's findings prior to permitting any 
     new regulations from becoming final. The current moratorium 
     will expire on March 31, 1999.
       NLC urges support of the Enzi/Sessions amendment in order 
     to maintain the status quo of the Indian Gaming Regulatory 
     Act (IGRA) and slow the creation of new trust land. While 
     further legislation is required to remove the power of the 
     Interior Secretary to administratively create enclaves that 
     would be exempt from state and local regulatory authority, 
     passage of this amendment would be an important first step in 
     this process.
       Because passage of the Enzi/Sessions amendment would slow 
     the creation of new trust land in one narrow set of 
     circumstances, NLC urges support of this amendment as a first 
     step. The concept of allowing an appointed federal official 
     to overrule and ignore state and local land use and taxation 
     laws through the creation of trust lands flies in the face of 
     federalism and intergovernmental comity.
       The membership of the NLC has adopted policy which declares 
     that: ``lands acquired by Native-American tribes and 
     individuals shall be given corporate, not federal trust, 
     property status.'' This policy is advocated ``in order that 
     all lands may be uniformly regulated and taxed under 
     municipal laws.''
       The Supreme Court has ruled that provisions of the Indian 
     Gaming Regulatory Act, 25 U.S.C. 2701 et seq. (IGRA) violate 
     certain constitutional principles that establish the 
     obligations, immunities and privileges of the states. The 
     Interior Department appears to be determined to implement the 
     remaining provisions of IGRA despite the fact that the 
     Supreme Court decision really requires a congressional re-
     examination of the IGRA statute and the more general topic of 
     trust land designation. For these reasons, the NLC strongly 
     urges Congress to extend the current moratorium, as proposed 
     by the Enzi/Sessions amendment at least until eight months 
     after the National Gambling Impact Study Commission issues 
     its report to Congress, or February 20, 2000.
           Sincerely,
                                              Clarence E. Anthony,
     Mayor, South Bay, Florida.
                                  ____



                                          Christian Coalition,

                                     Washington, DC, July 9, 1998.

  Protect States' Rights--Vote for the Enzi/Sessions Amendment to the 
                      Interior Appropriations Bill

       Dear Senator: When the Senate considers the FY '99 Interior 
     appropriations bill, an amendment sponsored by Senator Enzi 
     (WY) and Senator Sessions (AL) is expected to be offered. 
     This amendment would protect states' rights in negotiating 
     tribal-state compacts, especially when negotiating casino 
     gambling.
       Under the Indian Gaming Regulatory Act, every state has the 
     right to be directly involved in tribal-state compacts, 
     without Federal interference. Every state also has the right, 
     as upheld by the Supreme Court in the Seminole Tribe of 
     Florida v. Florida decision, to raise its 11th Amendment 
     defense of sovereign immunity if a tribe tries to sue the 
     state for not approving a casino compact. However, in the 
     wake of the Seminole decision, the Department of Interior has 
     created new rules whereby a tribe can negotiate directly with 
     the Secretary of Interior on casino gambling compacts and 
     bypass a state's right to be involved. These new rules are a 
     gross violation of states' rights. An unelected cabinet 
     member should not be given sole authority to direct the 
     internal activities of a state, especially with regards to 
     casino gambling contracts.
       Christian Coalition is also very concerned with the severe 
     social consequences of casino gambling. There is much 
     evidence that the rise of casino gambling leads to a rise in 
     family breakdown, crime, drug addiction and alcoholism. With 
     such staggering repercussions, it is vital that Tribal-State 
     gambling compacts remain within each individual state and not 
     be commandeered by an unelected federal official.
       The Enzi/Sessions amendment would prohibit the Secretary of 
     Interior, during fiscal year 1999, from establishing or 
     implementing any new rules that allow the Secretary to 
     circumvent a state in negotiating a tribal-state compact when 
     the state raises its 11th amendment defense of sovereign 
     immunity. It also prohibits the Secretary from approving any 
     tribal-state compact which has not first been approved by the 
     state.
       Christian Coalition urges you to protect states' rights and 
     vote for the Enzi/Sessions amendment to the FY '98 Interior 
     appropriations bill.
           Sincerely,

                                            Jeffrey K. Taylor,

                                                Acting Director of
                                             Government Relations.

  Mr. CAMPBELL. Mr. President, I am opposed the Enzi-Reid amendment on 
Indian gaming because it will continue the ``stand-off'' that exists 
between the tribes and states, preventing them from reaching fair 
gaming agreements.
  There are members in the Chamber who are downright against gaming. 
That is not what this debate is about.
  Under Federal law, tribes are limited to the types of gaming allowed 
under the laws of the State in which they reside. In my own State of 
Colorado as an example, there are two tribes, the Southern Ute and the 
Ute Mountain Ute. They are limited to slot machines and low-stakes 
table games, just as the other gaming towns in Colorado.
  In Utah, State law prohibits all gaming: tribal, non-tribal or 
otherwise. The intention of the Federal law, IGRA, was that in States 
where gaming is limited or prohibited, tribes would be limited or 
prohibited from operating gaming as well.
  But today's debate is about whether a Governor of a State can limit a 
type of business activity to certain groups simply by refusing to 
negotiate. That is unfair and un-American.
  There are many tribes and States that have sat down and negotiated 
such agreements that are binding and effective.
  There are some States that refuse to negotiate at all with tribes--
leaving

[[Page S2983]]

those tribes without the ability to conduct gaming and without the 
ability to generate much-needed revenues.
  This is the core problem: whether accomplished through legislation, 
through the kind of secretarial procedures we are talking about today, 
or whether through tribal-State negotiations, these impasses should be 
brought to an end.
  Let's not forget how we got here. In 1987, the Supreme Court ruled in 
Cabazon that unless a State prohibited gaming entirely, such as Utah 
and Hawaii now do, the State's regulations would not apply to gaming 
conducted on Indian lands within that State.
  This caused a clamor by the States and a year later the Congress 
responded by passing the Indian Gaming Regulatory Act.
  This act was a compromise and for the first time gave State 
governments a role in what kind of gaming would occur on Indian 
reservations within a State's borders.
  In 1996, the High Court ruled in Seminole that tribes cannot sue 
States and require them to negotiate for gaming compacts. Some States, 
have used the Seminole case to refuse to talk to tribes completely.
  That is unfair at the very least. As my colleagues know, I am a big 
supporter of tribal-State negotiations on matters from business 
development, to jurisdictional issues, to taxes. If it is good enough 
for tribes to have to negotiate, it is good enough for States as well.
  So while I think that each State's public policy should determine the 
scope of all gaming conducted in that State, I also believe the current 
State of the law gives States what is in reality a Veto over tribes in 
this field.
  I was here in 1988, in fact, and helped write the IGRA legislation, 
and I can tell you it was never the intent of Congress to provide such 
a veto.
  I should point out to my colleagues that in many cases non-Indian 
gaming is promoted and even operated by State governments, so there is 
an element of competition. I believe some States have refused to 
negotiate in order to preserve their monopoly on gaming.
  To begin to address this situation, the Department of Interior has 
proposed a process that is based on the IGRA statute. Though the 
process does need refinement, I do not believe the secretary should be 
stopped from developing alternative approaches to these impasses.
  Coming from a Western State, I am as supportive as anybody in this 
chamber of States rights, but those who say this process overrides the 
States are wrong.
  Under the proposal, if a State objected to a decision made by the 
Interior Secretary, that State could challenge that decision in Federal 
court.
  For those who fear the department is acting without oversight, I 
point out that Congress will have the authority to review any proposed 
regulations before they take effect.
  As the proposal comes before the authorizing committees, any new 
regulations will get a careful review and if those regulations are 
found to be unacceptable, they simply will not pass. We will legislate 
a new approach if they do not pass.
  I urge my colleagues to vote against this amendment and allow the 
regulatory and legislative process to work.
  I yield the floor, Mr. President.
  Mr. INOUYE. Mr. President, I rise in opposition to the amendment 
proposed by Senators Enzi, Sessions, Gramms, Bryan, Lugar, Reid, 
Voinovich and Brownback, which would impose a moratorium on the 
Interior Secretary's authority to promulgate final regulations or to 
issue a notice of proposed rulemaking related to procedures which would 
provide a means for securing a tribal-state compact governing the 
conduct of class III gaming on Indian lands.
  Mr. President, in 1988, I served as the primary sponsor of the bill 
that was later enacted into law as the Indian Gaming Regulatory Act. 
That Act provides a comprehensive framework for the conduct of gaming 
on Indian lands, including a means by which the state and tribal 
governments, as sovereigns, may enter into compacts for the conduct of 
class III gaming on tribal lands.
  The Act further provides that should a state and tribal government 
reach an impasse in the negotiations that would otherwise lead to a 
tribal-state compact, a tribal government or a state government could 
initiate a legal action in a federal district court pursuant to which a 
court could: (1) rule on the parties' substantive interpretations of 
law that gave rise to the impasse, thereby resolving the matter; or (2) 
order the parties to either resume negotiations or enter into a process 
of mediation.
  However, in the intervening years, the United States Supreme Court 
has ruled that a state may assert its sovereign immunity to suit if a 
legal action is initiated by a tribal government, thereby divesting a 
federal court of its jurisdiction, and that the Congress lacks the 
authority to waive a state's Eleventh Amendment immunity to suit.
  Since that time, various members of the Committee on Indian Affairs 
have proposed an array of alternatives to the Act's compacting process, 
but each time, either the states or the tribes have opposed these 
measures. So the Interior Secretary stepped into the breach, and 
invited comments on his authority to promulgate rules for an 
alternative means of securing the authority to conduct class III gaming 
on Indian lands.
  This has been a constructive effort on the Secretary's part, for 
which he is to be commended.
  Mr. President, twenty-one states have entered into compacts with 
tribal governments over the last eleven years. There are only a few 
states in which tribal-state negotiations have been frustrated, and 
this amendment effectively precludes those tribal governments that have 
yet to secure a compact, from exploring an alternative route, as 
prescribed by the Secretary, and gives the states an absolute veto 
power over tribal gaming--a result that the Act was clearly intended to 
avoid.
  Not only does this amendment cut off the rights that tribes have 
under the Supreme Court's ruling in California v. Cabazon Band of 
Mission Indians, the amendment ties the Secretary's authority to the 
submittal of a Commission report that has no legal on these matters. 
The National Gambling Impact Study Commission was authorized to examine 
and assess all forms of gaming in the United States, as well as 
gambling-related issues, including the conduct of state lotteries.
  Mr. President, there are many of us in the Congress who are opposed 
to gaming, and as Indian country well knows, I include myself in the 
ranks of those members. Hawaii is one of only two states in our Union 
that prohibits all forms of gaming. But I don't see anyone in this body 
proposing to impose a moratorium on the conduct of state lotteries 
until eight months after the Commission submits its report to the 
Congress.
  Nonetheless, tribal government-sponsored gaming is most analogous to 
the lotteries operated by state governments. Federal law--the Indian 
Gaming Regulatory Act--clearly and unequivocally provides that tribal 
gaming revenues may only be used to support the provision of 
governmental services by tribal governments to reservation residents--
both Indian and non-Indian.
  Mr. President, I must take exception to some of the representations 
that have been made about this amendment. For instance, that the 
amendment ``protects States' rights without harming Indian Tribes''.
  A right to conduct gaming free of any State involvement was confirmed 
by the United State Supreme Court in May of 1997. Let us be clear about 
this--what this amendment does is take away that right.
  The proponents of this amendment also assert that their amendment 
would maintain ``the status quo of the Indian Gaming Regulatory Act''. 
However, we should also equally clear about this--this amendment does 
not preserve the status quo. Rather it strips tribal governments of 
rights that have been confirmed by the Supreme Court, and rather than 
preserving the status quo, it vests the states with a right they never 
had under the rulings of the Supreme Court or any other Federal law--
namely, a veto power over the conduct of gaming on tribal lands--lands 
and activities over which the states do not have the right to exercise 
their jurisdiction. This is what the Supreme Court has ruled. This 
amendment would subvert the rulings of the Supreme Court in this area, 
and I believe our colleagues in the Senate

[[Page S2984]]

should be aware that the amendment does precisely that.
  I would urge my colleagues to reject this amendment.
  Mr. SESSIONS. Mr. President, I thank the Senator from Wyoming for 
allowing me to introduce this important amendment with him. I want to 
congratulate him for his good work on an issue that is, at its heart, a 
matter of great concern to those of us who believe that the Federal 
Government often goes too far in exerting its will on the individual 
States. I think that the legislation that we have adopted today is good 
legislation that recognizes the importance of protecting the ability of 
States to regulate gambling within their borders.
  Allow me to briefly share some of my thoughts on the importance of 
this amendment. As Attorney General of Alabama, I cosigned a letter 
with 25 other Attorneys General that was sent to the Secretary of the 
Interior regarding his promulgation of the rules at issue today. Every 
one of the Attorneys General who signed this letter did so because we 
had come to the same legal conclusion: the Secretary of the Interior 
does not have the authority to take action to promulgate regulations 
allowing class III gambling in this manner. In fact, I believe that if 
the Secretary of the Interior were to attempt to finalize this rule and 
take action, he would immediately be sued by States throughout this 
country in what would amount to expensive and protracted litigation. I 
feel the Secretary would lose these suits, and that this amendment 
offers us the opportunity to prevent such a waste of resources on both 
the State and Federal level from occurring.
  This is an important issue for my State of Alabama, which has one 
federally recognized tribe and which has not entered into a tribal-
State gambling compact. The citizens of Alabama have consistently 
rejected the notion of allowing casino gambling within the State. If 
the Secretary of the Interior is allowed to unilaterally provide for 
class III casino gambling for this tribe, where the State has not 
agreed to enter into a compact and against the expressed will of the 
people, he will also be unilaterally deciding to impose great burdens 
on local communities throughout Alabama. This is because the one 
federally recognized tribe in our State owns several parcels of 
property, and it is likely that once casino gambling was established in 
one area it would spread to others.
  Let me share with you a letter that the Mayor of Wetumpka, whose 
community is home to one of these parcels of property, wrote me in 
reference to the undue burdens her town would face if the Secretary 
were to step in and authorize casino gambling. Mayor Glenn writes:

       Our infrastructure and police and fire departments could 
     not cope with the burdens this type of activity would bring. 
     The demand for greater social services that comes to areas 
     around gambling facilities could not be adequately funded. 
     Please once again convey to Secretary Babbitt our city's 
     strong and adamant opposition to the establishment of an 
     Indian gaming facility here.

  Mayor Glenn's concerns about the costs to her community if the 
Secretary were able to exert this kind of authority have been seconded 
by other communities. Let me share with you an editorial that appeared 
in the Montgomery Advertiser. Montgomery is the state capital, and is 
located just a few miles from Wetumpka. The Advertiser wrote:

       Direct Federal negotiations with tribes without State 
     involvement would be an unjustifiably heavy-handed imposition 
     of authority on Alabama. The decision whether to allow 
     gambling here is too significant a decision economically, 
     politically, socially to be made in the absence of extensive 
     State involvement. A casino in Wetumpka--not to mention the 
     others that would undoubtedly follow in other parts of the 
     State--has implications far too great to allow the critical 
     decision to be reached in Washington. Alabama has to have a 
     hand in this high stakes game.

  Mr. President, the author of this editorial is correct. We should not 
allow the Secretary of the Interior to promulgate rules giving himself 
the authority to impose drastic economic, political and social costs on 
our local communities.
  I would also like to address another issue in connection with the 
regulations the Secretary of the Interior has proposed. If the 
Secretary is allowed to exert this kind of power, he will be in a 
position to enrich selected tribes, potentially by millions of dollars, 
simply by stroking a pen. I do not think this is proper. This is a 
powerful capability. Imagine the conflict of interests that could arise 
as tribes lobby the Secretary to either approve, or disapprove, 
requests for class III casino gambling facilities. Indeed, the current 
Secretary of the Interior has already had his actions in similar 
instances brought under investigation to see if departmental decisions 
were influenced by campaign donations. This is unseemly, and unsound. I 
think we should ensure that States remain a vital part of the 
negotiating process to add legitimacy to decisions that are made.
  Mr. President, this amendment has broad, bipartisan support. It has 
been supported by the National Association of Governors, the National 
Association of Attorneys General, the Christian Coalition and the 
National League of Cities. It is a reasonable, limited approach to this 
problem and, on a more fundamental level, ensures the proper respect 
for the role of States in deciding these issues. It reflects my public 
policy belief that gambling decisions should be made on a rational 
basis by the people of the State who would have to live with the 
results of that activity, rather than by the Federal Government. I am 
proud to be a cosponsor of this legislation, I welcome its inclusion in 
the Supplemental Appropriations legislation and I urge my colleagues to 
fight to preserve this provision during the conference negotiations 
with the House.
  Mr. DOMENICI. Mr. President, last year, despite opposition from me, 
Senator Campbell, Chairman of the Senate Committee on Indian Affairs 
and Senator Inouye, Vice-Chairman of our committee, the Enzi amendment 
succeeded in suspending Secretarial authority to establish a regulatory 
route for Indian gaming compacts until March 31, 1999. This prohibition 
prevents the Secretary of the Interior from proceeding with a 
regulatory route for tribes who have asked states to negotiate compacts 
and find the state to be unwilling.
  Tribes lost their right to sue states under the Indian Gaming 
Regulatory Act, IGRA, in 1996, when the Supreme Court, in the Florida 
Seminole case, determined that IGRA was unconstitutional in its 
provisions allowing tribes to sue states. The Supreme Court upheld 
states rights under the 11th Amendment.
  If a state refuses to negotiate for compacts and that state allows 
gambling by any person for any purpose (all do in some form, except 
Utah and Hawaii), the Secretary of the Interior would have an 
alternative route to compacts, essentially negotiated through his 
Department, where he also has trust responsibility for Indian tribes.
  New Mexico Indian tribes are opposed to the Enzi amendment, even 
though there is no immediate effect in New Mexico. As Governor Milton 
Herrera of Tesuque Pueblo wrote, ``Section 2710 (d)(7)(B)(vii) of IGRA 
specifically allows tribes to go directly to the Secretary and ask for 
alternative procedures to conduct Class III gaming.''
  The Governor also objects to Congressional action on this issue 
without a hearing and as a violation of Senate Rule 16, which prohibits 
authorizing legislation in an appropriations bill.
  Governor Herrera goes on to say,

       Gaming is to Indian tribes what lotteries are to state 
     governments. Indian gaming revenues are used to fund 
     essential government services including law enforcement, 
     health care services, aid for children and elderly, housing 
     and much-needed economic development. Through gaming, tribal 
     governments have been able to bring hope and opportunity to 
     some of this country's most impoverished people. Contrary to 
     popular opinion, gaming has not made Indian people rich; it 
     has only made some of us less poor.

  As written, the Enzi amendment before us today would delay any 
Secretarial actions to develop alternative regulations until 8 months 
after the expected report from the National Commission on Gambling 
(June 1999), or until February of the year 2000. If this amendment 
fails, lawsuits are expected over whether the Secretary has the legal 
right to develop these regulations that essentially skirt states rights 
to object to compacts.
  Mr. President, given the delicate balances between sovereign states 
and tribes in IGRA, I would rather see a judicial determination of the 
Secretary's

[[Page S2985]]

rights under IGRA to develop such regulations. Like Governor Herrera 
has pointed out, without a hearing, it is difficult for the Senator to 
make this judgment. For these reasons, I remain opposed to the Enzi 
amendment.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I urge the adoption of the amendment. I 
ask for a voice vote on the amendment.
  THE PRESIDING OFFICER. If there be no further debate, the question is 
on agreeing to the amendment.
  The amendment (No. 111) was agreed to.
  Mr. STEVENS. Mr. President, I move to reconsider that vote and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. STEVENS. Mr. President, 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.

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