[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for the quorum call be rescinded.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
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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
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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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