[Congressional Record Volume 157, Number 51 (Friday, April 8, 2011)]
[Senate]
[Pages S2350-S2351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mrs. FEINSTEIN (for herself and Mr. Kyl):
S. 771. A bill to amend the Indian Gaming Regulatory Act to modify a
provision relating to gaming on land acquired after October 17, 1988;
to the Committee on Indian Affairs.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Tribal
Gaming Eligibility Act with my friend and colleague from Arizona,
Senator Jon Kyl.
This bill requires that Indian tribes demonstrate both an aboriginal
and a modern connection to the land before it can be used for gaming.
The bill responds to growing concerns and frustrations about the
number of ``off-reservation'' casinos proposals in California and
across the nation.
As of May 2010, the U.S. Department of Interior was considering 35 of
these proposals. Eleven of them are in my home State.
Casinos strain local governments, increase violent crime, and
increase bankruptcies. Gambling regulations are poorly enforced,
largely because deficit-plagued state governments have cut enforcement
staff down to the bone. Even when enforcement officials are present,
highly protective ``State Compacts,'' protect tribal casinos from true
scrutiny and legitimate oversight.
The fact is that some tribes have abused their unique right to
operate casinos by taking land into trust miles away from their
historical lands and miles away from where any tribal member resides.
This is done to produce the most profitable casino, often with little
regard to what is most beneficial to tribal members.
This unbridled reservation shopping is occurring with little to no
input from local governments or neighboring tribes.
The result: 58 casinos in California; 11 more in the approval
process; and a very real potential for an additional 50 casinos in the
coming years.
That is why I am introducing the Tribal Gaming Eligibility Act. This
legislation addresses the problems that arise from off-reservation
casinos by requiring that tribes meet two simple conditions if they
wish to game on lands acquired after the passage of the 1988 Indian
Gaming Regulatory Act.
First the tribe must demonstrate a ``substantial direct modern
connection to the land.''
Second, the tribe must demonstrate a ``substantial direct aboriginal
connection to the land.''
Simply put, tribes must demonstrate that both they and their
ancestors have a connection to the land in question.
In 2000, California voters thought they settled the question of
casino gaming when they passed Proposition 1A. This proposition
authorized the governor to negotiate gambling compacts that would make
Nevada-style casinos possible for ``federally recognized Indian tribes
on Indian lands.''
The words ``on Indian lands'' were key to Proposition 1A. This made
it clear that gaming is appropriate only on a tribe's historical lands,
and voters endorsed this bargain with 65 percent of the vote.
But fast-forward 10 years and this agreement is being put to the
test. In the last decade, the Department of the Interior has received
dozens of gaming applications; some for casinos nowhere near a tribe's
historic lands. Many of these requests have been granted and California
has become ground zero for tribal casinos. We have 58 Las Vegas style
casinos all across the State--from within miles of the Mexican border,
to within miles of the Oregon border.
The problem is only going to get worse. There are 67 tribes currently
seeking Federal recognition in California who will have the ability to
take ``initial lands'' into trust for gaming. This ``initial lands''
exemption gives landless tribes carte blanche when it comes to picking
a spot for their casino--urban areas, environmentally sensitive areas,
you name it! That is a real concern to me and my constituents.
As of May 2010, there were 11 applications for off-reservation or
restored lands casinos in California pending at the Department of the
Interior. These include projects near San Francisco, Barstow, and
Sacramento.
It also includes applications for casinos in San Diego and Riverside
Counties, where there are already 21 existing casinos.
By seeking to open casinos in urban areas close to the greatest
number of potential gamblers, instead of on historical lands, these
tribes are ignoring the will of California voters and the intent of
Congress when it passed the Indian Gaming Regulatory Act.
Unfortunately, without a legislative fix such as the Tribal Gaming
Eligibility Act, Californians have no power to stop these tribes from
opening unwanted casinos in their back yards.
But voters are still trying to make their voices heard, rejecting the
idea of reservation shopping. At one location, in Richmond, CA, a city
of nearly 100,000 in the middle of the Bay Area--a tribe proposed
taking land into trust to open a 4,000-slot-machine casino. Proponents
tout it as a major economic engine for a depressed area.
On November 2, Richmond voters made it clear how they feel: by a
margin of 58 to 42 percent, voters overwhelmingly rejected the advisory
Measure U on the Richmond casino and they elected two new city council
members who strongly oppose the casino. It was an unambiguous rejection
of this off-reservation gaming proposal.
Some people have tried to tell me that this is just a California
problem, and that we just need a California-solution. I am afraid this
is not the case.
The Department of the Interior is considering gaming applications for
tribes in Washington, Oregon, Mississippi, Nevada, and Massachusetts
just to name a few. I urge my colleagues to ask your constituents and
your community leaders if they have were consulted about these
proposals. Did they have any input? Were the needs of the cities,
counties, and neighboring tribes considered?
As a former mayor, I know the financial pressures that local
governments face, especially in these tough times. The temptation to
support large casinos can be strong. But I also know the heavy price
that society pays for the siren song of gambling. This price includes
addiction and crime, strained public services and increased traffic
congestion.
Some Indian gaming proponents, often backed by rich out-of-state
investors and gambling syndicates, would have us believe that these
off-reservation gaming establishments are a sign of growth and economic
development.
In 2006 the California Research Bureau compiled research on the
effects of casinos on communities, and they released a report entitled
Gambling in the Golden State. The results were staggering.
The development of new casinos is associated with a 10 percent
increase in violent crime and a 10 percent increase in bankruptcy
rates.
[[Page S2351]]
New casinos are also associated with an increase in law enforcement
expenditures of $15.34 per person.
California already spends an estimated $1 billion to deal with
problem-gamblers and pathological-gamblers, 75 percent of which
identify Indian casinos as their primary gambling preference.
This report confirmed what many local elected officials and community
activists already knew: casinos may create a few jobs, but they come
with a tremendous cost.
One reason for the high costs casinos is the woefully inadequate
oversight at Indian gambling facilities.
In California, gaming oversight officials are responsible for over
twice as much economic activity per inspector compared to their
counterparts in states with legalized commercial gambling. Using the
most recent data available from 2006:
California employed 180 gambling oversight officials to regulate $5.2
billion dollars in economic activity.
This means the State only employed 1 official for every $28.9 million
dollars of economic activity in the gambling industry.
By comparison, the 11 States that had legalized commercial gambling
averaged 1 oversight official per $12.1 million dollars of activity.
Furthermore, closed-door gaming compacts limit what little power
these investigators actually have. They cannot conduct unannounced
visits, they have little discretion on what penalties to enact, and
they cannot enforce their punishments when they are handed down. Quite
simply, it is a broken system.
I know that some may try to mischaracterize my legislation and say
that I am trying to limit the sovereignty of Native American tribes or
destroy their ability to undertake much needed economic development.
But I am here today to say that nothing could be farther from the
truth.
The fact of the matter is that most casinos are appropriately
placed--on historical tribal lands--and there is no need to argue about
the legitimacy of these establishments.
My legislation only deals with those proposals that are truly beyond
the scope of Congressional intent when the Indian Gaming Regulatory Act
was passed in 1988.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 771
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Gaming Eligibility
Act''.
SEC. 2. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 1988.
Section 20 of the Indian Gaming Regulatory Act (25 U.S.C.
2719) is amended--
(1) by striking the section designation and heading and all
that follows through ``(a) Except'' and inserting the
following:
``SEC. 20. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 1988.
``(a) In General.--Except''; and
(2) in subsection (b)--
(A) in paragraph (1)(B), in the matter preceding clause
(i), by inserting ``subject to paragraph (2),'' before
``lands are taken'';
(B) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively;
(C) by inserting after paragraph (1) the following:
``(2) Applicability to certain land.--
``(A) In general.--Except as provided in subparagraph (D),
effective beginning on the date of enactment of the Tribal
Gaming Eligibility Act, in addition to any other requirements
under applicable Federal law, gaming conducted pursuant to an
exception under paragraph (1)(B) shall not be conducted on
land taken into trust after October 17, 1988, by the United
States for the benefit of an Indian tribe unless the
Secretary determines, on the date the land is taken into
trust, that the Indian tribe--
``(i) has received a written determination by the Secretary
that the land is eligible to be used for gaming under this
section; and
``(ii) demonstrates--
``(I) in accordance with subparagraph (B), a substantial,
direct, modern connection to the land taken into trust, as of
October 17, 1988; and
``(II) in accordance with subparagraph (C), a substantial,
direct, aboriginal connection to the land taken into trust.
``(B) Substantial, direct, modern connection.--In making a
determination under subparagraph (A)(ii)(I) that an Indian
tribe demonstrates a substantial, direct, modern connection
to land taken into trust as of October 17, 1988, the
Secretary shall certify that--
``(i) if the Indian tribe has a reservation--
``(I) the land is located within a 25-mile radius of the
tribal headquarters or other tribal governmental facilities
of the Indian tribe on the reservation;
``(II) the Indian tribe has demonstrated a temporal
connection to, or routine presence on, the land during the
period beginning on October 17, 1988, and ending on the date
of the certification; and
``(III) the Indian tribe has not been recognized or
restored to Federal recognition status during the 5-year
period preceding the date of the certification; or
``(ii) if the Indian tribe does not have a reservation--
``(I) the land is located within a 25-mile radius of an
area in which a significant number of members of the Indian
tribe reside;
``(II) the Indian tribe has demonstrated a temporal
connection to, or routine presence on, the land during the
period beginning on October 17, 1988, and ending on the date
of the certification; and
``(III)(aa) the land was included in the first-submitted
request of the Indian tribe for newly acquired land since the
date on which the Indian tribe was recognized or restored to
Federal recognition; or
``(bb)(AA) the application to take the land into trust was
received by the Secretary during the 5-year period beginning
on the date on which the Indian tribe was recognized or
restored to Federal recognition; and
``(BB) the Indian tribe is not conducting any gaming
activity on any other land.
``(C) Substantial, direct, aboriginal connection.--In
making a determination under subparagraph (A)(ii)(II) that an
Indian tribe demonstrates a substantial, direct, aboriginal
connection to land, the Secretary shall take into
consideration some or all of the following factors:
``(i) The historical presence of the Indian tribe on the
land, including any land to which the Indian tribe was
relocated pursuant to the forcible removal of tribal members
from land as a result of acts of violence, an Act of
Congress, a Federal or State administrative action, or a
judicial order.
``(ii) Whether the membership of the tribe can demonstrate
lineal descendent or cultural affiliation, in accordance with
section 10.14 of title 43, Code of Federal Regulations (or a
successor regulation).
``(iii) The area in which the unique language of the Indian
tribe has been used.
``(iv) The proximity of the land to culturally significant
sites of the Indian tribe.
``(v) The forcible removal of tribal members from land as a
result of acts of violence, an Act of Congress, a Federal or
State administrative action, or a judicial order.
``(vi) Other factors that demonstrate a temporal presence
of the Indian tribe on the land prior to the first
interactions of the Indian tribe with nonnative individuals,
the Federal Government, or any other sovereign entity.
``(D) Exceptions.--
``(i) In general.--Subparagraphs (A) through (C) shall not
apply--
``(I) to any land on which gaming regulated by this Act
will not take place;
``(II) to any land located within, or contiguous to, the
boundaries of the reservation of an Indian tribe, as of
October 17, 1988;
``(III) if--
``(aa) the relevant Indian tribe did not have a reservation
on October 17, 1988; and
``(bb) the land is located--
``(AA) in the State of Oklahoma and within the boundaries
of the former reservation of the Indian tribe, as defined by
the Secretary, or contiguous to other land held in trust or
restricted status by the United States for the Indian tribe
in the State of Oklahoma; or
``(BB) in a State other than Oklahoma and within the last
recognized reservation of the Indian tribe in any State in
which the Indian tribe is presently located; or
``(IV) if the relevant Indian tribe has--
``(aa) taken land into trust during the period beginning on
October 17, 1988, and ending on the date of enactment of the
Tribal Gaming Eligibility Act; and
``(bb) has received a written determination by the
Secretary that the land is eligible to be used for gaming
under this section.
``(ii) Certain decisions.--
``(I) In general.--Subject to subclause (II), subparagraphs
(A) through (C) shall not apply to a final agency decision
issued before the date of enactment of the Tribal Gaming
Eligibility Act.
``(II) Pending applications.--Subparagraphs (A) through (C)
shall apply to an application that is pending, but for which
a final agency decision has not been made, as of the date of
enactment of the Tribal Gaming Eligibility Act.
``(E) Administration.--An action under this paragraph shall
be considered a final administrative action for purposes of
subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the `Administrative Procedure
Act').''; and
(D) in paragraph (4) (as redesignated by subparagraph (B)),
by striking ``paragraph (2)(B)'' and inserting ``paragraph
(3)(B),''.
______