[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),''.
                                 ______