[House Report 109-650]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-650

======================================================================



 
      RESTRICTING INDIAN GAMING TO HOMELANDS OF TRIBES ACT OF 2006

                                _______
                                

 September 13, 2006.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                        [To accompany H.R. 4893]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 4893) to amend section 20 of the Indian Gaming Regulatory 
Act to restrict off-reservation gaming, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Restricting Indian Gaming to Homelands 
of Tribes Act of 2006''.

SEC. 2. RESTRICTION ON OFF-RESERVATION GAMING.

  Section 20 of the Indian Gaming Regulatory Act (25 U.S.C. 2719) is 
amended--
          (1) by amending subsection (b)(1) to read as follows:
  ``(b)(1) Subsection (a) will not apply when lands are taken in trust 
for the benefit of an Indian tribe that is newly recognized, restored, 
or landless after the date of the enactment of subsection (f), 
including those newly recognized under the Federal Acknowledgment 
Process at the Bureau of Indian Affairs, and the following criteria are 
met:
          ``(A) The Secretary determines that such lands are within the 
        State of such tribe and are within the primary geographic, 
        social, historical, and temporal nexus of the Indian tribe.
          ``(B) The Secretary determines that the proposed gaming 
        activity would not be detrimental to the surrounding community 
        and nearby Indian tribes.
          ``(C) Concurrence by the Governor in conformance with laws of 
        that State.
          ``(D) Mitigation by the Indian tribe in accordance with this 
        subparagraph. For the purposes of the Indian tribe mitigating 
        the direct impact on the county or parish infrastructure and 
        services, the Indian tribe shall negotiate and sign, to the 
        extent practicable during the compact negotiations described in 
        section 11(d)(3), a memorandum of understanding with the county 
        or parish government. Such mitigation requirements shall be 
        limited to the direct effects of the tribal gaming activities 
        on the affected county or parish infrastructure and services. 
        If a memorandum of understanding is not signed within one year 
        after the Indian tribe or county or parish has notified the 
        other party and the Secretary, by certified mail, a request to 
        initiate negotiations, then the Secretary shall appoint an 
        arbitrator who shall establish mitigation requirements of the 
        Indian tribe.''; and
          (2) by adding at the end the following new subsections:
  ``(e)(1) In order to consolidate class II gaming and class III gaming 
development, an Indian tribe may host one or more other Indian tribes 
to participate in or benefit from gaming conducted under this Act and 
in conformance with a Tribal-State compact entered into by each invited 
Indian tribe and the State under this Act upon any portion of Indian 
land that was, as of October 17, 1988, located within the boundaries of 
the reservation of the host Indian tribe, so long as each invited 
Indian tribe has no ownership interest in any other gaming facility on 
any other Indian lands and has its primary geographic, social, 
historical, and temporal nexus to land in the State in which the Indian 
land of the host Indian tribe is located.
  ``(2) An Indian tribe invited to conduct class II gaming or class III 
gaming under paragraph (1) may do so under authority of a lease with 
the host Indian tribe. Such a lease shall be lawful without the review 
or approval of the Secretary and shall be deemed by the Secretary to be 
sufficient evidence of the existence of Indian land of the invited 
Indian tribe for purposes of Secretarial approval of a Tribal-State 
compact under this Act.
  ``(3) Notwithstanding any other provision of law, the Indian tribes 
identified in paragraph (1) may establish the terms and conditions of 
their lease and other agreements between them in their sole discretion, 
except that in no case may the total payments to the host Indian tribe 
under the lease and other agreements exceed 40 percent of the net 
revenues (defined for such purposes as the revenue available to the 2 
Indian tribes after deduction of costs of operating and financing the 
gaming facility developed on the leased land and of fees due to be paid 
under the Tribal-State compact) of the gaming activity conducted by the 
invited Indian tribe.
  ``(4) An invited Indian tribe under this subsection shall be deemed 
by the Secretary and the Commission to have the sole proprietary 
interest and responsibility for the conduct of any gaming on lands 
leased from a host Indian tribe.
  ``(5) Conduct of gaming by an invited Indian tribe on lands leased 
from a host Indian tribe under this subsection shall be deemed by the 
Secretary and the Commission to be conducted under the Act upon Indian 
lands--
          ``(A) of the invited Indian tribe;
          ``(B) within the jurisdiction of the invited Indian tribe; 
        and
          ``(C) over which the invited Indian tribe has and exercises 
        governmental power.
  ``(6) Notwithstanding the foregoing, the gaming arrangement 
authorized by this subsection shall not be conducted on any Indian 
lands within the State of Arizona.
  ``(7) Any gaming authorized by this subsection shall not be conducted 
unless it is--
          ``(A) consistent with the Tribal-State compacting laws of the 
        State in which the gaming activities will be conducted;
          ``(B) specifically identified as expressly authorized in a 
        tribal-State compact of the invited Indian tribe approved by an 
        Act of the legislature of the State in which the gaming will be 
        conducted; and
          ``(C) specifically identified as expressly authorized in a 
        tribal-State compact of the invited Indian tribe approved by 
        the Governor of the State in which the gaming will be 
        conducted.
  ``(8) Host tribe compacts shall not be affected by the amendments 
made by this subsection.
  ``(f) An Indian tribe shall not conduct gaming regulated by this Act 
on Indian lands outside of the State in which the Indian tribe is 
primarily residing and exercising tribal government authority on the 
date of the enactment of this subsection, unless such Indian lands are 
contiguous to the lands in the State where the tribe is primarily 
residing and exercising tribal government authority.''.

SEC. 3. STATUTORY CONSTRUCTION.

  (a) In General.--The amendment made by paragraph (1) of section 2 
shall be applied prospectively. Compacts or other agreements that 
govern gaming regulated by the Indian Gaming Regulatory Act (25 U.S.C. 
2701 et seq.) on Indian lands that were in effect on the date of the 
enactment of this Act shall not be affected by the amendments made by 
paragraph (1) of section 2.
  (b) Exception.--The amendments made by section 2 shall not apply to 
any lands for which an Indian tribe, prior to March 7, 2006, has 
submitted to the Secretary or Chairman a fee-to-trust application or 
written request requiring an eligibility determination pursuant to 
section 20(b)(1)(A) or clauses (ii) or (iii) of section 20(b)(1)(B) of 
the Indian Gaming Regulatory Act (25 U.S.C. 2719(b)(1)(A), 
2719(b)(1)(B)(ii), and 2719(b)(1)(B)(iii), respectively); provided that 
such lands are located within--
          (1) the State where the Indian tribe primarily resides; and
          (2) an area where the Indian Tribe has a primary 
        geographical, historical, and temporal nexus.
  (c) Further Exception.--The amendments made by section 2 shall not 
affect the right of any Indian Tribe to conduct gaming on Indian lands 
that are eligible for gaming pursuant to section 20 of the Indian 
Gaming Regulatory Act (25 U.S.C. 2719), as determined by the National 
Indian Gaming Commission, Secretary of the Interior or a Federal court 
prior to the date of the enactment of this Act.

SEC. 4. REGULATIONS REQUIRED.

  Not later than 180 days after the date of the enactment of this Act, 
the Secretary of the Interior shall promulgate regulations to implement 
section 20 of the Indian Gaming Regulatory Act (25 U.S.C. 2719). The 
regulations shall require tribal applicants for any of the exceptions 
listed in section 20 of the Indian Gaming Regulatory Act to have an 
aboriginal or analogous historic connection to the lands upon which 
gaming activities are conducted under the Indian Gaming Regulatory Act.

                          Purpose of the Bill

    The purpose of H.R. 4893 is to amend section 20 of the 
Indian Gaming Regulatory Act to restrict off-reservation 
gaming.

                  Background and Need for Legislation

    In the late 1970s many Indian tribes, aware that there were 
no federal bans on Indian gaming, were involved in ``high-
stakes'' bingo operations on their reservation lands. In 1987, 
the United States Supreme Court in California v. Cabazon Band 
of Mission Indians, 480 U.S. 202 (1987) affirmed the rights of 
American Indian tribal governments to conduct gaming operations 
on their sovereign reservation lands. The next year Congress 
passed the Indian Gaming Regulatory Act of 1988 (IGRA, Public 
Law 100-497, 25 U.S.C. 2501 et seq.) to provide a regulatory 
framework for the implementation of the Cabazon case. In the 
years following, the Indian gaming industry exploded in terms 
of the number of facilities and the amount of gaming revenue. 
For example, the revenue from Indian gaming increased from 
$5.45 billion in 1995 to nearly $23 billion in 2006. In 2006, 
there were over 400 Indian gaming facilities on Indian lands 
throughout the United States.
    IGRA consists of 24 sections designed to provide clear 
standards and regulations for the conduct of gaming on Indian 
lands. Prior to enactment of IGRA, there were no uniform 
standards for federal and State governments to follow when 
engaging with federally-recognized Indian tribes on the 
construction, conduct, and regulation of casino gaming. IGRA 
made it clear that the role of the federal government was 
strictly limited to that of ensuring that the Indian tribe is 
the primary beneficiary of the gaming operation and to promote 
a federal Indian policy of tribal economic development, tribal 
self-sufficiency, and strong tribal government functions. To 
help protect Indian gaming revenue for tribal purposes only, 
IGRA also established the National Indian Gaming Commission to 
ensure that tribal gaming would continue to be a function of 
the Indian tribal government, and to act as the ultimate 
authority for establishing federal standards for gaming on 
tribal lands.
    The Congressional purpose of enacting IGRA was to protect 
and regulate Indian gaming on lands that are located within or 
contiguous to the boundaries of the Indian tribe's reservation 
prior to October 17, 1988,\1\ and IGRA generally prohibits 
gaming on lands acquired in trust after that date. However, 
Section 20 of IGRA also contains several exceptions to this 
general rule which over the years has led to controversy and 
conflict between individual tribes, and State, local, and 
federal governments. Instead of seeking to bring economic 
development to the Indian reservation, many tribes since 1988 
have sought to bring the Indian reservation to the economic 
development. Currently there are over 50 applications on file 
with the Department of the Interior for approval to build an 
Indian casino elsewhere than on lands that are located within 
or contiguous to the boundaries of a Indian tribe's reservation 
as it existed prior to 1988.
---------------------------------------------------------------------------
    \1\ 25 U.S.C. 2719(a).
---------------------------------------------------------------------------
    IGRA contains four exceptions to the general rule 
prohibiting such ``off-reservation'' gaming. These exceptions 
contained in Section 20(b)(1) are: (1) the two-part 
determination; (2) the land claim exception; (3) the restored 
land exception; and (4) the initial reservation exception. Each 
of these exceptions allows a tribe to construct a gaming 
facility on lands that are not within or contiguous to a 
reservation existing on October 17, 1988. The controversies 
surrounding these exceptions were the focus of six oversight 
and legislative hearings before the Committee on Resources 
where testimony was taken on the impact of gaming activities on 
local communities.
    As ordered reported, H.R. 4893 would significantly revise 
the exceptions in Section 20(b)(1) of IGRA. First, the 
legislation eliminates the two-part determination and the land 
claim exceptions. It should be noted that eliminating the land 
claim exception does not affect the power of Congress to settle 
land claims in any appropriate and Constitutional manner 
through a separate Act of Congress. Second, the bill allows 
newly recognized, restored, or landless tribes to conduct 
gaming on lands acquired in trust, but only when the following 
criteria are met: (1) the Secretary of the Interior determines 
the lands are located in the State in which the tribe primarily 
resides and exercises jurisdiction; (2) the lands are within 
the primary geographic, social, historical, and temporal nexus 
of the tribe; (3) the Secretary determines the proposed gaming 
activity would not be detrimental to the surrounding community 
and nearby Indian tribes; (4) the Governor of the State where 
the proposed gaming is to be conducted concurs in accordance 
with the State's laws; and (5) the tribe signs a memorandum of 
understanding with the county or parish in which the tribe and 
its facility are located in order to mitigate direct impacts 
from the proposed gaming facility.
    The nexus requirement is derived from case law on IGRA's 
restored land exception.\2\ Case law has so far suggested that 
restored lands cannot be all lands with which a tribe has had 
minimal contact. A tribe must have a historical nexus to the 
land and that the restoration be sufficiently close in time to 
the date of the recognition.\3\ The Committee believes that 
this nexus requirement extends beyond the circumstance of 
restored lands and should also be applied to lands designated 
as an initial reservation by the Secretary for newly recognized 
tribes as well as for tribes that do not currently have lands 
taken into trust by the Secretary for the purposes of gaming. 
Under this standard, both a historical and temporal requirement 
should be used to prove that the tribe has both a past and 
present, modern-day connection to the proposed land 
acquisition. In addition, the tribe must have a significant 
geographic link to the proposed lands to be taken into trust 
for the purposes of gaming. Under H.R. 4893 as ordered 
reported, all three requirements (historical, temporal and 
geographic) must be present in a tribal fee-to-trust 
application for the purposes of gaming.
---------------------------------------------------------------------------
    \2\ See Grand Traverse Band of Ottawa & Chippewa Indian v. United 
States Atty., 198 F. Supp. 2d 920, 937.
    \3\ Id.
---------------------------------------------------------------------------
    In addition to the new Section 20(b)(1), H.R. 4893 also 
adds a new Section 20(e)(1) to the bill which would authorize a 
federally-recognized Indian tribe to partner with another tribe 
on existing Indian lands as they existed prior to October 17, 
1988, for the purposes of building a gaming facility. The 
criteria for an invited tribe to partner with another tribe on 
its existing Indian lands are as follows: (1) the host tribe 
and invited tribe must sign a lease that will charge no more 
than 40% net revenue per year for the entire term of the lease; 
(2) the invited tribe must show it has a geographic, social, 
historical and temporal nexus to the tribe it wishes to partner 
with; (3) the invited tribe must obtain a gaming compact 
expressly authorizing the gaming partnership from the Governor 
and have that compact ratified in the State legislature; (4) 
the invited tribe must be deemed by the Secretary and the 
Indian Gaming Commission that it will have the sole proprietary 
interest and responsibility for the conduct of any gaming on 
lands leased from the host tribe; and (5) each invited tribe 
must have no interest in any other gaming facility on any other 
Indian lands.
    It should be noted that H.R. 4893 affects only tribal 
gaming regulated by IGRA. H.R. 4893 does not affect gaming not 
regulated by the IGRA and thus would not impede the ability of 
tribes to operate State-licensed and regulated commercial 
business enterprises on non-reservation land.

                            Committee Action

    H.R. 4893 was introduced on March 7, 2006, by Resources 
Committee Chairman Richard Pombo (R-CA). The bill was referred 
to the Committee on Resources. Two hearings were held on the 
bill: one on March 15, 2006, and the other on April 5, 2006. On 
July 26, 2006, the Full Resources Committee met to consider the 
bill. Mr. Pombo and Ranking Member Nick J. Rahall II (D-WV) 
offered an amendment in the nature of a substitute. The 
amendment required the concurrence of the Governor in 
conformance with the laws of the State, deleted both the tribal 
veto provision and the tribally-financed local referendum and 
added a grandfather provision to Section 2 of H.R. 4893. The 
requirement of concurrence of the State legislature was 
perceived as a problem by Members because the intention behind 
IGRA was for the Governor of a State to be a primary actor when 
deciding whether to concur with off reservation fee-to-trust 
petitions. Many Members felt that concurrence by both the 
Governor and the State legislature was too big a change in 
federal Indian policy. Another requirement in the introduced 
version of H.R. 4893 that received questions from Committee 
Members was the tribal veto of tribal fee-to-trust petitions 
for gaming purposes. Members felt that the tribal veto was 
unnecessary and raised several possible legal concerns that did 
not justify keeping the provision in the bill. Finally, many 
Committee Members scrutinized the tribally-financed local 
referendum in the introduced bill. Members felt that the local 
referendum provision would only encourage casino developers to 
finance this very expensive referendum provision and would 
ultimately exacerbate and not diminish controversy between 
tribes and local communities.
    The Committee was informed by both the Arizona 
Congressional delegation and by several Arizona Indian tribes 
that the gaming co-location provision located in subsection 
(2)(e)(I) of the introduced bill would destroy the unique 
multi-party, Tribal-State compacting arrangement that was 
approved by the people of the State of Arizona in 2002. 
Therefore, under the amendment, the tribes located in the State 
of Arizona will not be able to take advantage of the gaming co-
location provisions in subsection (2)(e)(1). The final change 
in the amendment to H.R. 4893 is the addition of a grandfather 
provision. Many Members of this Committee reported that they 
had constituent tribes who had already filed fee-to-trust 
petitions for the purposes of gaming with the Department of 
Interior and are currently awaiting consideration. Concerns 
were voiced that many of these tribes who have invested 
substantial resources into complying with existing Department 
rules regarding proposed gaming projects would be unfairly 
eliminated should H.R. 4893 be enacted into law. The amendment 
allows the Department consider any tribal fee-to-trust 
application for the purposes of gaming under the current law as 
long as the tribe has a geographic, historical and temporal 
nexus to the proposed parcel it intends to place into trust.
    Congressman Don Young (R-AK) offered an amendment to the 
amendment in the nature of a substitute which stated that H.R. 
4893 shall not affect the right of any Indian tribe to conduct 
gaming on Indian lands that are eligible for gaming under 
Section 20 of IGRA. The amendment was agreed to by voice vote.
     Congressman Dale Kildee (D-MI) offered two amendments to 
the amendment in the nature of a substitute. The first, which 
created a new Section 4 to H.R. 4893, would require the 
Secretary to promulgate regulations on the implementation of 
Section 20 of IGRA within 180 days, was agreed to by voice 
vote. The second, which would have struck the majority of 
Section 1 of H.R. 4893 and replaced it with a mandatory 
Secretarial determination that a proposed fee-to-trust petition 
for the purposes of gaming must have a primary geographic, 
social, historical, and temporal nexus of the Indian tribe, was 
not agreed to by a rollcall vote of 10 ayes and 23 noes, as 
follows:


    The following amendments to the amendment in the nature of 
a substitute were offered and withdrawn:
    An amendment by Congressman Dennis A. Cardoza (D-CA) that 
would have excluded H.R. 4893 from applying to any tribe that 
was restord to federal recognition by judicial stipulation 
entered in Hardwick v. United States.
    An amendment by Congressman Ron Kind (D-WI) which would 
have grandfathered any tribal-State gaming compact that 
expressly authorized certain trust lands to be used for gaming.
    An amendment by Congressman Jim Costa (D-CA) which mandated 
that each State create a Tribal Slot Master Plan, setting an 
official State cap on slot machines at Indian casinos before 
approving any tribal-State gaming compacts.
    An amendment by Congressman Dan Boren (D-OK) which would 
have eliminated the memorandum of understanding provision 
between the tribe and the State and substituted the provision 
with a informal consultation process with the State, local, and 
tribal officials.
    An amendment by Congressman Jay Inslee (D-WA) which would 
have overturned a series of court decisions and mandated that 
States negotiate with tribes for gaming compacts.
    Congressman Eni F.H. Faleomavaega (D-AS) offered an 
amendment to the amendment which would have excluded H.R. 4893 
from applying to lands taken into trust as part of the 
settlement of a tribal land claim that either appeared on the 
list of such claims published by the Secretary on March 31, 
1983, or were asserted by the affected tribes in court or 
administratively before October 17, 1988. The amendment was not 
adopted by voice vote.
    The Pombo-Rahall amendment in the nature of a substitute, 
as amended, was adopted by voice vote. The bill, as amended, 
was favorably reported to the House of Representatives by a 
rollcall vote of 27 ayes and 9 noes, as follows:



            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) rule X and clause 3(c)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8, clause 3 of the Constitution of the 
United States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 4893--Restricting Indian Gaming to Homelands of Tribes Act of 2006

    H.R. 4893 would amend provisions in the Indian Gaming 
Regulatory Act (IGRA) related to off-reservation Indian gaming. 
Specifically, the legislation would add new restrictions on 
tribes operating Indian gaming outside their existing 
reservations. Based on information from the Department of the 
Interior (DOI), CBO estimates that implementing H.R. 4893 would 
not have a significant impact on the federal budget. Enacting 
the bill would not affect revenues or direct spending.
    H.R. 4893 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) because it would limit 
the ability of tribes to operate gaming on land put in trust 
after 1988. Because both the outlook for gaming on these lands 
under current law and the impact of the changes made by the 
bill are very uncertain, CBO cannot determine whether the 
aggregate cost to tribes would exceed the annual threshold 
established in UMRA ($64 million in 2006, adjusted annually for 
inflation) in any of the next five years. The bill contains no 
private-sector mandates as defined in UMRA.
    The bill would amend Section 20 of the IGRA, which 
generally prohibits gaming on lands placed into trust after 
October 17, 1988 (IGRA's enactment date). Section 20 includes a 
number of exceptions to that rule, but this bill would narrow 
those exceptions, further limiting tribes' opportunities to 
operate gaming. One exception now allows tribes to operate 
gaming if they receive a special determination from DOI and 
approval of the state's governor. H.R. 4893 would eliminate 
these ``two-part determinations'' for all but those tribes that 
had an application pending before March 7, 2006. It also would 
add new conditions even for tribes that submitted their 
applications before that date. In addition, the bill would 
impose new conditions to the exceptions for newly created or 
restored tribes, including requirements that these tribes gain 
the governor's approval and mitigate the direct effects of 
gaming on local governments. Finally, the bill would completely 
eliminate the exception for land acquired through the 
settlement of a land claim.
    The costs of these new mandates would include the lost 
earnings of any tribe unable to operate gaming under IGRA 
because of these changes, as well as any additional expenses 
tribes might incur to mitigate the effects of gaming on the 
local communities. Based on information provided by DOI, CBO 
estimates that the new conditions imposed by this bill would 
affect, at least to some extent, about 50 applications from 
tribes seeking approval from DOI for gaming on recently 
acquired lands. It is difficult to predict how many of those, 
if any, would be approved in the next five years under current 
law, or how many of that group would be eliminated or delayed 
as a result of this bill, but the lost earnings from even one 
gaming operation could be substantial. A number of existing 
Indian gaming operations have annual revenues of more than $100 
million. CBO also cannot predict how much more tribes would pay 
to local communities as a result of this bill, in part because 
tribes often agree to make similar payments under current law.
    Some provisions in H.R. 4893 would benefit Indian tribes, 
as well as local governments. The bill would allow tribes to 
create partnerships, where one tribe would host a gaming 
facility for another tribe. Also, requiring tribes to make 
payments to local governments would benefit those governments.
    On May 17, 2006, CBO transmitted a cost estimate for S. 
2078, the Indian Gaming Regulatory Act of 2006, as ordered 
reported by the Senate Committee on Inldian Affairs on March 
29, 2006. Both pieces of legislation would restrict off-
reservation gaming; however, the Senate bill contains 
additional provisions related to the National Indian Gaming 
Commission.
    The staff contacts for this estimate are Matthew Pickford 
(for federal costs), and Marjorie Miller (for the impact on 
state, local, and tribal governments). This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    Compliance With Public Law 104-4

    The Congressional Budget Office was unable to determine 
whether this bill exceeded the threshold for reporting an 
intergovernmental mandate under Public Law 104-4. The analysis 
of this mandate is contained in the cost estimate included in 
this report. The bill provides no authorization of 
appropriations or any direct spending authorization. The 
Commitee intends that the intergovernmental mandate be entirely 
unfunded. The Committee is unaware of any specific existing 
sources of federal assistance to cover direct costs.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

             SECTION 20 OF THE INDIAN GAMING REGULATORY ACT


          GAMING ON LANDS ACQUIRED AFTER ENACTMENT OF THIS ACT

  Sec. 20. (a) * * *
  [(b)(1) Subsection (a) will not apply when--
          [(A) the Secretary, after consultation with the 
        Indian tribe and appropriate State and local officials, 
        including officials of other nearby Indian tribes, 
        determines that a gaming establishment on newly 
        acquired lands would be in the best interest of the 
        Indian tribe and its members, and would not be 
        detrimental to the surrounding community, but only if 
        the Governor of the State in which the gaming activity 
        is to be conducted concurs in the Secretary's 
        determination; or
          [(B) lands are taken into trust as part of--
                  [(i) a settlement of a land claim,
                  [(ii) the initial reservation of an Indian 
                tribe acknowledged by the Secretary under the 
                Federal acknowledgment process, or
                  [(iii) the restoration of lands for an Indian 
                tribe that is restored to Federal recognition.]
  (b)(1) Subsection (a) will not apply when lands are taken in 
trust for the benefit of an Indian tribe that is newly 
recognized, restored, or landless after the date of the 
enactment of subsection (f), including those newly recognized 
under the Federal Acknowledgment Process at the Bureau of 
Indian Affairs, and the following criteria are met:
          (A) The Secretary determines that such lands are 
        within the State of such tribe and are within the 
        primary geographic, social, historical, and temporal 
        nexus of the Indian tribe.
          (B) The Secretary determines that the proposed gaming 
        activity would not be detrimental to the surrounding 
        community and nearby Indian tribes.
          (C) Concurrence by the Governor in conformance with 
        laws of that State.
          (D) Mitigation by the Indian tribe in accordance with 
        this subparagraph. For the purposes of the Indian tribe 
        mitigating the direct impact on the county or parish 
        infrastructure and services, the Indian tribe shall 
        negotiate and sign, to the extent practicable during 
        the compact negotiations described in section 11(d)(3), 
        a memorandum of understanding with the county or parish 
        government. Such mitigation requirements shall be 
        limited to the direct effects of the tribal gaming 
        activities on the affected county or parish 
        infrastructure and services. If a memorandum of 
        understanding is not signed within one year after the 
        Indian tribe or county or parish has notified the other 
        party and the Secretary, by certified mail, a request 
        to initiate negotiations, then the Secretary shall 
        appoint an arbitrator who shall establish mitigation 
        requirements of the Indian tribe.

           *       *       *       *       *       *       *

  (e)(1) In order to consolidate class II gaming and class III 
gaming development, an Indian tribe may host one or more other 
Indian tribes to participate in or benefit from gaming 
conducted under this Act and in conformance with a Tribal-State 
compact entered into by each invited Indian tribe and the State 
under this Act upon any portion of Indian land that was, as of 
October 17, 1988, located within the boundaries of the 
reservation of the host Indian tribe, so long as each invited 
Indian tribe has no ownership interest in any other gaming 
facility on any other Indian lands and has its primary 
geographic, social, historical, and temporal nexus to land in 
the State in which the Indian land of the host Indian tribe is 
located.
  (2) An Indian tribe invited to conduct class II gaming or 
class III gaming under paragraph (1) may do so under authority 
of a lease with the host Indian tribe. Such a lease shall be 
lawful without the review or approval of the Secretary and 
shall be deemed by the Secretary to be sufficient evidence of 
the existence of Indian land of the invited Indian tribe for 
purposes of Secretarial approval of a Tribal-State compact 
under this Act.
  (3) Notwithstanding any other provision of law, the Indian 
tribes identified in paragraph (1) may establish the terms and 
conditions of their lease and other agreements between them in 
their sole discretion, except that in no case may the total 
payments to the host Indian tribe under the lease and other 
agreements exceed 40 percent of the net revenues (defined for 
such purposes as the revenue available to the 2 Indian tribes 
after deduction of costs of operating and financing the gaming 
facility developed on the leased land and of fees due to be 
paid under the Tribal-State compact) of the gaming activity 
conducted by the invited Indian tribe.
  (4) An invited Indian tribe under this subsection shall be 
deemed by the Secretary and the Commission to have the sole 
proprietary interest and responsibility for the conduct of any 
gaming on lands leased from a host Indian tribe.
  (5) Conduct of gaming by an invited Indian tribe on lands 
leased from a host Indian tribe under this subsection shall be 
deemed by the Secretary and the Commission to be conducted 
under the Act upon Indian lands--
          (A) of the invited Indian tribe;
          (B) within the jurisdiction of the invited Indian 
        tribe; and
          (C) over which the invited Indian tribe has and 
        exercises governmental power.
  (6) Notwithstanding the foregoing, the gaming arrangement 
authorized by this subsection shall not be conducted on any 
Indian lands within the State of Arizona.
  (7) Any gaming authorized by this subsection shall not be 
conducted unless it is--
          (A) consistent with the Tribal-State compacting laws 
        of the State in which the gaming activities will be 
        conducted;
          (B) specifically identified as expressly authorized 
        in a tribal-State compact of the invited Indian tribe 
        approved by an Act of the legislature of the State in 
        which the gaming will be conducted; and
          (C) specifically identified as expressly authorized 
        in a tribal-State compact of the invited Indian tribe 
        approved by the Governor of the State in which the 
        gaming will be conducted.
  (8) Host tribe compacts shall not be affected by the 
amendments made by this subsection.
  (f) An Indian tribe shall not conduct gaming regulated by 
this Act on Indian lands outside of the State in which the 
Indian tribe is primarily residing and exercising tribal 
government authority on the date of the enactment of this 
subsection, unless such Indian lands are contiguous to the 
lands in the State where the tribe is primarily residing and 
exercising tribal government authority.

                                  
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