[House Report 111-515]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-515
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INDIAN PUEBLO CULTURAL CENTER CLARIFICATION ACT
_______
June 28, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 4445]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4445) to amend Public Law 95-232 to repeal a
restriction on treating as Indian country certain lands held in
trust for Indian pueblos in New Mexico, 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 ``Indian Pueblo Cultural Center
Clarification Act''.
SEC. 2. REPEAL OF RESTRICTION ON TREATING AS INDIAN COUNTRY CERTAIN
LANDS HELD IN TRUST FOR INDIAN PUEBLOS IN NEW
MEXICO.
Public Law 95-232 is amended in the first section in subsection (b)
by striking ``However, such property shall not be `Indian country' as
defined in section 1151 of title 18, United States Code.''.
SEC. 3. PROHIBITION ON GAMING.
Public Law 95-232 is amended in the first section by adding at the
end the following:
``(e) Prohibition on Gaming.--Gaming, as defined and regulated by the
Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), shall be
prohibited on land held in trust pursuant to subsection (b).''.
Purpose of the Bill
The purpose of H.R. 4445 is to amend Public Law 95-232 to
repeal a restriction on treating as Indian country certain
lands held in trust for Indian pueblos in New Mexico.
Background and Need for Legislation
The Indian Pueblo Cultural Center property was owned by the
United States and was originally the site of the Albuquerque
Indian School, which was administered by the Bureau of Indian
Affairs (BIA). In the 1960's, the federal government determined
that the lands and improvements of the Indian school property
were no longer needed for Indian school purposes. Subsequently,
the BIA conveyed the land by quitclaim deed to the 19 New
Mexico Pueblos as tenants in common. The purpose of the
conveyance was to enable the Pueblos to develop an Indian
Pueblo Cultural Center on the property.
The All Indian Pueblo Council (AIPC), which has existed for
centuries as a pan-Pueblo organization, is comprised of the 19
New Mexico Pueblos and one Texas Pueblo (Ysleta del Sur became
a member of AIPC in 2009). They meet monthly to discuss issues
such as education, culture, and water and land rights. As
overseers of the property conveyed to them by the BIA in 1969,
they sought to clarify its legal status by requesting that the
land be taken into trust by the United States for the benefit
of the 19 Pueblos.
In 1978 Congress enacted Public Law 95-232, which directed
the Secretary of the Interior to place 11.2857 acres of land
into trust for the benefit of the Pueblos. The issue H.R. 4445
seeks to address regards Section (b) of that Act. It states:
Such land shall be held in trust jointly for such
Indian pueblos and shall enjoy the tax-exempt status of
other trust lands, including exemption from State
taxation and regulation. However, such property shall
not be ``Indian country'' as defined in section 1151 of
title 18, United States Code. (italics added)
At the time Congress passed Public Law 95-232, there was a
general legal understanding that the ``Indian country''
definition applied solely to criminal jurisdiction, not to
civil jurisdiction such as taxation. Since 1978, however,
various courts have applied the Section 1151 definition to both
criminal and civil jurisdiction, including issues of state
taxation.
Because of the change in the interpretation of the term
``Indian country,'' the New Mexico Taxation and Revenue
Department (NMTRD) decided in 1997 that the State could
lawfully impose its gross receipts tax on a Pueblo member who
engaged in business at the Indian Pueblo Cultural Center (In
the Matter of the Protest of Val Tech & Associates, NMTRD
Decision and Order, No. 97-26).\1\ The NMTRD concluded that
Congress intended to authorize the State to tax Pueblo activity
on the Cultural Center trust land by stating in Public Law 95-
232 that the land would ``not be Indian country as defined in
section 1151 of title 18, United States Code.'' Relying on
post-1978 court decisions applying the ``Indian country''
definition to taxation, the NMTRD decided that only the Indian
Pueblo Cultural Center property itself is exempt from state
taxation. The NMTRD decision was not appealed.
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\1\This hearing involved an enrolled member of the Pueblo of Laguna
whose place of business was located at the Indian Pueblo Cultural
Center. His business was to do private investigation, primarily
personnel background investigations for casinos owned and operated by
the Pueblos of Acoma, Sandia and San Felipe.
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Indian Pueblo Marketing, Inc. (IPMI)
The Indian Pueblo Marketing, Inc. (IPMI) is a corporation
chartered by the Secretary of the Interior pursuant to 25
U.S.C. Sec. 477 and is owned jointly by the New Mexico Pueblos.
IPMI has conducted retail business operations on the Cultural
Center trust land since 1987. During that period, IPMI has
never paid State taxes on its business operations at the
Cultural Center, and the State has only assessed taxes against
IPMI for its business operations at the Cultural Center
once.\2\ This occurred in 1998 when the NMTRD assessed
cigarette and tobacco taxes against IPMI based on the Val Tech
decision.
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\2\Neither Bernalillo County nor the City of Albuquerque, in which
the Cultural Center trust land is located, has attempted to impose any
tax on IPMI or Pueblo members based on their activity or property on
the Cultural Center Trust Land. Further, the County and City have never
attempted to tax the Cultural Center Trust Land itself, or the
substantial improvements on that land. The local authorities seem to
treat this land in the same manner as they do other lands taken into
trust jointly for the New Mexico Pueblos.
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The following year, NMTRD entered into a Closing Agreement
with IPMI withdrawing the assessments on cigarette and tobacco
taxes against IPMI. The Agreement was approved by the NMTRD and
the State Attorney General. It provided that Public Law 95-232
``does not reflect any intention by Congress that the Pueblos'
activity on the Cultural Center trust land would be subject to
state taxation.''
Despite the Agreement, in 2000, 2004, and 2008 NMTRD
declined to issue a written ruling requested by IPMI confirming
that IPMI is exempt from State taxation for its business
activity on the Cultural Center trust land. The Pueblos are
therefore in an uncertain and risky position that NMTRD may
decide that the Val Tech decision is controlling,
notwithstanding the 1999 Closing Agreement.
Since 1978 Congress has taken other land into trust jointly
for the New Mexico Pueblos on two separate occasions: the
``Santa Fe Indian School Act,'' Public Law 106-568; and the
``Albuquerque Indian School Act,'' Public Law 110-453. In both
Acts, Congress declared that the land would be held in trust
for the Pueblos, but did not state that the new trust land
would not be Indian country. Enacting H.R. 4445 would grant the
Cultural Center trust land the same legal status as these other
lands placed in trust for the New Mexico Pueblos.
Committee Action
H.R. 4445 was introduced by Rep. Martin Heinrich (D-NM) on
January 13, 2010, and was referred to the Committee on Natural
Resources. The Committee held a hearing on the bill on April
21, 2010. Mr. George Skibine, Acting Principal Deputy Assistant
Secretary for Indian Affairs, testified in support of this
legislation, provided that the State of New Mexico and the City
of Albuquerque concur with the purposes of the bill. He also
requested the addition of language clearly stating that the
subject lands are ``Indian country'' for the purposes of
section 1151 of title 18 of the United States Code. The State
of New Mexico testified in support of H.R. 4445 and the City of
Albuquerque has submitted a written letter of support.
On June 16, 2010 the Natural Resources Committee met to
consider H.R. 4445. An amendment was offered by Mr. Heinrich to
prohibit gaming on the Indian Pueblo Cultural Center lands. The
amendment was adopted by unanimous consent. The bill, as
amended, was then ordered favorably reported to the House of
Representatives by unanimous consent.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that this Act may be cited as the
``Indian Pueblo Cultural Center Clarification Act.''
Section 2. Repeal of restriction on treating as indian country certain
lands held in trust for Indian Pueblos in New Mexico
Section 2 amends Public Law 95-232 by striking ``However,
such property shall not be Indian country' as defined in
section 1151 of title 18, United States Code.'' This section
would provide the lands, on which the Indian Pueblo Cultural
Center is located, the same legal status as other lands taken
into trust jointly for the Pueblos of New Mexico. Declaring the
lands that are the subject of H.R. 4445 to be ``Indian
country'' would differentiate them from other lands held in
trust jointly for the Pueblos of New Mexico. Despite the lack
of specification in this bill that the subject lands are
``Indian country,'' it is Congress' intent that all lands held
in trust jointly for the Pueblos of New Mexico are to be
considered ``Indian country.''
Section 3. Prohibition on gaming
Section 3 amends Public Law 95-232 to prohibit gaming, as
defined and regulated by the Indian Gaming Regulatory Act, on
lands subject to this legislation.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 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. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend Public Law 95-232 to repeal
a restriction on treating as Indian country certain lands held
in trust for Indian pueblos in New Mexico.
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. 4445--Indian Pueblo Cultural Center Clarification Act
H.R. 4445 would eliminate a provision of current law that
prohibits certain land, located in New Mexico and held in trust
by the federal government for the New Mexico Pueblos, from
being considered Indian Country, as defined by federal law.
Because the federal government is responsible for certain law
enforcement activities in Indian Country, enacting the
legislation could increase the workload of certain federal law
enforcement agencies. Based on information from the Department
of the Interior, CBO estimates that any costs associated with
additional law enforcement activities would be insignificant
and subject to the availability of appropriated funds. Enacting
H.R. 4445 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures would not apply.
H.R. 4445 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by
prohibiting gaming on some land held in trust for the Pueblos
in New Mexico. Because the Pueblos are not currently operating
gaming activities on this land nor do they have plans to do so
in the future, CBO estimates the cost, if any, would be small
and well below the annual threshold established in UMRA ($70
million in 2010, adjusted annually for inflation).
This bill contains no new private-sector mandates as
defined in UMRA.
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs) and Melissa Merrell (for the state, local,
and tribal impact). The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 4445 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
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):
PUBLIC LAW 95-232
AN ACT To provide for the return to the United States of title to
certain lands conveyed to certain Indian pueblos of New Mexico and for
such land to be held in trust by the United States for such tribes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
duly authorized officials of each of the Indian pueblos of New
Mexico are hereby authorized to convey to the United States all
the right, title, and interest of such peublos in the land
located in Albuqerque, County of Bernalillo, State of New
Mexico, which was conveyed to such pueblos on behalf of the
United States and the Secretary of the Interior by the
quitclaim deed executed on June 17, 1969, by the Acting
Commissioner of Indian Affairs, and by the correction quitclaim
deed executed July 30, 1970, by the Commissioner of Indian
Affairs, and which is described as follows:
* * * * * * *
(b) Upon approval by the Secretary of the Interior, the
Secretary shall accept such conveyances on behalf of the United
States. Such land shall be held in trust jointly for such
Indian pueblos and shall enjoy the tax-exempt status of other
trust lands, including exemption from State taxation and
regulation. [However, such property shall not be ``Indian
country'' as defined in section 1151 of title 18, United States
Code.] The Secretary shall cause a description of such trust
land to be published in the Federal Register.
* * * * * * *
(e) Prohibition on Gaming.--Gaming, as defined and regulated
by the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.),
shall be prohibited on land held in trust pursuant to
subsection (b).