[House Report 112-440]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-440
======================================================================
GILA BEND INDIAN RESERVATION LANDS REPLACEMENT CLARIFICATION ACT
_______
April 16, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2938]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2938) to prohibit certain gaming activities on
certain Indian lands in Arizona, 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 ``Gila Bend Indian Reservation Lands
Replacement Clarification Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) In 1986, Congress passed the Gila Bend Indian Reservation
Lands Replacement Act, Public Law 99-503, 100 Stat. 1798, to
authorize the Tohono O'odham Nation to purchase up to 9,880
acres of replacement lands in exchange for granting all right,
title and interest to the Gila Bend Indian Reservation to the
United States.
(2) The intent of the Gila Bend Indian Reservation Lands
Replacement Act was to replace primarily agriculture land that
the Tohono O'odham Nation was no longer able to use due to
flooding by Federal dam projects.
(3) In 1988, Congress passed the Indian Gaming Regulatory
Act, which restricted the ability of Indian tribes to conduct
gaming activities on lands acquired after the date of enactment
of the Act.
(4) Since 1986, the Tohono O'odham Nation has purchased more
than 16,000 acres of land. The Tohono O'odham Nation does not
currently game on any lands acquired pursuant to the Gila Bend
Indian Reservation Lands Replacement Act.
(5) Beginning in 2003, the Tohono O'odham Nation began taking
steps to purchase approximately 134.88 acres of land near 91st
and Northern Avenue in Maricopa County, within the City of
Glendale (160 miles from the Indian tribe's headquarters in
Sells). The Tohono O'odham Nation is now trying to have these
lands taken into trust status by the Secretary of the Interior
pursuant to the Gila Bend Indian Reservation Lands Replacement
Act of 1986 (``Gila Bend Act''), and has asked the Secretary to
declare these lands eligible for gaming, thereby allowing the
Indian tribe to conduct Las Vegas style gaming on the lands.
The Secretary has issued an opinion stating that he has the
authority to take approximately 53.54 acres of these lands into
trust status, and plans to do so when legally able to do so.
(6) The State of Arizona, City of Glendale, and at least 12
Indian tribes in Arizona oppose the Tohono O'odham Nation
gaming on these lands. No Indian tribe supports the Tohono
O'odham Nation's efforts to conduct gaming on these lands.
(7) The Tohono O'odham Nation's proposed casino violates
existing Tribal-State gaming compacts and State law,
Proposition 202, agreed to by all Arizona Indian tribes, which
effectively limits the number of tribal gaming facilities in
the Phoenix metropolitan area to seven, which is the current
number of facilities operating.
(8) The Tohono O'odham casino proposal will not generate
sales taxes as the State Gaming Compact specifically prohibits
the imposition of any taxes, fees, charges, or assessments.
(9) The proposed casino would be located close to existing
neighborhoods and a newly built school and raises a number of
concerns. Homeowners, churches, schools, and businesses made a
significant investment in the area without knowing that a
tribal casino would or even could locate within the area.
(10) The development has the potential to impact the future
of transportation projects, including the Northern Parkway, a
critical transportation corridor to the West Valley.
(11) The Tohono O'odham Nation currently operates three
gaming facilities: 2 in the Tucson metropolitan area and 1 in
Why, Arizona.
(12) Nothing in the language or legislative history of the
Gila Bend Indian Reservation Lands Replacement Act indicates
that gaming was an anticipated use of the replacement lands.
(13) It is the intent of Congress to clarify that lands
purchased pursuant to the Gila Bend Indian Reservation Lands
Replacement Act are not eligible for Class II and Class III
gaming pursuant to the Indian Gaming Regulatory Act. Such lands
may be used for other forms of economic development by the
Tohono O'odham Nation.
SEC. 3. GAMING CLARIFICATION.
Section 6(d) of Public Law 99-503 is amended by inserting ``except
that no class II or class III gaming activities, as defined in section
4 of the Indian Gaming Regulatory Act (25 U.S.C. 2703), may be
conducted on such land if such land is located north of latitude 33
degrees, 4 minutes north'' after ``shall be deemed to be a Federal
Indian Reservation for all purposes''.
SEC. 4. NO EFFECT.
The limitation on gaming set forth in the amendment made by section
3 shall have no effect on any interpretation, determination, or
decision to be made by any court, administrative agency or department,
or other body as to whether any lands located south of latitude 33
degrees, 4 minutes north taken into trust pursuant to this Act qualify
as lands taken into trust as part of a settlement of a land claim for
purposes of title 25 U.S.C. 2719(b).
Purpose of the Bill
The purpose of H.R. 2938, as ordered reported, is to
prohibit certain gaming activities on certain Indian lands in
Arizona.
Background and Need for Legislation
H.R. 2938 addresses a ``reservation shopping'' controversy
in the State of Arizona where the Secretary of the Interior is
creating a satellite reservation for a tribe to open a casino
in the potentially lucrative gambling market near Phoenix,
Arizona. Specifically, Interior has agreed--over the objections
of the Governor of Arizona, a majority of recognized tribes in
Arizona, and the affected city--to create trust lands for a
casino in the City of Glendale, for the benefit of the Tohono
O'odham Nation (TO Nation). The TO Nation is one of the largest
recognized tribes in the United States, with a reservation
stretching from the U.S.-Mexico border to the Tucson area. The
tribe currently operates three casinos on its existing
reservation lands, including in the Tucson market.
H.R. 2938 prohibits the off-reservation casino in Glendale.
As explained by the Salt River Pima-Maricopa Indian Community
(Arizona):
H.R. 2938 is necessitated by the [TO] Nation's
efforts to manipulate the Gila Bend Act in a manner
that would directly violate their commitments made in
the current Arizona compacts. The [TO] Nation is
currently trying to utilize the 1986 Gila Bend Act to
acquire lands more than 100 miles from its existing
reservation, in our tribe's aboriginal lands, to
develop a casino in the Phoenix metropolitan area.
(Testimony of Diane Enos, President, Salt River Pima-Maricopa
Indian Community before the Subcommittee on Indian and Alaska
Native Affairs, October 4, 2011).
As noted above, the Glendale casino project violates
commitments made to Arizona. The TO Nation co-sponsored a
tribal advocacy campaign to persuade Arizona voters to
authorize exclusive gaming rights to tribes in exchange for
certain limitations. One of these limitations was that ``there
will be no additional facilities authorized in Phoenix.'' (See
``Yes on 202--The 17-Tribe Indian Self-Reliance Initiatives,
Answers to Common Questions,'' co-sponsored by the Tohono
O'odham Nation, on file with the Committee on Natural
Resources; also see Appendix I, joint announcement of the
Governor of Arizona and Arizona Indian Gaming Association dated
February 20, 2002). Arizonans subsequently voted against a
competing ballot initiative to liberalize gaming rights for
non-Indians, while voting to pass Proposition 202, granting
tribes exclusive rights. Around the same time, however, the TO
Nation was apparently maneuvering to purchase the Glendale
property.
H.R. 2938 simply enforces the commitments made to Arizona
by the TO Nation and stops the Secretary of the Interior from
setting a precedent that may lead to an expansion of off-
reservation casinos in other states. As reported by the
Committee, H.R. 2938 permits the TO Nation to use the Glendale
land for any other purpose besides gaming. Moreover, the
reported bill does not stop the tribe from opening a casino on
lands acquired for its benefit south of Phoenix (provided such
lands meet other criteria set forth in applicable law), nor
does it change the tribe's ability to seek land for gaming
under another Act of Congress, such as the Indian
Reorganization Act of 1934. Finally, the bill has no affect on
the TO Nation's rights to conduct gaming on its existing
reservation, where it currently operates three casinos,
including two near the City of Tucson.
While there is an understandable argument that this matter
can and should be resolved by the Secretary of the Interior and
the Courts, Congress reserves the right to adjust its policy
respecting Indian tribes, a power the Supreme Court has
referred to as ``plenary.'' And this case so warrants it
because the Secretary of the Interior's handling of trust land
actions and gaming policy have lately been opaque and the cause
of numerous controversies. This one is no exception.
The controversy stems from a peculiar application of two
statutes enacted in the 1980s and a tribal-state compact
ratified in 2002. In 1986, Congress passed the Gila Bend Indian
Reservation Lands Replacement Act. That Act authorizes the TO
Nation to purchase up to 9,880 acres of replacement lands to
compensate the Nation for years of consistent flood damage to
its farming property caused by a federally-constructed project
called the Painted Rock Dam on the Gila River (Public Law 81-
516). Amendments to that Act directed the Secretary of the
Interior to accept replacement lands into trust for ``sustained
economic use'' (Public Law 99-503, Section 2(4)) and such lands
shall be deemed an Indian Reservation for all purposes.
Furthermore, the replacement lands must be non-incorporated and
within three counties (Pima, Pinal, or Maricopa) in Arizona.
Though the Congress intended to make lands of any character
available to the tribe, the intent was to replace primarily
agricultural lands with an equal number of acres. Since 1986,
the TO Nation has reportedly purchased more than 16,000 acres
of land.
Two years later, on October 17, 1988, Congress enacted the
Indian Gaming Regulatory Act (IGRA) (25 U.S.C. 2071 et seq.) to
provide a federal framework for tribes to conduct gaming on
Indian lands in existence as of the date of enactment of that
Act. Section 20 of IGRA (25 U.S.C. 2719) prohibits gaming on
lands acquired in trust for a tribe after October 17, 1988,
except in certain (supposedly rare) circumstances. One of these
circumstances is when ``lands are taken into trust as part of a
settlement of a land claim'' (25 U.S.C. 2719(b)(1)(B)(i)). This
is sometimes called the ``land claim exception.'' The Act did
not define ``land claim'' for the purpose of the gaming
exception. It is generally understood that Indian land claims
historically arose when non-Indians acquired Indian lands in
violation of the Trade and Intercourse Acts, a series of
related laws prohibiting the sale or transfer of Indian lands
without authorization from Congress. The Gila Bend Act of 1986
was not a redress of a violation of the Trade and Intercourse
Acts.
In 2003, the TO Nation--using a non-tribal entity--began
quietly purchasing 134 acres of non-incorporated land near the
Phoenix metropolitan area (located between the cities of
Glendale, Peoria, and Tolleson). On January 28, 2009, the TO
Nation asked the Secretary of the Interior to accept this
parcel of land in trust. Though the tribe had by then purchased
lands exceeding its 9,880-acre limit, in July 2010, the
Secretary determined that the Glendale property met the
requirements of the Gila Bend Indian Reservation Land
Replacement Act of 1986 and that the Secretary had an
obligation to take the land into trust. In effect, the
Secretary allowed the tribe to determine which of the over
16,000 acres of land it had purchased would count against the
9,880-acre limit in the 1986 Gila Bend Act.
On August 26, 2010, the Secretary issued a decision to hold
the land in trust (75 Fed. Reg. 52,550). Believing it to
violate the law, the Gila River Indian Community, the City of
Glendale, and other plaintiffs challenged this decision in U.S.
District Court. The Court upheld the Secretary's decision and
the plaintiffs have filed an appeal, which is currently pending
in the Ninth Circuit Court of Appeals. It is important to note
that, because of the litigation, the Glendale property is not
actually held in trust, yet.
If the land is finally placed in trust, the record strongly
suggests the TO Nation will conduct gaming in Glendale without
the need for further agency action. And the question whether
the land claim exception is being correctly applied will not be
subject to a legal challenge because under the Department of
the Interior's gaming regulations, an ``opinion'' on a land
claim exception requested by a tribe regarding its newly
acquired lands ``is not, per se, a final agency action under
the Administrative Procedures Act (APA)'' (see Federal
Register/Vol. 73, No. 98/Tuesday, May 20, 2008, p. 29358).
The foregoing history of the controversy demonstrates the
lengths to which the prospect of a lucrative urban casino is
turning what Congress in 1988 regarded as a tribal government
power--the regulation of gaming on an Indian Reservation--into
a commercial venture in targeted urban markets, a practice that
some say should be subject to State regulation. Indeed, in 2006
a majority of Members of the House voted to eliminate the
Indian land claim exception altogether and to impose additional
restrictions on off-reservation (see H.R. 4893, the Restricting
Indian Gaming to Homelands of Tribes Act of 2006).
Tribal regulation of gaming has been extraordinarily
successful for many tribes that were previously impoverished.
In most States where it is conducted, citizens understand and
respect a tribe's right to regulate gaming as a core function
of government and for funding tribal government services.
Reservation shopping, however, is changing the complexion of
tribal gaming, causing local political strife (as in Arizona)
and leading to expensive litigation benefiting no one.
H.R. 2938 restores the status quo as understood by Arizona
voters, the Governor of Arizona, the Legislature of Arizona,
and all but one tribe in Arizona when Prop 202 was passed and
non-tribal casino gaming prohibited. The bill is sponsored by
the Representative for the City of Glendale, and supported by
most of the Arizona House Delegation. It does not amend IGRA or
effect wide-ranging tribal policy: it addresses one instance
where the State, the Members representing the affected area,
and most tribes seek to ensure a delicate, negotiated
compromise benefiting all sides is maintained.
During markup of the bill, the Natural Resources Committee
adopted an amendment offered by Congressman Paul Gosar (R-AZ)
which minimizes the reach of the legislation in prohibiting
gaming on trust lands acquired under the 1986 Gila Bend Act in
the Phoenix Metropolitan area, while allowing it on trust lands
in the aboriginal region of the TO Nation. It also represents a
good faith compromise to the concerns raised in the hearing by
the Department of the Interior.
Committee Action
H.R. 2938 was introduced on September 15, 2011, by
Congressman Trent Franks (R-AZ). The bill was referred to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Indian and Alaska Native Affairs. On October 4,
2011, the Subcommittee held a hearing on the bill. On November
17, 2011, the Natural Resources Committee met to consider the
bill. The Subcommittee on Indian and Alaska Native Affairs was
discharged by unanimous consent. Congressman Paul Gosar (R-AZ)
offered amendment designated .986 to the bill; the amendment
was adopted by a bipartisan record vote of 33-10, as follows:
The bill, as amended, was then ordered favorably reported
to the House of Representatives by a bipartisan record vote of
32-11, as follows:
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.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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. 2938--Gila Bend Indian Reservation Lands Replacement Clarification
Act
H.R. 2938 would prohibit gaming (gambling other than social
games for prizes of minimal value) activities on certain lands
owned by the Tohono O'odham Nation (hereafter referred to as
the Nation) and placed in trust with the federal government in
Arizona. CBO estimates that the bill would have no significant
impact on the federal budget. Enacting H.R. 2938 would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
H.R. 2938 would prohibit the Nation from conducting gaming
activities on some land in Arizona. That prohibition would be
an intergovernmental mandate as defined in the Unfunded
Mandates Reform Act (UMRA). Based on information from the
Nation about when, absent enactment of this bill, it expects to
begin collecting revenue from a proposed casino and the
uncertainty of future legal challenges to the project, CBO
estimates that the cost of the mandate in the first five years
after enactment would not exceed the annual threshold
established in UMRA ($73 million in 2012, adjusted annually for
inflation).
H.R. 2938 contains no private-sector mandates as defined in
UMRA.
The CBO staff contacts for this estimate are Martin von
Gnechten (for federal costs) and Melissa Merrell (for
intergovernmental costs). The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
2. Section 308(a) of 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. CBO estimates that
the bill would have no significant impact on the federal
budget. Enacting H.R. 2938 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
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, as ordered reported, is to prohibit
certain gaming activities on certain Indian lands in Arizona.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
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 (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
GILA BEND INDIAN RESERVATION LANDS REPLACEMENT ACT
(Public Law 99-503)
* * * * * * *
USE OF SETTLEMENT FUNDS; ACQUISITION OF LANDS
Sec. 6. (a) * * *
* * * * * * *
(d) The Secretary, at the request of the Tribe, shall hold in
trust for the benefit of the Tribe any land which the Tribe
acquires pursuant to subsection (c) which meets the
requirements of this subsection. Any land which the Secretary
holds in trust shall be deemed to be a Federal Indian
Reservation for all purposes except that no class II or class
III gaming activities, as defined in section 4 of the Indian
Gaming Regulatory Act (25 U.S.C. 2703), may be conducted on
such land if such land is located north of latitude 33 degrees,
4 minutes north. Land does not meet the requirements of this
subsection if it is outside the counties of Maricopa, Pinal,
and Pima, Arizona, or within the corporate limits of any city
or town. Land meets the requirements of this subsection only if
it constitutes not more than three separate areas consisting of
contiguous tracts, at least one of which areas shall be
contiguous to San Lucy Village. The Secretary may waive the
requirements set forth in the preceding sentence if he
determines that additional areas are appropriate.
* * * * * * *
DISSENTING VIEWS
H.R. 2938 will retroactively amend the Gila Bend Indian
Reservation Lands Replacement Act (``Gila Bend Act'')--approved
and enacted by Congress 25 years ago--between the United States
and the Tohono O'odham Nation (the ``Nation'') to prohibit the
Nation from conducting class II or III gaming activities
pursuant to the Indian Gaming Regulatory Act (``IGRA'') on
certain lands rightfully acquired by the Nation. The
legislation not only upsets settled law, potentially subjecting
the United States to new liability for breach of trust, breach
of contract, and takings claims valued in the hundreds of
millions of dollars, it also creates uncertainty respecting the
finality of tribal legislative settlements and impugns the
federal trust responsibility. The House should reject this
irresponsible legislation.
The Gila Bend Act entitled the Nation to acquire non-
reservation land anywhere within three Arizona counties, under
enumerated conditions, in order to replace its original
reservation lands that were rendered economically useless by
the flooding caused by the United States' construction of the
Painted Rock Dam ten miles downstream from the Nation's
reservation. H.R. 2938, as amended, targets property in the
Phoenix metropolitan area that the Nation legally acquired in
2003 for gaming purposes--property that, if taken into trust by
the United States and deemed eligible for gaming activity under
IGRA, threatens to carve into the market share of two other
tribes with lucrative, existing gaming facilities in the area.
H.R. 2938 is an obvious attempt to legislatively prevent
the Nation from exercising a right it otherwise would have to
compete in the open market alongside its tribal neighbors for
gaming revenue. In fact, established tribal gaming interests
and others have challenged the Nation's interpretation of the
Gila Bend Act in federal court. The suit's proponents have
repeatedly failed to succeed on the merits in federal court and
now seek, through enactment of H.R. 2938, to change the
underlying land claims settlement law between the Nation and
the federal government in order to prevail. Congress should not
be in the business of amending existing settlement legislation
without the consent of the settling tribe, especially when
amendment would benefit special interests and undermine ongoing
litigation.
Mr. Franks' bill would break the legally enforceable
promises that the United States made to compensate the Nation
for nearly 10,000 acres of reservation land lost due to federal
error. Repudiation of these promises under H.R. 2938 would not
only void the Nation's release of its original land claims, but
could also reopen the portion of the Nation's original water
rights claims that were also settled by the Gila Bend Act,
amounting to as much as 32,000 acre-feet per year and valued in
excess of $100,000,000 (in 1986 dollars, the year of enactment
of the settlement legislation). H.R. 2938's potential
retroactive effect on the Nation's water settlement is
troublesome, but the legislation's prospective impact on
current settlement negotiations relating to water rights
claims, such as the Nation's Sif Oidak water rights claims with
the Salt River Project, the Central Arizona Water Conservation
District, the State of Arizona, the Maricopa-Stanfield and the
Central Arizona irrigation districts, and the United States, is
utterly ill-advised. If the Gila Bend Act settlement unravels
due to H.R. 2938, the 32,000 acre-feet per year appurtenant to
the Gila Bend Reservation may have to be added to the Sif Oidak
water rights claims, thus severely complicating that water
rights negotiation for the Nation and putting non-Indian
parties in an untenable negotiation position.
As a policy matter, legislative settlements between the
United States and tribal sovereigns are congressional
affirmations of the federal trust responsibility that underpin
the relationship between two sovereigns. Federal Indian law
scholars have recognized that most, if not all, modern
legislation dealing with Indian tribes contains a statement
reaffirming the trust relationship between tribes and the
federal government as a reflection of this responsibility.
Congress thus routinely does, and should, take the federal
trust responsibility seriously. In the case of H.R. 2938,
however, Congress would renege on its word by unilaterally
amending a land and water claims settlement entered into with
the Nation for the benefit of tribal competitors who only stand
to gain financially from legislatively restricting the Nation's
lawful access to gaming under the IGRA. This is simply bad
policy and a poor reflection of our nation's solemn oath to
honor its legal commitments and uphold the federal trust
responsibility in settlement agreements with the First
Americans.
Edward J. Markey.
Rush Holt.
Madeleine Z. Bordallo.
Grace F. Napolitano.
Niki Tsongas.
Gregorio Kilili Camacho Sablan.
John Garamendi.
Raul M. Grijalva.