[House Report 113-210]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-210
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KEEP THE PROMISE ACT OF 2013
_______
September 17, 2013.--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. 1410]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1410) to prohibit gaming activities on certain
Indian lands in Arizona until the expiration of certain gaming
compacts, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 1410 is to prohibit gaming activities
on certain Indian lands in Arizona until the expiration of
certain gaming compacts.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 1410 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 lands,
including one near Tucson.
H.R. 1410 prohibits the off-reservation casino in Glendale,
Arizona. As explained by the Salt River Pima-Maricopa Indian
Community (Arizona):
This bill will protect the promises that the tribes
of Arizona made to each other and the State and voters
of Arizona and protects the current Indian gaming
structure in Arizona. Specifically, this bill will
prohibit any tribe from conducting gaming on lands
acquired into trust after April 9, 2013 for the
duration of the existing gaming compacts which begin to
expire in 2026. . . . While the need for this bill is
necessitated by the current actions of one tribe, it
will prevent any other tribes, including my own tribe,
from trying to renege on the commitments and promises
relied upon by the voters when they authorized tribes
in Arizona to conduct Las Vegas-style gaming in 2002.
(Testimony of Diane Enos, President, Salt River Pima-Maricopa
Indian Community before the Subcommittee on Indian and Alaska
Native Affairs, May 16, 2013).
As noted above, the Glendale casino project violates
commitments made to Arizona. The TO Nation cosponsored 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 property in the Glendale
area.
H.R. 1410 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. 1410 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 an Act of Congress, such as the Indian Reorganization Act
of 1934. Finally, the bill has no effect 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
action 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 the federal 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 are 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 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.
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 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
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 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 with the Ninth Circuit
Court of Appeals. On May 20, 2013, the Ninth Circuit Court
asked the Interior Department to justify the interpretation of
the meaning ``within the city.''
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, May 20, 2008, p. 29358).
This 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 House Members voted to eliminate the Indian
land claim exception altogether and to impose additional
restrictions on off-reservation gaming (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. 1410 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.
COMMITTEE ACTION
H.R. 1410 was introduced on April 9, 2013, 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 May 16, 2013, the
Subcommittee held a hearing on the bill. On July 24, 2013, the
full Natural Resources Committee met to consider the bill. The
Subcommittee on Indian and Alaska Native Affairs was discharged
by unanimous consent. Congressman Raul Grijalva (D-AZ) offered
an amendment designated .052 to the bill; the amendment was not
adopted by voice vote. No further amendments were offered, and
the bill was then adopted and ordered favorably reported to the
House of Representatives by a bipartisan roll call vote of 35
to 5, 1 present, 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. 1410--Keep the Promise Act of 2013
H.R. 1410 would prohibit gaming (defined as gambling other
than social games for prizes of minimal value) activities on
lands in the Phoenix, Arizona, metropolitan area that have been
taken into trust for the benefit of the Tohono O'odham Tribe
after April 9, 2013. CBO estimates that implementing the bill
would have no significant impact on the federal budget.
Enacting H.R. 1410 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
The prohibition on gaming activities would be an
intergovernmental mandate as defined in the Unfunded Mandates
Reform Act (UMRA) on the Tribe. Based on information from the
Tribe about when, absent enactment of this bill, it expects to
begin collecting revenue from the proposed casino and the
uncertainity 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 ($75 million in 2013, adjusted annually for
inflation). H.R. 1410 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 the
impact on state, local, and tribal governments). 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
implementing the bill would have no significant impact on the
federal budget.
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 prohibit gaming activities on
certain Indian lands in Arizona until the expiration of certain
gaming compacts.
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.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
H.R. 1410 will break the United States' solemn promise to
the Tohono O'odham Nation in order to placate a few wealthy
tribes' gaming monopoly, and will be an ugly mark on Congress'
relations with all Indian tribes. This legislation not only
upsets settled law, potentially subjecting the United States to
new liabilities for breach of trust, breach of contract, and
takings claims valued in the hundreds of millions of dollars,
but it also creates a dangerous precedent for hundreds of
tribal-state compacts and land and water rights settlements
nationwide and impugns the federal trust responsibility. The
House should reject this irresponsible legislation.
In the 1950s the United States Army Corps of Engineers
constructed the Painted Rock Dam, which caused the repeated
flooding, devastation, and destruction of nearly 10,000 acres
of the Nation's Gila Bend Reservation. In the mid-1980s the
Nation and the United States Congress attempted to reach a
negotiated settlement to compensate the Nation for the loss of
its reservation lands and associated water rights while
relieving the United States of its substantial liabilities. The
result of these negotiations was the 1986 Gila Bend Indian
Reservation Lands Replacement Act.\1\ The Gila Bend Act
entitles the Tohono O'odham Nation to acquire 9,880 acres of
reservation replacement lands in Arizona within Pima, Pinal, or
Maricopa Counties, subject to certain enumerated conditions, in
order to replace its reservation lands flooded by the Painted
Rock Dam.\2\ The Gila Bend Act specifically provides that the
Nation's reservation replacement lands can be used for economic
development purposes and ``shall be deemed to be a Federal
Indian Reservation for all purposes.''\3\ The Gila Bend Act
also settled 36,000 acre feet of senior reserved water rights
underlying the Gila Bend Reservation.
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\1\Public Law 99-503.
\2\Id. at Sec. 6.
\3\Id. at Sec. 6(d).
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H.R. 1410 catastrophically diminishes the compensation the
United States promised Tohono O'odham when it agreed to settle
its land and water claims against the United States in 1986 by
unilaterally inserting new geographic restrictions on the
Nation's use of its reservation replacement lands. This
legislation also reintroduces the Nation's 36,000 acre feet of
reserved water rights into both long-settled and ongoing water
rights litigation. This damaging precedent would mark the first
and only time in modern history that the United States has
unilaterally reneged on an Indian land or water rights
settlement. This bill sends a clear message across Indian
Country that negotiated settlements with the United States are
not a viable option, which in turn will lead to more litigation
and increased expenses borne by the American taxpayer.
H.R. 1410 is an obvious attempt to legislatively prevent
the Nation from exercising its right to compete in the open
market alongside its tribal neighbors for gaming revenue. The
legislation draws a legislatively mandated monopoly zone around
the lucrative Phoenix metropolitan gaming market to prevent the
Nation from gaming on lands that it is attempting to take into
trust status as reservation replacement lands pursuant to the
Gila Bend Act. The bill's sole objective is to protect the
established tribal gaming interests in the Phoenix area, while
stifling free market competition and killing thousands of jobs
that the Tohono O'odham project would create.
This legislation is premised on false claims that have
already been raised in, and dismissed by federal courts.\4\
Wealthy gaming interests opposed to the Nation's plans alleged
that the Nation's reservation replacement lands were not
eligible for gaming under the Indian Gaming Regulatory Act
(IGRA). However, the district court ruled that ``the Glendale-
area land acquired by the Nation . . . qualifies for gaming,''
and that ``gaming on that land is expressly permitted by the
federal statute [IGRA] that authorizes Indian gaming.''\5\
These wealthy gaming interests also claimed that Arizona
tribal-state gaming compact prohibited the Nation from opening
a gaming facility in the Phoenix area. But the district court
found that ``no reasonable reading of the Compact could lead a
person to conclude that it prohibited new casinos in the
Phoenix area.''\6\ Finally, these parties argued that the
Nation promised other tribes and the State of Arizona that the
Nation would not game in the Phoenix area, even though the
Nation's compact explicitly allows it to do so. The district
court rejected this argument, not on sovereign immunity
grounds, but by holding that ``the parties did not reach such
an agreement.''\7\ In doing so, the court pointed to the
compact's integration clause (Section 25), which states that
``[t]his compact contains the entire agreement of the parties .
. . and no other statement, agreement, or promise made by any
party, officer, or agent of any party shall be valid or
binding.''\8\
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\4\See, e.g., State of Arizona, et al. v. Tohona O'odham Nation,
No. CV-11-00296-PHX-DGC Slip ops. Doc. No. 216 (D. Ariz. May 7, 2013) &
Doc. No. 225 (D. Ariz. June 25, 2013).
\5\Id. Doc. No. 216 at 7 & 3.
\6\Id. at 25.
\7\Id. at 2.
\8\Id.
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Accordingly, far from keeping a phantom promise, the real
purpose of H.R. 1410 is to re-write the Arizona tribal-state
gaming compact, setting a dangerous precedent for all tribal-
state gaming compacts. The Arizona tribal-state gaming compact
was the result of Proposition 202, the voter-approved measure
that governs Class III Indian gaming in Arizona. When the
voters approved Proposition 202 they understood that it would
dictate how and where Class III gaming could take place in the
State. H.R. 1410 would unilaterally amend the Arizona tribal-
state gaming compact by inserting a new restriction that the
tribes and the State never negotiated, that Arizona voters did
not approve, and that the district court has indicated is not
reasonable.\9\ Congress should not interfere with purely local,
voter-approved agreements that have been upheld by federal
courts. Such actions undermine Congress' intent in IGRA when it
formulated the tribal-state gaming compact process. H.R. 1410
puts all tribal-state compacts at risk of collateral attack by
Congress. These compacts are a result of good faith, arms-
length negotiations in which tribes and states work together to
agree how Class III Indian gaming will be conducted. A crucial
aspect of tribal-state gaming compacts, just like any other
contract, is the certainty that they create. If Congress
unilaterally amends the Arizona tribal-state gaming compact--in
this case to protect a couple of wealthy tribes' monopoly on a
huge market--then all tribal-state gaming compacts are
vulnerable to attack.
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\9\Id. at 21.
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As a policy matter, negotiated and legislatively enacted
settlements between the United States and Indian tribes are the
most efficient and effective means for settling outstanding
claims and righting past grievances. They also represent
Congressional affirmations of the federal trust responsibility
that is the foundation of the government-to-government
relationship between Indian tribes and the federal government.
This trust responsibility is paramount in Congress' legislative
interactions with Indian tribes, which is why most, if not all,
modern legislation dealing with Indian tribes contains a
statement reaffirming the federal trust responsibility.
Congress thus routinely does, and should, recognize the
seriousness of its actions and their impact on this sacred duty
towards Indian tribes. Unfortunately, H.R. 1410 blatantly
undermines Congress' trust responsibility to the Tohono O'odham
Nation while unilaterally reneging Congress' promise in the
Gila Bend Act to compensate the Nation for the loss of its land
and water rights. Congress should focus its attention on
abiding by its 1986 promise to the Tohono O'odham instead of
accusing the Nation of breaking a phantom promise, claims that
the courts have already rejected. Sadly, the only purpose for
the ``Keep the Promise Act'' is to re-write a tribal-state
compact for the sole benefit of tribal competitors who would
solidify their gaming monopoly through this legislation.
Stripping the Tohono O'odham Nation of its legally-affirmed
right to game in certain areas, even if only until 2027,
creates new takings, breach of contract and breach of trust
claims against the United States, thus exposing taxpayers to
significant new liabilities. 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.
Raul M. Grijalva.