[House Report 113-210]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    113-210

======================================================================
 
                      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.
---------------------------------------------------------------------------
    \1\Public Law 99-503.
    \2\Id. at Sec. 6.
    \3\Id. at Sec. 6(d).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \9\Id. at 21.
---------------------------------------------------------------------------
    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.

                                  
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