[House Report 116-165]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-165
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YSLETA DEL SUR PUEBLO AND ALABAMA-COUSHATTA TRIBES OF TEXAS EQUAL AND
FAIR OPPORTUNITY SETTLEMENT ACT
_______
July 22, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 759]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 759) to restore an opportunity for tribal
economic development on terms that are equal and fair, and for
other purposes, 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. 759 is to restore an opportunity for
tribal economic development on terms that are equal and fair.
Background and Need for Legislation
The Ysleta del Sur Pueblo, also known as the Tigua Tribe,
is a federally recognized tribe located approximately thirteen
miles from El Paso, TX. The Alabama-Coushatta Tribe of Texas is
a federally recognized tribe located in Polk County, TX.
As part of Indian policy followed by the federal government
from the 1940s through the 1960s, both tribes were terminated
by an act of Congress. On August 23, 1954, President Dwight
Eisenhower signed Public Law 83-627, 68 Stat. 768, therein
terminating the trust relationship between the Alabama-
Coushatta Tribe of Texas and the United States. The Ysleta del
Sur Pueblo became formally terminated on April 12, 1968, with
the enactment of Public Law 90-287, 82 Stat. 93. Trusteeship of
both tribes was transferred to the State of Texas, where it
remained until August 1987.
On August 18, 1987, the Ysleta del Sur Pueblo and Alabama
and Coushatta Indian Tribes of Texas Restoration Act was
enacted into law, thereby restoring federal recognition to both
tribes.\1\ The Restoration Act was passed at a time when Indian
gaming was just emerging and federal regulations had not yet
been implemented, leaving states concerned about a possible
lack of regulation of the Indian gaming industry. Therefore,
the state of Texas insisted on language in the Restoration Act
that effectively prevented the tribes from gaming by
stipulating that ``All gaming activities which are prohibited
by the laws of the State of Texas are hereby prohibited on the
reservation and on lands of the tribe.''\2\
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\1\Pub. L. No. 100-89, 101 Stat. 666.
\2\Id. Sec. Sec. 107, 207 (codified at 25 U.S.C. Sec. Sec. 1300g-6,
737).
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Just over a year later, Congress enacted the Indian Gaming
Regulatory Act (IGRA). Among IGRA's stated purposes were to
establish a new nationwide regulatory framework for tribal
gaming on Indian lands within a tribe's jurisdiction and to
promote ``tribal economic development, self-sufficiency, and
strong tribal governments.''\3\
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\3\25 U.S.C. Sec. 2702(1).
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When the Restoration Act was enacted in 1987, Texas law
generally prohibited gaming with the exception of charitable
bingo. However, those circumstances changed rapidly in the late
80s and early 90s. Texas now offers a variety of lottery games,
including Powerball and Mega Millions, and allows horse and dog
track operations. Since the change to Texas gaming law and the
enactment of IGRA, both the Alabama-Coushatta Tribe and the
Ysleta del Sur Pueblo have opened gaming facilities. However,
the state of Texas has used the language in the Restoration Act
to repeatedly stymie both tribes' ability to lawfully game
under IGRA. Furthermore, the only other federally recognized
tribe in Texas--the Kickapoo Traditional Tribe of Texas--is
allowed to game, and as such operates a successful gaming
facility.\4\
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\4\The tribe was recognized in 1983 through enactment of Pub. L.
No. 97-429, 96 Stat. 2269. This statute makes no reference to gaming.
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H.R. 759 will bring parity to all the Texas tribes and
allow the Ysleta del Sur Pueblo and the Alabama-Coushatta Tribe
of Texas the ability to game under the IGRA in the same manner
as the Kickapoo Traditional Tribe of Texas.
Committee Action
H.R. 759 was introduced on January 24, 2019, by
Representative Brian Babin (R-TX). The bill was referred solely
to the Committee on Natural Resources, and within the Committee
to the Subcommittee for Indigenous Peoples of the United
States. On June 19, 2019, the Natural Resources Committee met
to consider the bill. The Subcommittee was discharged by
unanimous consent. No amendments were offered, and the bill was
ordered favorably reported to the House of Representatives by
voice vote.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress--the following hearing was used to develop or
consider H.R. 759: full committee markup held on June 19, 2019.
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 and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 9, 2019.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 759, the Ysleta
del Sur Pueblo and Alabama-Coushatta Tribes of Texas Equal and
Fair Opportunity Settlement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Ysleta del Sur Pueblo and Alabama-Coushatta Indian
Tribes of Texas Restoration Act (Restoration Act) prohibits
those two tribes from conducting gaming activities on their
reservations--such as slot-machine gambling--if those
activities are prohibited by the laws of Texas. That act could
be in conflict with another federal law, the Indian Gaming
Regulatory Act (IGRA), which generally provides that Indian
tribes have the exclusive right to regulate gaming on their
reservations so long as certain conditions are met. In March
2019, the Fifth Circuit Court of appeals upheld a federal
district court ruling that the Restoration Act, not the IGRA,
applies in determining whether the tribes may offer certain
gaming activities in Texas.
H.R. 759 would amend the Restoration Act to clarify that
the act shall not be construed to preclude or limit the
applicability of the IGRA. The bill would effectively make the
IGRA the controlling federal statue concerning gaming matters
with regard to the Ysleta del Sur Pueblo and the Alabama-
Coushatta tribes in Texas. If the legislation is enacted, it
could result in an expansion of gaming on those tribal
reservations in Texas, depending on the outcome of negotiations
between the tribes and state.
Using information from the Bureau of Indian Affairs, CBO
expects that the agency's Office of Indian Gaming could incur a
small increase in administrative costs to review and approve
any tribal-state gaming compacts, tribal revenue allocation
plans, and determinations of eligibility for gaming on lands
acquired in trust. CBO estimates that those costs would not
exceed $500,000; any spending would be subject to the
availability of appropriated funds.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill is to restore an opportunity for tribal
economic development on terms that are equal and fair.
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.
Unfunded Mandates Reform Act Statement
This bill contains no unfunded mandates.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
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):
YSLETA DEL SUR PUEBLO AND ALABAMA AND COUSHATTA INDIAN TRIBES OF TEXAS
RESTORATION ACT
* * * * * * *
SEC. 301. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to preclude or limit
the applicability of the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.).
ADDITIONAL VIEWS
The consideration of bills like H.R. 759, which authorizes
the Alabama-Coushatta Tribe and the Ysleta del Sur Pueblo (also
called the Tigua Tribe) to open casinos through a preemption of
Texas law, is never easy. Federal legislation to preempt the
jurisdiction of non-consenting States and create Indian casinos
has rarely been considered in Congress. Perhaps the last time a
similar bill was enacted was in the Omnibus Indian Advancement
Act of 2000 (Public Law 106-568). In that bill, an infamous
``Midnight Rider'' sponsored by the former Ranking Democratic
Member of the Committee was airdropped in the ``Miscellaneous
Technical Provisions'' part of the suspension text. The
provision waived the National Environmental Policy Act and
ordered the Secretary of the Interior to acquire land in trust
for a casino in San Pablo, California, without the consent of
the California Governor. It is unclear if the Governor of
California, not to mention the two U.S. Senators from the
Golden State, had been aware of the rider until the Act in
which it was buried was signed into law.
News of the casino rider blew up in the Bay Area, forming a
cloud over all future casino legislation. Hence, the rarity of
measures such as H.R. 759.
It must be said that H.R. 759 is refreshingly transparent
in that it is a straighforward bill and it has undergone
hearings (in prior Congresses, not the current one) and a
Committee markup. The legislation also enjoys bipartisan
support in the Tribes' home state of Texas, including several
bipartisan Members of the Texas Delegation (beginning with
Representatives Babin and Hurd, who represent the Tribes in the
House) and various local government officials, businesses, and
private citizens. For many Members, the argument that the two
Tribes are not on equal footing with another tribe in Texas
that has Indian Gaming Regulatory Act (IGRA) gambling rights,
is persuasive.
I would like to support H.R. 759, but I cannot. H.R. 759 is
opposed by the Governor of Texas. The Governor argues the bill
violates a broad ban on gambling contained in the Texas
Constitution and in Texas state law. The House has been
reluctant to approve measures that modify or eliminate State
jurisdiction to create Indian casinos without the consent--or
at a minimum, the non-objection--of the affected State. This is
particularly the case where gambling is concerned, as many see
the vice as a kind of tax on the poor.
In matters reserved to State regulation under the 10th
Amendment, preempting State or local law without the consent of
the affected State is a troubling precedent to set, even when
it's for the benefit of tribes. Moreover, the Alabama Coushatta
and Tigua Tribes had agreed to be subject to State of Texas
gambling restrictions in the first place.
The following is an overview of how the gambling ban H.R.
759 would reverse was put in place, and why I think the scale
is tipped in favor of the Governor's stance when weighed
against the impressive display of support from several
bipartisan Members of the Texas Delegation.
The ``Ysleta del Sur Pueblo and Alabama and Coushatta
Indian Tribes of Texas Restoration Act'' (Public Law 100-89)
prohibit the two Texas Tribes from conducting any gambling that
is prohibited under the laws of Texas. The gambling restriction
was an accident. It was the product of a compromise necessary
to enable Senate passage of the bill to restore the Tribes'
federal recognition.\1\ The two Tribes even memorialized their
pledge not to conduct gaming that is prohibited under Texas law
through passage of tribal resolutions.
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\1\Letter from Representative Coleman (D-TX) to the Chairman of the
Senate Select Committee on Indian Affairs, March 18, 1986, expressing
concern that objections to gambling by officials in Texas threatened
Senate passage of H.R. 1344, the tribes' restoration bill. The letter
is available in the 99th Congress Natural Resources Committee archive
for H.R. 1344 (99th Congress).
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Previous versions of the restoration act had died over
concern from within Texas over the potential for the Tribes to
operate unregulated bingo.
The restoration act can thus be reasonably characterized as
a compromise--a deal--between the State of Texas and the two
Tribes. But the only parties to the deal supporting H.R. 759
are the Alabama Coushatta Tribe and the Tigua Tribe. In the
last year, Governor Abbott has affirmed in writing opposition
to this bill and the bill's identical predecessor in the 115th
Congress.
The Tribes have long sought to override the deal they made
(since 1992) through litigation. Failing in the courts, they're
asking Congress to change the deal.
The gambling restrictions placed on the two Tribes are
neither unique nor unfair. The right of tribes to operate
casinos is not absolute. IGRA itself imposes certain limits on
the power of tribes to run casinos without the consent of their
States. For example, Indian gambling is completely prohibited
in my State of Utah.
Another example is in the act passed by this Committee, the
full House, the Senate, and signed into law by the President to
ban six Virginia tribes from conducting any gambling under IGRA
on their lands.\2\ Similarly, the Democratic-led House in the
110th and 111th Congress passed a bill to extend federal
recognition to the Lumbee Tribe of North Carolina with
provisions explicitly barring the Tribe from conducting
gambling under IGRA.\3\
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\2\``Thomasina E. Jordan Indian Tribes of Virginia Federal
Recognition Act of 2017'' (Public Law 115-121).
\3\See H.R. 65 (110th Congress) and H.R. 31 (111th Congress).
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Nearly all fee-to-trust and other tribal bills considered
in Congress are passed only when there are clear bans on gaming
included.
This is a tough call for me because I respect the wish of
the sponsor of H.R. 759 to enact legislation specifically
affecting the district he was elected to represent. I also
recognize the support of various local governments, citizens
groups, and bipartisan members cosponsoring H.R. 759.
However, because of the unambiguous opposition of the
Governor of Texas and my concern with federally preempting
State jurisdiction without the consent of the State, I cannot
support H.R. 759.
Rob Bishop.
DISSENTING VIEWS
Chairman Grijalva, Ranking Member Bishop, and Members of
the Committee, thank you for the opportunity to submit comment
on H.R. 759, the Ysleta del Sur Pueblo and Alabama-Coushatta
Tribes of Texas Equal and Fair Opportunity Settlement Act
(Babin, R-TX). I write this opinion of dissent to H.R. 759 to
voice concerns of myself, and those of my constituents, whose
livelihoods are greatly impacted by gaming operations. Due to
the heavy presence of gaming in Nevada, it is important to my
constituents that any and all gaming operations established in
America are established and regulated in a fair way, that shows
parity with the regulations faced by casinos in my district. I
believe the casinos established by H.R. 759 will have an unfair
advantage over the casinos in my State, which is why I ask
Congress to oppose this legislation.
It is important that all gaming operations conducted on
trust lands respect the original intent of the Indian Gaming
Regulatory Act (IGRA), which was passed by Congress in 1988 to
establish the legal framework to regulate gaming on Indian
Reservations. IGRA was passed to regulate gaming on tribal
lands as a means to ensure that gaming on tribal lands occurred
to the benefit of Indian tribes and their sovereignty. At a
time when Indian Tribes were being taken advantage of and
abused, often by organized crime entities and other people
looking to use Indian Tribes' sovereign power for their
economic gain, the IGRA was a much-needed bill to protect the
sovereignty of Indian Tribes and allow them to engage in gaming
that would benefit the tribe, and only tribe. This foundational
intent of IGRA is an integral part of federal law that I
wholeheartedly support.
However, since the passage of the IGRA, I believe that the
original intent of IGRA has been extended to allow Tribes to
regulate gaming operations that were not originally envisioned
by Congress. Specifically, I fear that the gaming now allowed
under Class II gaming, which Indian Tribes and the Federal
Government have the sole authority to regulate, has greatly
exceeded the original intent of Congress when it passed IGRA.
The gaming now allowed under Class II closely mirrors that of
Class III, the gaming operations found in my state that are
subject to heavy regulations and approval from State and local
governments. As such, H.R. 759 allows the Ysleta del Sur Pueblo
and Alabama-Coushatta Tribes to set up gaming operations that
were not originally intended in IGRA and are opposed by the
state of Texas. Prior to passing any legislation to allow more
Native American Tribes to establish casinos against the wishes
of the states in which they lie, Congress must revisit the
definition of Class II gaming and provide updated clarification
addressing the types of gaming Tribes can regulate on their
own. I hope the Committee hears my concerns and I look forward
to opposing H.R. 759 and working with my colleagues to develop
updated gaming regulations.
Steven Horsford.
[all]