[House Report 116-165]
[From the U.S. Government Publishing Office]


116th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                    {       116-165

======================================================================



 
 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\25 U.S.C. Sec. 2702(1).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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]