[Senate Report 116-307]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 607
116th Congress       }                           {              Report
                                 SENATE
 2d Session          }                           {             116-307

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

 
TO CLARIFY CERTAIN PROVISIONS OF PUBLIC LAW 103-116, THE CATAWBA INDIAN 
  TRIBE OF SOUTH CAROLINA LAND CLAIMS SETTLEMENT ACT OF 1993, AND FOR 
                             OTHER PURPOSES

                                _______
                                

                December 9, 2020.--Ordered to be printed

                                _______
                                

           Mr. Hoeven, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 790]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 790) to clarify certain provisions of Public Law 103-
116, the Catawba Indian Tribe of South Carolina Land Claims 
Settlement Act of 1993, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment (in the nature of a substitute) and recommends that 
the bill (as amended) do pass.

                                PURPOSE

    The purpose of S. 790 is to provide authority for the 
Secretary of the U.S. Department of the Interior to take land 
into trust in Cleveland County, North Carolina, on behalf of 
the Catawba Indian Tribe (Catawba or Tribe), for the purpose of 
conducting Indian gaming.

                          NEED FOR LEGISLATION

    Section 14 of the Catawba Indian Tribe of South Carolina 
Land Claims Settlement Act of 1993 (1933 Settlement Act) 
prohibits the Tribe from utilizing the Indian Gaming Regulatory 
Act (IGRA) and conducting gaming activities within their 
lands.\1\ The Tribe is subject to state gaming law and 
regulations, which prohibit all major forms of gambling.
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    \1\Section 14 of the Settlement Act states: (1) IGRA shall not 
apply to the Tribe, and (2) The Tribe shall have the rights and 
responsibilities set forth in the Settlement Agreement and the State 
[of South Carolina] Act with respect to the conduct of games of chance. 
Except as specifically set forth in the Settlement Agreement and the 
State Act, all laws, ordinances, and regulations of the State, and its 
political subdivisions, shall govern the regulation of gambling devices 
and the conduct of gambling or wagering by the Tribe on and off the 
Reservation.
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    Under current state law, South Carolina allows [casino 
style] gaming on casino cruises that originate in South 
Carolina ports and is conducted three miles from South 
Carolina's shores. The Tribe has sued in South Carolina State 
Court to enforce its right to game under that law,\2\ but the 
South Carolina State Supreme Court rejected the Tribe's 
argument that casino cruises triggered the Tribe's right to 
game under Section 14 of the Settlement Act. The court also 
held that South Carolina only authorized gaming outside of its 
boundaries (beyond the three-mile limit) and not within the 
state, effectively foreclosing the Tribe's right to conducting 
gaming in South Carolina.
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    \2\Catawba Indian Nation v. State, 756 S.E. 2d 900 (S.C. 2014).
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    Consequently, the Tribe is seeking legislative action to 
place lands located outside of the state in neighboring North 
Carolina into trust for the purposes of conducting class III 
gaming under IGRA. North Carolina allows for gaming through its 
state lottery and the Eastern Band of Cherokee Indians in North 
Carolina conduct class III gaming under IGRA.

                               BACKGROUND

    History of the Federal Relationship with Catawba. The 
history of the Catawba Tribe is similar to many ``first 
contact'' Tribal nations located in the south and eastern parts 
of the United States. The ``first contact'' with pre-colonial 
settlers' attempts to lay claim to the ``New World'' was 
subject to multijurisdictional treaties. At first, these 
multijurisdictional treaties may have been ratified between an 
Indian Tribe and another sovereign, such as the King of 
England. However, these treaties would then be renegotiated 
with the newly formed colonial governments and eventually 
affirmed by the newly founded United States of America. These 
early treaties between various sovereigns and Indian Tribes 
included terms that recognized territorial boundaries, hunting 
and fishing rights, access to commerce, and other inherent 
Tribal rights.
    From ``first contact'' to present day, many colonial era 
Tribes attempted to resolve or amend ambiguities in the earlier 
treaties with different sovereigns that transitioned into the 
role of ``treaty partners'' with those Tribes. The U.S. Supreme 
Court recognized this transition of sovereigns and held that 
the exclusive right of the British government to the lands 
occupied by the Indians passed to that of the United States.\3\
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    \3\Johnson v. M'Intosh, 21 U.S. 543 (1823).
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    In an effort to resolve these centuries' old disputes, 
Congress passed the Act of August 13, 1946\4\ that created the 
Indian Claims Commission (ICC). The purpose of the ICC was to 
hear claims from any Indian Tribe, band, or other identifiable 
group of American Indians against the United States. Tribes 
brought claims against the United States through the ICC and 
sought compensation for the loss of ``aboriginal title'' to 
their lands. In 1978, the ICC adjourned and transferred any 
pending cases to the United States Court of Claims.\5\ These 
land claim suits became land claim settlements that involved 
the aggrieved Indian Tribe, the federal government, and any 
states that may have been a party to the original claim. 
Executed land claim settlements would often result in the 
extinguishment of Tribal claims to aboriginal title. Since the 
adjournment of the ICC, Congress, which has sole and plenary 
authority to extinguish aboriginal title, is required to ratify 
these settlements in statute.
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    \4\Pub. L. No. 79-726 (1947).
    \5\Pub. L. No. 94-465 (1976).
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    In 1760 and 1763, the Catawba Tribe entered into treaties 
with the Crown of England. Through these agreements, the Tribe 
ceded vast portions of its aboriginal territory in current day 
North and South Carolina for the guarantees of being settled on 
a 144,000-acre reservation.\6\
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    \6\Pub. L. No. 103-116 (1993).
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    In 1943, the United States entered into an agreement with 
the Tribe and South Carolina to provide services to the Tribe 
and its members. South Carolina purchased 3,434 acres of land 
and conveyed it to the Secretary of the Interior in trust for 
the Tribe. The Tribe also organized under the Indian 
Reorganization Act.\7\
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    \7\Id.
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    Congress took subsequent action in 1959 and enacted the 
Catawba Tribe of South Carolina Division of Assets Act.\8\ This 
Act released the federal government of its obligation under the 
1943 agreement, thus terminating the federal trust relationship 
with the Tribe and disestablishing the Tribe's reservation.\9\
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    \8\25 U.S.C. 931-938 (1959).
    \9\Pub. L. No. 103-116 (1993).
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    In 1980, the Tribe sued in federal court to regain 
possession of their original treaty reservation. At that time, 
the Tribe argued that their treaty rights were preserved under 
the 1959 Act. To resolve the lawsuit brought by the Tribe, 
Congress passed the Catawba Indian Tribe of South Carolina Land 
Claims Settlement Act of 1993 (1933 Settlement Act).\10\
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    \10\Id.
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    The 1993 Settlement Act restored and extended federal 
recognition, rights, and services to the Tribe by repealing the 
original 1959 Act that terminated the Tribe. The Act also 
authorized settlement appropriations for the Tribe, ratified 
prior extinguishment of the Tribe's claim to aboriginal lands, 
set forth procedures for organizing the Tribal government and 
its membership, established a fund for acquiring more lands for 
the Tribe. Notably, the Settlement Act made the Indian Gaming 
Regulatory Act (IGRA) inapplicable to the Tribe, but permitted 
games of chance as provided under South Carolina law.
    Indian Gaming Under South Carolina State Law. Section 14 of 
the Catawba Indian Tribe of South Carolina Land Claims 
Settlement Act of 1993 requires that: (1) IGRA shall not apply 
to the Tribe; and (2) all laws, ordinances, and regulations of 
the state [of South Carolina], and its political subdivisions, 
govern the regulation of gambling devices and the conduct of 
gambling or wagering by the Tribe on and off the Reservation.
    Agency Action. On March 12, 2020, Assistant Secretary--
Indian Affairs (AS-IA) Tara Sweeney posted in the Federal 
Register that the Department of the Interior (Department) made 
the final agency determination to acquire 16.57 acres, more or 
less, of land in trust for the Catawba Indian Nation for gaming 
and other purposes.\11\ As part of this agency action, the 
Department used newly established guidance\12\ from Solicitor, 
Daniel H. Jorjani, to determine if the Secretary of the 
Interior had authority to take land into trust for an Indian 
Tribe under the authority of the Indian Reorganization Act of 
1934. On July 10, 2020, this agency action was made final, and 
the land was placed into trust on behalf of the tribe.
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    \11\Land Acquisitions; Catawba Indian Nation, Kings Mountain 
Parcel, North Carolina, 85 Fed. Reg. 17,093 (Mar. 12, 2020).
    \12\Daniel J. Jorjani, Solicitor, U.S. Department of the Interior 
Office of the Solicitor General, Procedures for Determining Eligibility 
for Land-into-Trust under the First Definition of ``Indian'' in Section 
19 of the Indian Reorganization Act (Mar. 10, 2020), available at 
https://www.bia.gov/sites/bia.gov/files/assets/bia/ots/pdf/
Solicitors_Procedures_for_Determining_Eligibility_for_Land_into_Trust_un
der_Category_1.pdf. The Committee notes that this guidance is the 
subject of ongoing litigation.
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                                OVERVIEW

    This legislation, S. 790, would amend the Catawba Indian 
Tribe of South Carolina Land Claims Settlement Act of 1993 to:
           Authorize the Catawba Indian Nation to own 
        and operate a gaming facility on lands described in the 
        bill, which are located in Cleveland County, North 
        Carolina;
           Mandate the facility located on the newly 
        acquired lands will be regulated in accordance with the 
        Indian Gaming Regulatory Act (IGRA), except for section 
        20, which will not apply to the lands described in this 
        bill;\13\
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    \13\Section 20 of IGRA prohibits gaming on trust lands acquired 
after the 1988 passage of IGRA, unless an exception outlined in this 
section applies. The main exceptions are: (1) the Secretary of the 
Interior and the governor of the state affected by the gaming proposal 
must agree that a gaming establishment on newly acquired lands would be 
in the best interest of the Indian Tribe and its members, and that 
gaming establishment would not be detrimental to the surrounding 
community; (2) the land taken into trust is part of a ``land claim 
settlement''; (3) the land taken into trust is part of a newly 
recognized Tribe's initial reservation; or (4) the land taken into 
trust is part of the restoration of lands for an Indian Tribe that is 
has been restored to federal recognition. (25 U.S. Sec. 2719 (1988)).
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           Authorizes the Secretary of the Interior to 
        take land into trust on behalf of the Catawba Tribe for 
        the purpose of conducting gaming;
           Reserves the rights of all entities that are 
        a party to the Catawba Indian Tribe of South Carolina 
        Land Claims Settlement Act of 1993; and
           Provide the legal description of the land 
        that the Secretary of the Interior may take into trust 
        on behalf of the Tribe for conducting gaming 
        operations.

                          LEGISLATIVE HISTORY

    On March 13, 2019, Senator Graham introduced S. 790. 
Senators Burr and Tillis joined as co-sponsors. The bill was 
referred to the Committee on Indian Affairs (Committee). On May 
1, 2019, the Committee held a duly called legislative hearing 
on S. 790. Principal Deputy Assistant Secretary of Indian 
Affairs at the U.S. Department of the Interior, John Tahsuda, 
testified. Principal Deputy Assistant Secretary Tahsuda's 
written testimony expressed several technical concerns with the 
bill. The Eastern Band of Cherokee Indians of North Carolina 
also provided testimony with concerns to S. 790. On November 
18, 2020, the Committee held a duly called business meeting to 
consider S. 790. Senator Moran offered a substitute amendment, 
which made a number of technical, clarifying, conforming, and 
substantive changes to the bill as introduced.
    Amendment. Senator Moran's amendment affirms the U.S. 
Department of the Interior's action to take the parcel into 
trust on behalf of the Tribe for the purpose of gaming.
    The substitute amendment strikes S. 790, as introduced, and 
inserts the following changes:
           Clarifies that the 1993 Settlement Act's 
        Section 14 gaming prohibitions continue to apply to 
        lands in South Carolina;
           Allows for gaming to be conducting by the 
        Tribe in states other than South Carolina;
           Directs that gaming must be conducted in 
        accordance with the IGRA and is subject to Section 
        1166-1168 of title 18 of the U.S. Code,
           Specifically subjects the 16.57 acres and 
        any future lands taken into trust for the Tribe, to the 
        requirements of Section 20(b)(1)(B)(iii) of the IGRA.
    The Committee adopted the amendment and ordered the bill, 
as amended, reported favorably.
    In the U.S. House of Representatives, Representative G.K. 
Butterfield introduced a similar, but not identical bill, H.R. 
8255, the Catawba Indian Nation Lands Act, which seeks to 
reaffirm AS-IA Sweeney's March 12, 2020 decision, on September 
15, 2020, along with Representatives James Clyburn, Joe 
Cunningham, Alma Adams, David Price, Dan Bishop, William 
Timmons, and Joe Wilson as original co-sponsors. The bill was 
referred to the Subcommittee on Indigenous People of the United 
States on September 22, 2020. A legislative hearing was held on 
H.R. 8255, on September 24, 2020. No further action has been 
taken.
    The Congressional Budget Office (CBO) has not issued a cost 
estimate prior to the end of the 116th Congress. However, the 
CBO did issue a cost estimate for a House bill, H.R. 8255, that 
is identical to the Committee passed bill, as amended. The CBO 
stated H.R. 8255 would not affect any direct spending or 
revenues.

                SECTION-BY-SECTION ANALYSIS, AS AMENDED

Section 1. Short title

    Section 1 sets forth the short title of the bill as the 
``Catawba Indian Lands Act.''

Section 2. Application of current law

    Section 2 affirms the application of Section 14 of the 
Catawba Indian Tribe of South Carolina Claims Settlement Act of 
1993,\14\ which requires the state of South Carolina to approve 
Catawba gaming within the state. This section also clarifies 
that gaming conducted by the Catawba tribe outside the state of 
South Carolina shall be subject to the Indian Gaming Regulatory 
Act.\15\
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    \14\Pub. L. No. 103-116 (1993).
    \15\Pub. L. No. 100-497 (1988).
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Section 3. Reaffirmation of status and actions

    Section 3. Reaffirms the action by the U.S. Department of 
the Interior to take the land into trust on behalf of the 
Catawba Tribe, and confirms that nothing else within the 
Catawba Indian Tribe of South Carolina Claims Settlement Act of 
1993, including water rights, rights of way, or future 
authority to take land into trust, will be diminished by this 
legislation. Finally, this section also affirms that the parcel 
taken into trust meets the section 20(b)(1)(B)(iii) ``restored 
lands'' exception of the Indian Gaming Regulatory Act.

                    COST AND BUDGETARY CONSIDERATION

    The following cost estimate was prepared by the 
Congressional Budget Office for H.R. 8255, the Catawba Indian 
Nation Lands Act, as introduced in the House of Representative; 
S. 790, as amended, mirrors exactly H.R. 8255. Therefore, the 
following CBO estimate, as prepared for H.R. 8255, is being 
used for S. 790 as amended.

                                                  December 1, 2020.

 CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF H.R. 8255, THE CATAWBA INDIAN NATION LANDS ACT, AS INTRODUCED IN THE HOUSE OF REPRESENTATIVES
                                                                  ON SEPTEMBER 15, 2020
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                                                                                         By fiscal year, millions of dollars--
                                                             -------------------------------------------------------------------------------------------
                                                               2021   2022   2023   2024   2025   2026   2027   2028   2029   2030  2021-2025  2021-2030
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                                                       Net Increase or Decrease (-) in the Deficit
 
Pay-As-You-Go Effects.......................................      0      0      0      0      0      0      0      0      0      0         0          0
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    The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting 
direct spending or revenues.
    Estimates relative to CBO's March 2020 baseline.
    CBO estimates that H.R. 8255 would not affect direct 
spending or revenues. H.R. 8255 would affirm the status of 
approximately 17 acres of land in North Carolina taken into 
trust by Department of the Interior for the benefit of the 
Catawba Indian Nation. The legislation also would allow the 
tribe to operate a gaming facility on that land. If enacted, 
H.R. 8255 would affect spending subject to appropriation by the 
Bureau of Indian Affairs; CBO has not completed an estimate of 
that effect.

                      REGULATORY IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory paperwork impact that would be incurred 
in implementing the legislation. The Committee has concluded 
that enactment of S. 790 will create only de minimis regulatory 
or paperwork burdens.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no official communications from 
the Administration on the provisions of this bill.

                        CHANGES IN EXISTING LAW

    In compliance with the Standing Rules of the Senate and the 
Committee Rules, subsection 12 of rule XXVI of the Standing 
Rules of the Senate is waived. In the opinion of the Committee, 
it is necessary to dispense with subsection 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                                  [all]