[House Report 117-114]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-114
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CATAWBA INDIAN NATION LANDS ACT
_______
August 13, 2021.--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
[To accompany H.R. 1619]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1619) to clarify the status of gaming conducted
by the Catawba Indian Nation, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 1619 is to reaffirm the action taken by
the Secretary of the Interior on July 10, 2020, to place
approximately 17 acres of land located in Cleveland County,
North Carolina, into trust on behalf of the Catawba Indian
Tribe (Catawba or Tribe), for the purpose of conducting Indian
gaming subject to the provisions of the Indian Gaming
Regulatory Act of 1988.
NEED FOR LEGISLATION
Section 14 of the Catawba Indian Tribe of South Carolina
Land Claims Settlement Act of 1993\1\ (1933 Settlement Act)
prohibits the Tribe from utilizing the Indian Gaming Regulatory
Act\2\ (IGRA) and conducting gaming activities within their
lands.\3\ The Tribe is subject to state gaming law and
regulations, which prohibit all major forms of gambling.
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\1\Pub. L. No.103-116, https://www.govinfo.gov/content/pkg/STATUTE-
107/pdf/STATUTE-107-Pg1118.pdf, 107 Stat. 1118 (1993), https://
uscode.house.gov/statviewer.htm?volume=107& page=1118 (codified as
amended at various, see https://uscode.house.gov/table3/103_116.htm).
\2\Pub. L. No. 100-497, 102 Stat. 2467 (1988), https://
uscode.house.gov/statviewer.htm? volume=102&page=2467 (codified as
amended at various, see https://uscode.house.gov/table3/100_497.htm)
(statutory compilation as amended through P.L. 109-221 at https://
www.govinfo.gov/content/pkg/COMPS-1405/pdf/COMPS-1405.pdf).
\3\Section 14 of the 1993 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
and that otherwise all laws, ordinances, and regulations of the state
and its subdivisions shall control regarding gaming conducted by the
Tribe on and off the Reservation. 107 Stat. at 1136.
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Under current state law, South Carolina allows casino style
gaming that occurs on casino cruises that originate in South
Carolina ports and is conducted at least three miles from South
Carolina's shores. The Tribe sued in South Carolina state court
to assert a right to game on its reservation under that law,\4\
but the Supreme Court of South Carolina rejected the Tribe's
argument that allowing casino cruises conferred a right to
gaming under Section 14 of the Settlement Act.\5\ The court
also held that South Carolina authorized gaming only outside of
its boundaries (beyond the three-mile limit) and not within the
state,\6\ effectively foreclosing the Tribe's right to
conducting gaming in South Carolina under the casino cruises
law.
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\4\Catawba Indian Nation v. South Carolina, 756 S.E. 2d 900 (S.C.
2014).
\5\Id. at 910.
\6\Id. at 909-10.
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Consequently, the Tribe is seeking legislative action to
reaffirm the action by the Secretary of the Interior 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 southern and eastern
parts of the United States. The ``first contact'' with early
settlers' attempts to lay claim to the ``New World'' was
subject to multijurisdictional treaties. At first, these
treaties were 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 that the
exclusive right of the British government to the lands occupied
by the Indians passed to the United States.\7\
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\7\Johnson v. M`Intosh, 21 U.S. 543, 568, 584 (1823).
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In an effort to resolve these centuries-old disputes,
Congress passed the Act of August 13, 1946\8\ 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.
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\8\Ch. 959, 60 Stat. 1049 (1946), https://uscode.house.gov/
statviewer.htm?volume=60& page=1049 (previously codified as amended at
various, see https://uscode.house.gov/table3/1946_959.htm).
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In 1978, the ICC adjourned and transferred its pending
cases to the United States Court of Claims.\9\ 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 ICC's adjournment,
Congress, which has sole and plenary authority to extinguish
aboriginal title, is required to ratify these settlements in
statute.
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\9\See Pub. L. No. 94-465, 90 Stat. 1990 (1976), https://
uscode.house.gov/statviewer.htm?volume=90&page=1990 (providing for the
dissolution of the ICC).
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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.\10\
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\10\See 107 Stat. at 1118, of which the above text and the account
that follows is largely excerpts.
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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.
Congress took subsequent action in 1959 by enacting the
Catawba Tribe of South Carolina Division of Assets Act (the
1959 Act).\11\ 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.
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\11\ Pub. L. No. 86-322, 73 Stat. 592 (1959), https://
uscode.house.gov/statviewer.htm?volume= 73&page=592 (codified at 25
U.S.C. Sec. Sec. 931-38).
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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).
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 1993
Settlement 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, and established a fund
for acquiring more lands for the Tribe. Notably, the 1993
Settlement Act made 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 provides 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
shall 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 published 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.\12\ As part of this agency action, the
Department used newly established guidance\13\ from Department
Solicitor Daniel H. Jorjani to determine whether 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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\12\Land Acquisitions; Catawba Indian Nation, Kings Mountain
Parcel, North Carolina, 85 Fed. Reg. 17,093 (Mar. 12, 2020), https://
www.govinfo.gov/content/pkg/FR-202003-26/pdf/2020-06325.pdf.
\13\Daniel H. Jorjani, Solicitor, U.S. Dep't of the Interior,
Procedure 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 under Category1.pdf. The
Committee notes that this guidance is the subject of ongoing
litigation.
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On March 25, 2021, the U.S. Department of Interior approved
the Tribal-State Compact with the state of North Carolina.\14\
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\14\Indian Gaming; Approval of Tribal-State Class III Gaming
Compact in the State of North Carolina, 86 Fed. Reg. 15,958 (Mar. 25,
2021), https://www.govinfo.gov/content/pkg/FR-2021-03-25/pdf/2021-
06111.pdf.
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OVERVIEW
This legislation, H.R. 1619, amends the Catawba Indian
Tribe of South Carolina Land Claims Settlement Act of 1993 to:
Reaffirm the Catawba Indian Nation's right to own and
operate a gaming facility on lands described in the bill, which
are located in Cleveland County, North Carolina;
Mandate that the facility located on the newly acquired
lands 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;\15\
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\15\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.C. 2719 (1988)).
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Reaffirms the action taken by the Secretary of the Interior
on July 10th, 2020, to take land into trust on behalf of the
Catawba Tribe for the purpose of conducting gaming;
Reserve 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 that the land taken into trust by the Secretary of
Interior on July 10th, 2020 for the benefit of the Catawba
Nation shall:
(1) Be part of the Catawba reservation and
administered in accordance with the laws for an Indian
Tribe; and
(2) Be deemed to have been acquired and taken into
trust as part of the restoration of lands for an Indian
Tribe that is restored to federal recognition pursuant
to Section 20(b)(1)(B)(iii) of the Indian Gaming
Regulatory Act.
The bill also clarifies that nothing in this bill shall
enhance nor diminish the existing rights of the Catawba Nation.
COMMITTEE ACTION
H.R. 1619 was introduced on March 8, 2021, by Majority Whip
Jim Clyburn (D-SC). 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
May 26, 2021, the Natural Resources Committee met to consider
the bill. The Subcommittee was discharged by unanimous consent.
No amendments were offered. The bill was adopted and ordered
favorably reported to the House of Representatives by voice
vote.
HEARINGS
For the purposes of clause 3(c)(6) of House Rule XIII, the
following hearing was used to develop or consider this measure:
full committee markup held on May 26, 2021.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title.
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, which requires
the State of South Carolina to approve Catawba gaming within
the state. Section 2 also clarifies that gaming conducted by
the Catawba tribe outside the State of South Carolina shall be
subject to the Indian Gaming Regulatory Act.
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.
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 22, 2021.
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. 1619, the Catawba
Indian Nation Lands 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]
H.R. 1619 would affirm the status of approximately 17 acres
of land in North Carolina that were taken into trust in 2020 by
the Department of the Interior (DOI) for the benefit of the
Catawba Indian Nation. The bill also would make gaming
activities conducted on that land subject to the Indian Gaming
Regulatory Act. Using information provided by the Bureau of
Indian Affairs, CBO estimates that the administrative costs to
implement H.R. 1619 would not be significant; any spending
would be subject to the availability of appropriated funds.
H.R. 1619 would impose an intergovernmental mandate as
defined by the Unfunded Mandates Reform Act (UMRA) on the
Eastern Band of Cherokee Indians and the Cherokee Nation, by
restricting their existing right of action to pursue a case
against DOI under the Administrative Procedures Act. The
Eastern Band of Cherokee Indians is challenging how the DOI
applied its procedures to transfer land into trust for the
Catawba Indian Tribe. The United States District Court for the
District of Columbia denied the challenge motion, but the case
is currently before the U.S. Circuit Court of Appeals--D.C.
Circuit. There are no costs associated with the mandate because
there is no loss to be made whole by compensatory damages to
the plaintiffs in the court of appeals.
H.R. 1619 does not contain private-sector mandates as
defined in UMRA.
The CBO staff contacts for this estimate are Jon Sperl (for
federal costs) and Lilia Ledezma (for mandates). The estimate
was reviewed by H. Samuel Papenfuss, Deputy Director of 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 are to reaffirm the action taken by the
Secretary of Interior on July 10, 2020, to place approximately
17 acres of land located in Cleveland County, North Carolina,
into trust on behalf of the Catawba Indian Tribe, for the
purpose of conducting Indian gaming subject to the provisions
of the Indian Gaming Regulatory Act of 1988.
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
According to CBO, H.R. 1619 would impose an
intergovernmental mandate as defined by the Unfunded Mandates
Reform Act (UMRA) on the Eastern Band of Cherokee Indians and
the Cherokee Nation, by restricting their existing right of
action to pursue a case against DOI under the Administrative
Procedures Act. CBO's full analysis is reproduced above.
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
If enacted, this bill would make no changes to existing
law.
SUPPLEMENTAL, MINORITY, ADDITIONAL, OR DISSENTING VIEWS
None.
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