S. 1870 Indian Gaming Regulatory Improvement Act of 1998

Mr. CAMPBELL. Mr. President, today I am pleased to introduce the Indian Gaming Regulatory Act Amendments of 1998 to reform the federal components of Indian gaming regulation.

I wish to begin by acknowledging the work in this area by the two distinguished individuals who preceded me as the chairman of the Senate Indian Affairs Committee, Senators MCCAIN and INOUYE. This legislation builds upon their extraordinary efforts to listen to all sides of this debate and broker a fair and equitable compromise. I seek to continue this tradition by providing a starting point for negotiations among all of those with an interest in Indian gaming, and by addressing those areas that are most in need of immediate reform.

This bill will revitalize the National Indian Gaming Commission, by ensuring that it has the authority to develop and impose a series of minimum federal standards on all Indian gaming operations. It will reform and restore the compact negotiation process by providing an alternative compact negotiation process in those instances where a state wishes to exercise its 11th Amendment immunity from lawsuits and its 10th Amendment right to decide for itself whether it wishes to regulate on-reservation gaming. Finally, this bill addresses the two issues that in my opinion are most in need of immediate reform. First, the bill applies the standard post-employment restrictions for former federal officials who are employed by any tribe that stood to benefit from any gaming-related decisions the officials made while they were federal employees. Second, the bill will prohibit the acquisition of off-reservation lands for gaming activities unless the tribe and the state agree to do so.

Ten years ago the Congress enacted the Indian gaming legislation that many will agree needs to be updated. In 1988 most Indian gaming consisted of high stakes bingo and similar types of games. Since then, it has grown to become a billion dollar activity and has provided many tribes and surrounding communities with much-needed capital and employment opportunities.

For those tribes lucky enough to be well situated geographically, gaming has proven successful. Where welfare rolls once bulged, tribes are employing thousands of people-both Indian as well as non-Indian. Once entirely reliant on federal transfer payments, many tribes are beginning to diversify their economies and provide jobs and hope to their members.

For most tribes, however, gaming is not a viable development alternative. Indeed, only one-third of all federally-recognized tribes have any form of gaming and most of that is more like charitable bingo than Las Vegas or Atlantic City. On-line gaming, as well as competition from local and international operations, has created a very tight market. In Washington State, for example, as well as in other parts of the country, market saturation is leading some tribes to close their operations for good.

Over the past ten years, the statute has only been significantly amended one time-in 1997 I introduced a measure to provide the federal National Indian Gaming Commission with the resources it needs to monitor and regulate certain Indian gaming operations. Today, a strengthened commission is beginning to fulfill its obligations under the statute and help maintain the integrity of Indian gaming nationwide.

The lack of uniform standard operating procedures for Indian gaming continues to cause anxiety for many of those inside and outside of Indian country. Many Indian tribes, in cooperation with the states where gaming is located, have developed sophisticated gaming regulatory procedures and standards. Many tribes have put in place standards regarding the rules of play for their games, as well as financial and accounting standards governing those games. Not all tribal-state gaming compacts mandate such sophisticated regulatory frameworks.

By setting threshold standards at the federal level, this bill will mean that Indian gaming customers throughout the nation can be assured that every Indian gaming establishment must comply with a federally established level of regulation, operation, and management, just as they are already assured that gaming proceeds may only be spent for certain purposes set out in the Act.

When the Congress enacted the IGRA in 1988, states were invited, for the first time ever, to play a significant role in the regulation of activities that take place on Indian lands. The statute required tribes to seek to negotiate a gaming compact with a state before commencing any casino-style gaming. Though there were bumps along the way, this was a major concession by Indian tribes and one that worked reasonably well for 8 years, and which will continue to be available if it is chosen by both a state and a tribe.

Under IGRA, before a tribe may commence casino-style gaming, it must seek to negotiate a gaming compact with the state where the gaming will occur. Up until 1996, if a federal court determined that the state was negotiating in bad faith or if the state decided simply not to negotiate, the tribe had the option of filing a lawsuit to bring about good faith negotiations.

In 1996, the Supreme Court turned this process upside down when it handed down its decision in Seminole Tribe of Indians v. State of Florida. This decision said that a state may assert its Eleventh Amendment immunity from lawsuits to preclude tribes from suing it in order to conclude a gaming agreement. Also, some states have asserted that the IGRA may force them to regulate reservation-based gaming in violation of their 10th Amendment rights. My bill will allow tribes and states to continue to use the existing process to negotiate compacts if that is their desire.

As I believe the Act should respect each state's sovereign right to absent itself from this process if it chooses to, we must also respect the Supreme Court's decision that Indian tribes have the sovereign right to offer gaming activities that do not violate the public policy of the state where those activities are offered. This approach is consistent with what the Congress intended in 1988.

Finally, there are ongoing Congressional investigations of the so-called "Hudson Dog Track" matter involving whether the Interior Department denied an application by certain Indian tribes to acquire off-reservation lands for gaming purposes because of campaign contributions by a rival group of tribes. Even before these allegations surfaced, I expressed strong concerns about the acquisition of off-reservation lands for gaming purposes.

The IGRA requires the Interior Secretary to consult with local officials, local communities, and nearby tribes in evaluating the tribe's application to take lands into trust. The Act also provides State governors with an absolute veto over such applications. In my opinion, federal laws and regulations already make it very difficult for the Secretary to take land into trust for a tribe if it is located away from a tribe's reservation or previous homeland. As a result, few tribes apply to have off-reservation lands taken into trust, and even fewer are successful.

The IGRA imposes additional requirements on such acquisitions if there is any possibility that the lands will be used for gaming purposes. As a result of these requirements, I am aware of only two or three such acquisitions. Yet the opposition to Indian gaming that results from the mere possibility of such acquisitions is significant. This opposition far exceeds that speculative possibility that the Secretary, a local community, and a state's governor will all concur with such an acquisition. Thus, my bill will preclude off-reservation acquisitions unless the tribe and the state reach agreement to allow those lands to be used for gaming purposes. This provision will therefore encourage tribal-state cooperation rather than tribal-state conflict when it comes to gaming matters.

My bill will also remove the argument that those Indian groups that are laboring to achieve federal recognition as tribes are doing so only to develop gaming. Achieving federal recognition is difficult enough, I do not believe it should be further complicated by squabbles over gaming.

My bill will eliminate any appearance that federal officials and employees who are responsible for making decisions about Indian gaming are "cashing in" on their activities when they leave government service. By closing an existing loophole, my bill will establish that those federal employees who have made decisions concerning a tribe's gaming activities are bound by the same policies, procedures, and criminal laws that prevent other federal employees from profiting from decisions they made when working for the government. But it also preserves those provisions in the Indian Self-Determination and Education Assistance Act, which have dramatically reduced the number of federal employees by encouraging their employment by the tribes that contract to provide federal services under self-governance compacts and self-determination act contracts.

I believe this bill addresses the most pressing concerns raised by states, local governments, and Indian tribes. Like all attempts at compromise, few parties will be completely satisfied. The legislation I am introducing will both please and disappoint the states as well as the tribes. Nonetheless, as Chairman of the Committee on Indian Affairs, demonstrating a willingness to serve as an honest broker will, in my opinion, do more to foster genuine and lasting reform than simply becoming an advocate for one side or one point of view. Let there be no question of my commitment to ensure that Indian gaming be operated fairly and consistently with all relevant laws, and that the goals and objectives of the IGRA are fully achieved.

As I have indicated, the Committee will address these and related issues in the coming weeks. By introducing this legislation, it is my hope that those with concerns with the regulation of Indian gaming work with me in the Committee to fully and fairly debate the issues before any actions are taken to amend the Act.