IMPLEMENTATION OF INDIAN GAMING REGULATORY ACT OVERSIGHT HEARING BEFORE THE SUBCOl\L\HTTEE OX NATIVE AMERICAN AFFAIRS OF THE CO 1\11\fITTEE ON NATURAL RESOURCES HOUSE OF REPRESgNTATIVES ONE HUNDRED THIRD CONGRESS FIRST SESSION ON IMPLEMENTATION OF PUBLIC LAW 100-497, THE INDIAN GAMING REGULATORY ACT OF 1988 HEARING HELD IN WASHINGTON, DC JUNE 7, 1993 Serial No. 103-17, Part II Printed for the use of the Committee on Natural Resources U.S. GOVERNMENT PRINTING OFFICE 76-257 WASHINGTON : 1994 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington. DC 20402 ISBN 0-16-043651-6 COMMI'ITEE ON NATURAL RESOURCES GEORGE MILLER, California, Chairman PHILIP R. SHARP, Indiana DON YOUNG, Alaska, Ranking Republican EDWARD J. MARKEY, Massachusetts Member AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming SAM GEJDENSON, Connecticut JOHN J. DUNCAN, JR., Tennessee RICHARD H. LEHMAN, California JOEL HEFLEY, Colorado BILL RICHARDSON, New Mexico JOHN T. DOOLI'ITLE, California PETER A. DEFAZIO, Oregon WAYNE ALLARD, Colorado ENI F.H. FALEOMAVAEGA, American RICHARD H. BAKER, Louisiana Samoa KEN CALVERT, California TIM JOHNSON, South Dakota SCO'IT McINNIS, Colorado LARRY LAROCCO, Idaho RICHARD W. POMBO, California NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas CALVIN M. DOOLEY, Califor;nia CARLOS ROMERO-BARCELO, Puerto Rico KARAN ENGLISH, Arizona KAREN SHEPHERD, Utah NATHAN DEAL, Georgia MAURICE D. HINCHEY, New York ROBERT A. UNDERWOOD, Guam HOWARD L. BERMAN, California LANE EVANS, Illinois PATSY T. MINK, Hawaii THOMAS J. BARLOW III, Kentucky THOMAS M. BARRE'IT, Wisconsin JOHN LAWRENCE, Staff Director RICHARD MELTZER, General Counsel DANIEL VAL KISH, Republican Staff Director SUBCOMMITIEE ON NATIVE AMERICAN AFFAIRS BILL RICHARDSON, New Mexico, Chairman PAT WILLIAMS, Moutana CRAIG THOMAS, Wyoming, Ranking SAM GEJDENSON, Connecticut Republican Member ENI F.H. FALEOMAVAEGA, American DON YOUNG, Alaska Samoa RICHARD H. BAKER, Louisiana TIM JOHNSON, South Dakota KEN CALVERT, California NEIL ABERCROMBIE, Hawaii KARAN ENGLISH, Arizona TADD JOHNSON, Staff Director MARIE HOWARD, Professional Staff Member STEVEN J.W. HEELEY, Counsel JUNE LoRENZO, Professional Staff Member BARBARA ROBLES, Clerk RICHARD HOUGHTON, Republican Counsel on Native American Affairs (II) CONTENTS Page Hearing held: June 7, 1993 ..................................................................................... 1 Summary of the Indian Gaming Regulatory Act, P.L. 100-497 .......................... 3 Member statements: Hon. Bill Richardson . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 1 Hon. Craig Thomas . ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. 7 Hon. Tim Johnson ............................................................................................ 7 Hon. George Miller .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 8 Witness statements: Panel consisting of: Franklin Ducheneaux, Ducheneaux, Taylor & Associates, on behalf of the Minnesota Indian Gaming Association ..................................... 9 Paul Alexander, Alexander & Karshmer, on behalf of the Sycuan Band of Mission Indians, Morongo Band of Mission Indians, and Lummi Tribe ................ .......................................................................... 16 Panel consisting of: Susan M. Williams, Gover, Stetson & Williams, on behalf of Sho- shone Tribe, Yavapai-Apache Tribe, and Pueblo ofTesuque ............. 40 Jerry C. Straus, Hobbs, Straus, Dean & Wilder, on behalf of the National Congress of American Indians, Menominee Tribe of Wis- consin, and Seminole Tribe of Florida . .. .. .. .. .. .. .. .. .. .. .. .. .. .. 49 Glenn M. Feldman, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, on behalf of Cabazon Band of Mission Indians of California, Santa Ynez Band of Mission Indians of Cali­ fornia, Cocopah Tribe of Arizona, Kickapoo Nation of Kansas, Comance Tribe of Oklahoma, and Absentee Shawnee Tribe of Okla- homa ....................................................................................................... 69 APPENDIX JUNE 7, 1993 Additional material submitted for the hearing record from: National Indian Policy Center: Document entitled "Reservation-Based Gaming'' ......................................................................................................... 91 (III) IMPLEMENTATION OF P.L. 100-497, THE INDIAN GAMING REGULATORY ACT OF 1988 MONDAY, JUNE 7, 1993 HOUSE OF REPRESENTATIVES, COMMITTEE ON NATURAL RESOURCES, SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, Washington, DC. The subcommittee met, pursuant to call, at 9:30 a.m. in Room 1324, Longworth House Office Building, Hon. Bill Richardson (chairman of the subcommittee) presiding. STATEMENT OF HON. BILL RICHARDSON Mr. RICHARDSON. The committee will come to order. Today, we are holding the second in a series of hearings on the implementation of the Indian Gaming Regulatory Act. Today, we will discuss legal issues from the tribal perspective. We have five attorneys to discuss the primary legal issues as viewed by the Indian tribes who are engaged in Indian gaming. Rest assured that this committee intends to hear all points of view on these issues and in future hearings, we will take testimony from persons expressing views contrary to the tribal perspective. It should be noted that since our last hearing, Indian gaming has garnered a great deal of attention in the media both from lawsuits that have been filed and legislation that has been introduced. These events do not sway this committee from its commitment to conduct thorough oversight on Indian gaming. We will not be dis­ cussing any legislative proposals until this oversight function is completed and we have gathered sufficient information. At the last hearing on April 2, we took testimony from Indian tribes, the Interior Department, the National Indian Gaming Com­ mission, Members of Congress and Governors of States, and we laid the foundation for what we would be exploring in the next sev­ eral hearings. Several legal issues surfaced at the first hearing which we felt it was necessary to explore in greater detail. Today we will look at why the Act was written as it was with regard to the Cabazon deci­ sion; how the tribes perceive the regulatory scheme they are cur­ rently under; what taxes apply to tribal gaming operations; how tribes are responding to the 10th and 11th Amendment defenses some States are using to preclude compact negotiations; what re­ strictions apply to tribes seeking to acquire land for gaming; and whether the fact that States allow "any" gaming means that tribes can bring "all" games to the compact negotiating table. (1) 2 There are some fundamental points about Indian affairs that I must make at the outset. Ninety-three thousand Indian people are homeless or living in substandard housing. Indian adolescents have a suicide attempt rate four times higher than other ethnic groups. Tuberculosis, diabetes, and fetal alcohol syndrome are of near epi­ demic proportions in Indian country. Unemployment rates continue to exceed 50 percent on reservations nationwide. These are perva­ sive problems which, in the age of deficit reduction, will probably never have sufficient Federal resources. Tribes nationwide are in desperate need of economic development. The second point I want to make is with regard to Indian law. There are three fundamental pillars of this body of American law. First, Indian affairs is strictly a Federal function. The Congress has plenary power over Indian policy as it has since the days of treaties. Second, the States have always been excluded from the Federal­ tribal relationship by design. From the early history of the country it was clear that tribes and States were going to perpetually be in conflict. Finally, tribes retain all sovereignty not expressly taken away by Congress. This was basically a real estate deal. The United States got the best piece of real property in the world and the tribes kept the right to totally control the small parcels they retained. In 1988, the Congress altered these pillars a bit by passing the Indian Gaming Regulatory Act. The Act was based on the prin­ ciples derived from the Supreme Court's ruling in the Cabazon case. I will summarize the complex Act by saying that the Congress divided Indian gaming in three different classes. Class I are tradi­ tional games regulated by tribes. Class II is bingo, pull-tabs and other games regulated by tribes and the National Indian Gaming Commission. Class III games are regulated pursuant to the terms of a compact between tribes and States. The details of these class III compact negotiations and the legal battles encountered therein are the primary focus of this hearing. Although the States expressed their views in the last hearing, we did seek to have State Attorneys General at this hearing but sched­ uling difficulties precluded several from attending and so we have decided to hear from State A.G.s at a future date. Donald Trump also declined our invitation before the committee. I welcome the witnesses we have before us today who will pro­ vide the committee with a legal analysis of many complex issues from the tribal perspective. I ask that the witnesses summarize their statements in five minutes. Your full written statement will be made part of the record. The record will