WASHINGTON – The Resources Committee in the House of Representatives has sent a bill that would end reservation shopping to the full House by a vote of 27 in favor and nine opposed.
“Reservation shopping” has come to describe the practice some tribes, or casino developers acting for tribes, have engaged in of casting around for more lucrative casino sites than may exist on a reservation. Many local communities have been distressed by tribal plans to plant an off-reservation casino on their doorstep, and these communities have broadcast their distress. The fact that few of the off-reservation ventures have resulted in casinos has in no way blunted the ability of opponents to argue a “no community is safe” scenario.
Resources Committee Chair-man Rep. Richard Pombo, R-Calif., contends that 38 tribal casinos, almost 10 percent of them all, are located on tribal trust land – that was not tribal trust land at the passage of the Indian Gaming Regulatory Act in 1988. More than 40 additional off-reservation casino proposals are pending, he said. In his view, that alone illustrates the abuse of exceptions to IGRA’s intent that gaming should be limited to tribal lands that were in trust at the time of the law’s passage. His campaign against reservation shopping, enshrined in the bill sent in the House on July 26, seeks to close off most of those exceptions.
Pombo continued his regular diatribe against reservation shopping in remarks to open the July 26 “markup” hearing. (A markup hearing, in Capitol Hill jargon, is a committee meeting to amend a bill or bills, usually just before voting them out of committee.)
Under the Indian Gaming Regulatory Act, Pombo stated, “Indian gaming was not just another type of business, but rather a sovereign function of the tribal government – conducted only on tribal reservation land as a means to spur economic development on Indian reservations.”
But as the Indian gaming industry has grown, Pombo related, tribes have increasingly tried to locate casinos at lucrative off-reservation sites.
“Those who have pursued this course have turned the spirit of IGRA on its head,” Pombo declared. “Instead of seeking to bring economic development to Indian reservations, they have instead sought to bring Indian reservations to wherever there is economic development. And this is wrong. It threatens both the future of Native American economic development and the integrity of Indian tribal sovereignty itself.”
Pombo did not stop at accusing some unnamed tribes of “selling out” their sovereignty for the prospect of casino profits – to the offense of other tribes that have fought to maintain their sovereignty, he added.
In getting to a final committee vote, the July 26 hearing dealt with nine amendments. The bill itself, House Bill 4893 in the House, was offered as an “amendment in the nature of a substitute” for the original bill. Pombo and Rep. Nick Rahall, D-W.Va., the committee’s ranking Democrat, crafted the amended version of the bill to overcome three problems identified by committee members.
The first problem was a clause requiring the consent of state legislatures to any casino. But IGRA vests state governors with a primary right of concurrence, though in some states the legislature does have a role. The compromise in the late amendment requires the governor’s approval of a casino in keeping with the laws of the state.
The second problem with the original bill was a provision giving veto power over a casino project to tribes within 75 miles of the site. The late amendment eliminated that provision.
The third problem Pombo acknowledged with the original bill was a requirement that tribes finance local referendums on casino projects. The late amendment struck that, too.
Pombo acknowledged a fourth problem before the committee, but declined to change it – the bill’s demand that tribes enter a Memorandum of Understanding with counties to mitigate casino impact on roads, parking and other key infrastructure, as well as the environment and social welfare. In most cases, tribes anticipate that the agreements will call for payments from prospective casino tribes to county agencies.
This memo of understanding served as occasion for the morning’s only fireworks, an exchange between Pombo and Rep. Dale Kildee, D-Mich., over the latter’s attempt to amend the mandated MOU out of the bill.
Kildee made a strong case for his Amendment 19 as numbered by the committee. “The strongest opposition to this bill is based on a drastic change in policy – forcing sovereign tribal governments to make so-called mitigation payments to county governments,” Kildee said. “County and local governments are creatures of the state. The U.S. Congress should not disrespect our relationship with Indian tribes by forcing them to submit to county government. Not only are these provisions a complete abrogation of tribal sovereignty, they are completely unnecessary. Under IGRA, Indian tribes must negotiate compacts with state governments. As creatures of the states, counties are protected by their state.”
Kildee added that tribe-county MOUs would make tribes “second-class sovereigns, with less control over their lands than other governments.”
Rep. Don Young, R-Alaska, took up Kildee’s argument, noting that sovereigns should negotiate with sovereigns – tribal governments with state governments.
Pombo wouldn’t budge. “In fact it happens almost all the time, and very rarely it has not happened, that that is a major concern the counties and local communities have had, is that the impact of the major development going into a small community will not be mitigated.”
Kildee then turned to an amendment of the bill’s Class II gaming provisions, which would require state approval “for the first time.”
Shortly thereafter Pombo lost patience, reciting the committee’s several attempts to address Kildee’s objections over several months. “At this point, it appears you are looking for a reason to be opposed to the bill.” Kildee began to deny it, leading Pombo to snap “This is my time,” a reference to parliamentary rules of debate.
Kildee apologized for speaking out of order. When Pombo had finished and recognized Kildee for a response, Kildee restored the collegiality by insisting that he wasn’t questioning Pombo’s fairness. “Never at any time have you been unfair.”
Eventually they got to a voice vote, which Pombo heard to be against the Kildee amendment. Kildee asked for a roll call vote, which went against Kildee’s amendment 19.
Finally at the end of the Pombo-Rahall “amendment in the nature of a substitute,” another much-debated measure came in for change: tribes that have filed trust land applications prior to March 7 (the date of introduction for the original version of H.R. 4893) will be able to proceed under the bill as amended, but only if they meet three conditions. The applications cannot be letters of intent but must be fee-to-trust petitions or applications for gaming eligibility on existing trust lands. They cannot involve a land claim. And they must be within the tribe’s state of residence and meet criteria for ties of geography, history and continuity.
Under the amended bill, tribes would still be able to host out-of-state tribes for gaming purposes on already established trust land.