39–010 

1Pub. L. 100–497. 

2Pub. L. 103–62. 

Calendar No. 193 

109TH CONGRESS REPORT " ! SENATE 1st Session 109–122 

AMENDING THE INDIAN GAMING REGULATORY ACT TO 

PROVIDE FOR ACCOUNTABILITY AND FUNDING OF THE 

NATIONAL INDIAN GAMING COMMISSION 

AUGUST 31, 2005.—Ordered to be printed 

Filed, under authority of the order of the Senate of July 29, 2005 

Mr. MCCAIN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1295] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 1295) to amend the Indian Gaming Regulatory Act 1 (the 

‘‘IGRA’’) to provide for accountability and funding of the National 

Indian Gaming Commission, having considered the same, reports 

favorably thereon without amendment and recommends that the 

bill do pass. 

PURPOSE

The primary purpose of S. 1295, the National Indian Gaming 

Commission Accountability Act of 2005, is to provide for greater accountability and funding for the National Indian Gaming Commission (the ‘‘NIGC’’). S. 1295 was introduced by Senator McCain on 

June 23, 2005, and amends IGRA through three provisions: 

1. An amendment to § 18(a)(2)(B) changing the equation for fees 

assessed on tribal gaming operations and eliminating the current 

$8 million cap on fee collection; 

2. An addition to § 7 subjecting the NIGC to the Government Performance and Results Act (‘‘GPRA’’) 2 and 

2 

3Pub. L. 103–62, § 4(b). 

4Pub. L. 103–62, § 2. 

3. An addition to § 7 that would require the agency to include, 

as part of its compliance with GPRA, a plan that addresses technical assistance to tribal gaming operations. 

BACKGROUND

When IGRA was enacted in 1988, Congress created the NIGC to 

provide Federal oversight of the regulation of Indian gaming. Originally, the IGRA provided for the NIGC to be funded by a blend of 

Federally appropriated monies and fees assessed on Indian gaming 

operations. The total fees assessed were capped at $2 million. 

In 1997, Congress raised the fee assessment cap to $8 million. 

Since Fiscal Year 1998, no Federal funds have been appropriated 

for the operation of the NIGC. To address the rising budgetary 

needs of the agency tasked with oversight of the fast-growing Indian gaming industry, the 108th Congress, through appropriations 

legislation, authorized an increase in the fee cap to $12 million for 

fiscal 2005 and 2006. These year to year ‘‘stop-gap’’ appropriations 

measures have helped the agency meet its regulatory responsibilities but have impeded long-term budgeting. 

The National Indian Gaming Commission Accountability Act of 

2005 is designed to allow the agency to increase fee collection in 

proportion to the size of the industry it oversees. With fees capped 

at .08 percent of the industry’s gross revenue, the agency’s funding 

would float in proportion to the revenues of the Indian gaming industry, expanding or contracting as the Indian gaming industry 

grew or diminished. For example, had fees been capped at 0.08 percent for calendar year 2004, when reported industry gross revenues 

exceeded $19.4 billion, the agency would have been authorized to 

collect fees of up to $15.5 million. 

S. 1295 does not, of course, compel the NIGC to annually collect 

the full amount allowable. Continuing careful stewardship of tribes’ 

fee payments, such has been exercised recently by the Commission, 

is encouraged. The agency must be free, however, to respond to 

continued growth in Indian gaming with adequate funds to provide 

oversight. 

As the agency’s needs have grown, so has scrutiny of the agency 

by tribes and other interested parties. This legislation therefore increases not only the agency’s funding but also its accountability by 

directing that the NIGC be subject to GPRA. Heretofore the Commission has not been subject to GPRA pursuant to an exemption 

that allows OMB to exempt agencies with outlays under $20 million from GPRA’s requirements.3 Because the NIGC’s budget has 

never been more than $12 million, the NIGC OMB exemption from 

GPRA’s requirements has been applied. S. 1295 requires, however, 

that NIGC be subject to GPRA. 

Congress enacted GPRA in an effort to strengthen public confidence in government and to assist Federal managers in improving 

program efficiency and effectiveness.4 That act requires that Federal agencies submit to Congress strategic five-year plans, annual 

performance plans, and performance reports. It specifically requires 

that, when developing a strategic plan, an agency must not only 

consult with Congress, but also ‘‘solicit and consider the views and 

3 

5 5 U.S.C. 306(d). 

6 5 U.S.C. 306(e). 

suggestions of those entities potentially affected by or interested in 

such a plan.’’ 5 In the case of the Commission, those affected entities include tribes. 

There are some well defined limits as to the degree of solicitation 

required by GPRA itself, including the caveat that the solicitation 

and consideration of views does not mean that the agency’s plan 

must be agreeable to all parties. GPRA provides that ‘‘the function 

and activities of this section shall be considered to be inherently 

governmental functions. The drafting of strategic plans under this 

section shall be performed only by Federal employees.’’ 6 In the case 

of a regulating agency such as NIGC, creation of any given plan 

can be improved by consulting with, but should not be compelled 

by, the regulated entities, notwithstanding a policy of governmentto-government relationship between the Federal and tribal governments. 

Additionally, it is to be noted that the NIGC is an independent 

regulatory agency. This status has ramifications, including, that 

the agency is not governed by Executive Order 13175, which compels agencies other than independent regulatory agencies to consult 

tribal officials in the development of regulatory policies that have 

tribal implications. The Executive Order encourages independent 

agencies to observe its precepts, however, and the Committee notes 

with approval that the Commission, through its current consultation policy, has endeavored to do so. 

In keeping with the long-standing Federal policy of tribal self-determination, and the corollary policy of maintaining government-togovernment relations, the Committee strongly encourages the 

NIGC, consistent with its regulatory responsibilities, to work with 

tribal governments on a government-to-government basis in the development of regulatory policies, standards and definitions, which 

may include, where appropriate, the use of tribal advisory committees and negotiated rulemaking. 

S. 1295 also requires that the agency’s GPRA plans address the 

need for technical assistance to tribal gaming operations. In the 

past, the NIGC has provided training and technical assistance to 

tribes and tribal gaming operations. Such assistance plays a critical role in supporting IGRA’s purposes by strengthening the Indian gaming industry, which in turn will lead to strengthened tribal governments. Including technical assistance in its regulatory 

plans will help both the agency and tribes focus on the importance 

of assistance in effectuating IGRA’s goals. 

SUMMARY OF MAJOR PROVISIONS

The purpose in amending Pub. L. 100–447 through S. 1295 is 

two-fold: one, to hold NIGC accountable for its funding and two, to 

correlate NIGC funding with the size of the industry it regulates. 

The amendment thus requires compliance with the Government 

Performance and Results Act (Pub. L. 103–62; 107 Stat. 286). Compliance with this requirement will result in the agency writing 

strategic and performance plans for its programs. The amendment 

also specifies that performance plans address tribes’ needs for technical assistance in regulating their gaming operations. 

4 

The amendment also deletes IGRA’s current cap on NIGC funding at $8 million. In order to make the budget more responsive to 

the growth of the Indian gaming industry, the amendment replaces 

the cap with a formula whereby the agency may collect fees not to 

exceed .08 percent of the gross gaming revenues of all gaming operations. 

LEGISLATIVE HISTORY

S. 1295 was introduced on June 23, 2005, by Senator McCain 

and was referred to the Committee on Indian Affairs. 

On June 29, 2005, at a business meeting duly noticed, the Committee passed the bill for consideration by the full Senate, with a 

favorable recommendation that the Senate pass the bill. 

SECTION-BY-SECTION ANALYSIS

Sec. 2(a). Powers of the Commission 

Adds the requirement that the Commission shall be subject to 

the Government Performance and Results Act of 1993 and that, in 

addition to compliance with GPRA, the Commission shall submit a 

plan to provide technical assistance to tribes conducting gaming 

under IGRA. 

Sec. 2(b). Commission funding 

Deletes subparagraph imposing cap on NIGC funding and replaces it with provision authorizing funding not to exceed .08 percent of gross gaming revenues of all gaming operations subject to 

IGRA. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On June 29, 2005, the Committee, in an open business session, 

considered S. 1295 and approved the bill, and ordered S. 1295 favorably reported to the full Senate with a recommendation that the 

bill do pass. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate for S. 1295 as calculated by the Congressional 

Budget Office, is set forth below: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, July 19, 2005. 

Hon. JOHN MCCAIN, 

Chairman, Committee on Indian Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: As you requested, the Congressional Budget Office has prepared the enclosed cost estimate for S. 1295, the 

National Indian Gaming Commission Accountability Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Matthew Pickford (for 

5 

federal costs), and Marjorie Miller (for the impact on state, local, 

and tribal governments). 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, Director. 

Enclosure. 

S. 1295—National Indian Gaming Commission Accountability Act 

of 2005 

Summary: S. 1295 would amend the Indian Gaming Regulatory 

Act (IGRA) to increase the fees paid to the National Indian Gaming 

Commission (NIGC) by tribal gaming operators. The legislation 

would also require the NIGC to comply with the requirements of 

the Government Performance and Results Act of 1993. 

CBO estimates that implementing S. 1295 would increase direct 

spending by $7 million in 2006 and about $230 million over the 

2006–2015 period. CBO also estimates that enacting the legislation 

would increase revenues by $7 million in 2006 and about $230 million over the 2006–2015 period. 

S. 1295 contains an intergovernmental mandate as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would increase 

the amount of fees that gaming tribes must pay to the NIGC. CBO 

estimates that the cost of this mandate would be well below the 

threshold established in UMRA ($62 million in 2005, adjusted annually for inflation) for at least the next five years. The bill contains no private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government. The estimated budgetary impact of S. 1295 is shown in the following table. The costs 

of the legislation fall within budget function 800 (general government). 

By fiscal years, in millions of dollars— 

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 

CHANGES IN REVENUES 

NIGC Fees: 

Estimated Revenues ............. 7 14 16 19 22 25 27 30 32 35 

CHANGES IN DIRECT SPENDING 

Spending of NIGC Fees: 

Estimated Budget Authority 7 14 16 19 22 25 27 30 32 35 

Estimated Outlays ................ 7 14 16 19 22 25 27 30 32 35 

Basis of estimate: For this estimate, CBO assumes that the bill 

will be enacted near the end of fiscal year 2005 and that spending 

will follow historical patterns for NIGC and its programs. 

The IGRA established the NIGC to monitor and regulate gaming 

activity on Indian lands. The legislation authorizes the commission 

to collect and expend an annual fixed assessment on tribal gaming 

operators based on tribal gambling revenues. The current limitation is $12 million annually in fiscal years 2005 and 2006, and $8 

million in each subsequent year. The legislation would amend the 

current fixed limitation and allow the NIGC to collect up to 0.080 

percent (80 cents per $1,000) of all gaming revenues subject to 

NIGC regulation. 

CBO expects that fixing the assessment to a percentage of total 

tribal gambling revenues would lead to a significant increase in the 

6 

amount of fees collected. Over the 2000–2004 calendar year period, 

annual tribal gaming revenues increased by an average of 14 percent a year to about $19 billion in fiscal year 2004. If the revenue 

increases continue at the same rate, the amount of fees generated 

annually would increase to almost $20 million in fiscal year 2006 

and to about $62 million in fiscal year 2015. However, CBO expects 

that future growth in Indian gaming revenues will slow relative to 

recent history over the 2006–2015 fiscal year period. We estimate 

that the amount of fees generated in fiscal year 2006 would be almost $20 million and rise to $43 million by fiscal year 2015. 

CBO estimates that NIGC fees and spending would increase by $7 million in 2006. We estimate that fees and spending would continue to grow with gaming revenues and reach an additional $35 

million a year by 2015. 

Intergovernmental and private-sector impact: S. 1295 contains 

an intergovernmental mandate as defined in UMRA because it 

would increase the amount of fees that gaming tribes must pay to 

the NIGC. Under an existing mandate, tribes must pay fees that 

are capped at $12 million in each of fiscal years 2005 and 2006. 

CBO estimates that enacting this bill would increase the cost of 

that mandate by less than $10 million in 2006. Because the bill 

would replace a fixed dollar cap with a cap set as a percent of gaming revenues, these incremental costs would increase as tribal gaming revenues increase, but we expect that they would remain well 

below the threshold established in UMRA ($62 million in 2005, adjusted annually for inflation) for at least the next five years. The 

bill would impose no other costs on state, local, or tribal governments. The bill contains no private-sector mandates as defined in 

UMRA. 

Estimate prepared by: Federal Costs: Matthew Pickford, Federal 

Revenues: Laura Hanlon. Impact on State, Local, and Tribal Governments: Marjorie Miller. Impact on the Private-Sector: Craig 

Cammarata. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. G. Thomas Woodward, Assistant Director for Tax Analysis. 

REGULATORY AND PAPERWORK 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 and paperwork impact that would be incurred in carrying out the bill. The Committee has concluded that S. 1295 will 

have no impact on regulatory or paperwork requirements and impacts. 

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding S. 1295. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

1295, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is 

7 

printed in italic, existing law in which no change is proposed is 

shown in roman): 

PUBLIC LAW 100–447 

* * * * * * * 

SEC. 7. POWERS OF THE COMMISSION. 

* * * * * * * 

(d) APPLICATION OF GOVERNMENT PERFORMANCE AND RESULTS

ACT.— 

(1) IN GENERAL.—In carrying out any action under this Act, 

the Commission shall be subject to the Government Performance and Results Act of 1993 (Public Law 103–62; 107 Stat. 

285). 

(2) PLANS.—In addition to any plan required under the Government Performance and Results Act of 1993 (Public Law 103– 

62; 107 Stat. 285), the Commission shall submit a plan to provide technical assistance to tribal gaming operations in accordance with that Act. 

* * * * * * * 

SEC. 18. SCHEDULE OF FEES IMPOSED. 

(a) * * * 

* * * * * * * 

(2) * * * 

* * * * * * * 

(B) øThe total amount of all fees imposed during any fiscal year under the schedule established under paragraph 

(1) shall not exceed $8,000,000.¿ The total amount of all 

fees imposed during any fiscal year under the schedule established under paragraph (1) shall not exceed 0.080 percent of the gross gaming revenues of all gaming operations 

subject to regulation under this Act. 

Æ