```

[Senate Report 114-199]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 342
114th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {     114-199

======================================================================

 
 TO PROHIBIT GAMING ACTIVITIES ON CERTAIN INDIAN LAND IN ARIZONA UNTIL 
               THE EXPIRATION OF CERTAIN GAMING COMPACTS

                                _______
                                

               December 18, 2015.--Ordered to be printed

                                _______
                                

          Mr. Barrasso, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 152]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 152) to prohibit gaming activities on certain Indian 
land in Arizona until the expiration of certain gaming 
compacts, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of the bill is to prohibit Class II and Class 
III gaming activities, as defined by the Indian Gaming 
Regulatory Act, from being conducted on lands within the 
Phoenix metropolitan area acquired by the Secretary of the 
Interior in trust for the benefit of an Indian tribe after 
April 9, 2013. This prohibition would expire on January 1, 
2027.

                                OVERVIEW

    The bill involves the interplay of two Federal statutes 
governing the use of certain lands by the Tohono O'odham Nation 
in Arizona: the Gila Bend Indian Reservation Lands Replacement 
Act\1\ (Gila Bend Act) and the Indian Gaming Regulatory Act\2\ 
(IGRA). Enacted in 1986, the Gila Bend Act, among other things, 
authorized the purchase of certain lands for the use of the 
Tohono O'odham Nation for economic purposes.
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    \1\Gila Bend Indian Reservation Lands Replacement Act, Public Law 
99-503, 100 Stat. 1798.
    \2\Indian Gaming Regulatory Act, 25 U.S.C. Sec. Sec. 2701, et al. 
(1988).
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    Two years later, the IGRA was enacted and established a 
regulatory framework for gaming activities on Indian lands. How 
this framework affects the economic uses under the Gila Bend 
Act has been the source of considerable controversy in the 
State of Arizona and underlies the purpose of this legislation.

         THE GILA BEND INDIAN RESERVATION LANDS REPLACEMENT ACT

    Background. The Gila Bend Act was a legislative settlement 
to replace the Tohono O'odham Nation's Gila Bend reservation 
land flooded by the Painted Rock Dam which had been constructed 
by the U.S. Army Corps of Engineers on the Gila River, 
approximately ten miles downstream from the tribe's Gila Bend 
reservation.\3\ At the time of the Dam's completion in 1960, 
the potential flooding of reservation lands from the Dam was 
estimated to be infrequent and would not impair the tribe's use 
of the land.\4\
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    \3\An extensive history is also discussed in the Committee Report 
for the Gila Bend Indian Reservation Lands Replacement Clarification 
Act, H.R. 2938. H.R. Rep. No. 112-440 (2012). See also 132 Cong. Rec. 
S14457-01 (1986) and 132 Cong. Rec. H8106-02 (1986). This reservation 
is one of three established for the O'odham people. H.R. Rep. No. 99-
851, at 4.
    \4\Id., at 5.
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    However, a later study by the U.S. Geological Survey in 
1963 found that the entire reservation would be inundated 
``when the reservoir behind the Dam fills to the level of the 
spillway.''\5\ Likewise, subsequent flooding in 1978-79, and 
1981 proved to be much more damaging than previously 
estimated.\6\
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    \5\Id., at 5 citing the 1963 U.S. Geological Survey (Water-supply 
paper 1647-A).
    \6\Subsequent to the passage of the Southern Arizona Water Rights 
Settlement Act of 1982, the reservation experienced two more major 
flooding incidents in 1983 and 1984.
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    Facing the loss of its arable lands on the reservation and 
a Bureau of Indian Affairs unwilling to assist in restoring the 
land to its prior usefulness, the tribe ``petitioned Congress 
for a new reservation on lands in the public domain which would 
be suitable for agriculture.''\7\ Congress passed the Southern 
Arizona Water Rights Settlement Act of 1982 to authorize the 
Secretary of the Interior to conduct a study and find suitable 
replacement lands for the tribe. The study essentially 
confirmed that the flooding rendered the reservation unusable 
and unproductive.\8\ However, suitable Federal replacement 
lands within a 100-mile radius could not be found. The ensuing 
attempts by the tribe and the Department of the Interior to 
resolve the matter eventually led to the Gila Bend Act.
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    \7\H.R. Rep. No. 99-851, at 6.
    \8\Id.
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    Purpose. The Gila Bend Act was intended to ``facilitate 
replacement of reservation lands with lands suitable for 
sustained economic use which is not principally farming and . . 
. promote the economic self-sufficiency of the O'odham Indian 
people.''\9\ It authorized the Tohono O'odham Nation to 
purchase up to 9,880 acres of lands within Pima, Pinal, and 
Maricopa counties in Arizona. These replacement lands had to be 
outside the corporate limits of any city or town.
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    \9\Pub. L. No. 99-503, 100 Stat. 1798.
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    On the Tohono O'odham Nation's request, this Act also 
required the Secretary of the Interior to place those lands 
purchased into trust for the tribe. The Federal Government 
would provide $10 million per year over a three-year period for 
a total of $30 million, plus interest, to purchase those lands. 
The tribe would then waive all claims against the United States 
for the past damages to the tribe's land and water rights.
    In 2003, the tribe acquired unincorporated land within 
Maricopa County, just west of the City of Phoenix. This land is 
located approximately 49 miles from the Gila Bend Reservation 
and more than 100 miles from the tribal headquarters.
    The tribe sought to have this land taken into trust 
pursuant to the Gila Bend Act with the goal of establishing, 
pursuant to the IGRA, a gaming facility which would host other 
related businesses such as an event center, restaurants, and 
retail and meeting spaces. After legal challenges involving 
this then-pending trust land acquisition were addressed by the 
courts, the Assistant Secretary for Indian Affairs for the 
Department of the Interior issued a final decision to take the 
land into trust on July 3, 2014.

                    THE INDIAN GAMING REGULATORY ACT

    Purpose. Prior to the enactment of the IGRA, the regulation 
of gaming on Indian lands was left largely to Indian tribes, 
without Federal oversight or state involvement.\10\ At the 
time, tribal gaming operations offered primarily bingo and card 
games.\11\ According to testimony before the Committee by the 
Department of the Interior, ``[r]eceipts of some tribes exceed 
$1 million annually, and the Department estimates that the 
combined receipts exceed $100 million annually.''\12\
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    \10\See California v. Cabazon, 480 U.S. 202 (1987) and S. Rep. No. 
99-493, at 2 (1986). Early iterations of bills regulating gaming on 
Indian lands were pending before the Committee. See e.g., H.R. 1920, 
99th Cong. (1985); S. 902, 99th Cong. (1985); and S. 2557, 99th Cong. 
(1986). Several consistent themes were in these bills, most notably the 
balance of interests of tribal, Federal, and state governments.
    \11\S. Rep. No. 99-493, at 2 (1986).
    \12\Id. at 3 and see S. Rep. No. 100-446, at 2 (1988).
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    The IGRA was enacted to establish a regulatory framework 
governing gaming on Indian lands. It provides ``a statutory 
basis for the operation of gaming by Indian tribes as a means 
of promoting tribal economic development, self-sufficiency, and 
strong tribal governments.''\13\ This Act also represents a 
delicate balance of many interests in the conduct of gaming 
``as a means of generating needed tribal revenues and 
employment'' and the protection against ``the intrusion of 
crime into tribal gaming operations in Indian country.''\14\
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    \13\25 U.S.C. Sec. 2702 (1988).
    \14\S. Rep. No. 99-493 (1986). Both the House Interior and Insular 
Affairs Committee and the then-Senate Select Committee on Indian 
Affairs held numerous hearings on the various gaming bills and received 
testimony from Federal agencies, Indian and non-Indian witnesses as 
well as numerous statements relating to the subject of the legislation. 
Id. at 7-8.
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    Classes of Games. The IGRA established three classes of 
gaming. Class I gaming, within exclusive tribal jurisdiction, 
consists of social games played solely for prizes of minimal 
value or traditional gaming played in connection with tribal 
ceremonies or celebrations.\15\ Class II gaming includes bingo, 
games similar to bingo, and certain card games.\16\ Class III 
gaming includes all other types of games, including slot 
machines, craps, and roulette.\17\
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    \15\25 U.S.C. Sec. 2703(6) (1988).
    \16\25 U.S.C. Sec. 2703(7) (1988).
    \17\25 U.S.C. Sec. 2708 (1988).
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    Federal Role. The IGRA also set forth the responsibilities 
for the Federal government. Class II and Class III gaming 
activities are subject to Federal regulation or oversight.
    The IGRA established the National Indian Gaming Commission 
(NIGC) to regulate and oversee different aspects of Class II 
and III gaming, such as reviewing and approving (or 
disapproving) tribal gaming ordinances and management 
contracts.\18\
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    \18\25 U.S.C. Sec. Sec. 2704, 2706, 2710, 2711, 2712 (1988).
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    Under the statute, the Secretary of the Interior is 
responsible for reviewing and approving (or disapproving) 
compacts between the tribe and state.\19\ Under the IGRA, 
tribal-state compacts establish the terms governing the 
regulation of the Class III gaming activities.
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    \19\Pursuant to other Federal laws, the Secretary is responsible 
for processing the trust land acquisitions for gaming purposes. While 
these processes are separate and distinct, the Secretary may need to 
determine whether an exception to the prohibition on gaming on that 
trust land applies in the course of evaluating the trust land 
application.
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    The Secretary also conducts the ``two-part 
determination,''\20\ and reviews and approves (or disapproves) 
tribal revenue allocation plans.\21\ The Secretary is 
responsible for evaluating whether trust land to be acquired is 
eligible for gaming. While the trust land acquisition process 
is an independent process, governed by other separate and 
distinct Federal laws,\22\ the Secretary may need to determine 
whether an exception to the prohibition on gaming on that trust 
land applies in the course of evaluating the trust land 
application.
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    \20\See infra note 30 and text accompanying.
    \21\25 U.S.C. Sec. 2710(3) (1988).
    \22\See the Indian Reorganization Act of June 18, 1934, 25 U.S.C. 
Sec. 461 (1934). This process, however, provides the public, state and 
local governments, and other tribal governments with ``many 
opportunities to participate throughout the trust acquisition 
process.'' Indian Gaming: The Next 25 Years: Hearing Before the S. 
Comm. on Indian Affairs, 113th Cong. 2 (2014) (statement of Kevin K. 
Washburn, Assistant Secretary for Indian Affairs, Department of the 
Interior) at 17.
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    The IGRA governs gaming activities occurring on Indian 
lands. In the course of fulfilling their responsibilities under 
the statute, both the Secretary and the NIGC may make a 
determination of whether the lands at issue qualify as Indian 
lands for IGRA purposes.
    State Role--Compacts. The IGRA provided a role for states 
in gaming on Indian lands. The primary involvement is through a 
tribal-state compact which the IGRA requires to be in place 
before Class III gaming activities may occur.\23\ The compact 
was intended to reflect the balance of state public safety and 
law enforcement concerns with tribal concerns regarding the 
imposition of state jurisdiction in tribal lands. This 
mechanism appears to be efficacious as there are numerous 
tribal-state compacts in operation since the enactment of the 
IGRA. According to the 2015 Government Accountability Office 
study on Indian gaming,
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    \23\``After lengthy hearings, negotiations, and discussions, the 
Committee concluded that the use of compacts between tribes and states 
is the best mechanism to assure that the interests of both sovereign 
entities are met with respect to the regulation of complex gaming 
enterprises such as . . . casino gaming * * * * The Committee concluded 
that the compact process is a viable mechanism for setting various 
matters between two equal sovereigns.'' S. Rep. No. 100-446, at 13 
(1988).

          ``[f]rom 1998 through fiscal year 2014, Interior 
        reviewed and approved most of the 516 compacts and 
        compact amendments that were submitted * * * 78 percent 
        (405) were approved; 12 percent (60) were deemed 
        approved; 6 percent (32) were withdrawn or returned; 
        and about 4 percent (19) were disapproved. As of 
        October, 2014, a total of 276 compacts, not including 
        amendments, were in effect.''\24\
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    \24\U.S. Gov't Accountability Office, GAO-15-143T, Indian Gaming: 
Regulation and Oversight by the Federal Government, States, and Tribes 
18 (2015).

    The IGRA sets forth a process governing mediation when 
compact negotiations between the state and tribe fail. In the 
event the tribe and state cannot reach an agreement, then the 
Secretary may issue procedures for the tribe to govern the 
operation of Class III gaming.\25\ ``According to [the 
Department of the] Interior, three tribes conduct [C]lass III 
gaming under Secretarial procedures (Arapaho Tribe of the Wind 
River Reservation, Mashantucket Pequot Indian Tribe, and the 
Rincon Band of Luiseno Mission Indians of the Rincon 
Reservation).''\26\
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    \25\U.S.C. Sec. 2710 (1988).
    \26\U.S. Gov't Accountability Office, GAO-15-143T (2015).
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    These Class III gaming activities may also be subject to 
state regulation to the extent specified in the tribal-state 
compacts. The Government Accountability Office, in its 2015 
study on Indian gaming, ``categorized 7 states as having an 
active regulatory role, 11 states with a moderate role, and 6 
states with a limited role.''\27\ The monitoring activities of 
states ``ranged from basic informal observation of gaming 
operations to testing of gaming machine computer functions and 
reviews of surveillance systems and financial records.''\28\
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    \27\Id.
    \28\Id., at 23. The range indicates the types of specific state 
involvement in day-to-day regulatory activities. Neither the Committee 
nor the GAO imply nor conclude that the limited role of states 
indicates a lack of regulation of Indian gaming. To the contrary, the 
Indian gaming industry is highly regulated.
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    State Role--Two-Part Determination. In addition, the IGRA 
prohibits gaming on trust land acquired after October 17, 1988, 
unless certain exceptions exist.\29\ ``These limited and narrow 
exceptions operate to provide equal footing for certain tribes 
that were disadvantaged in relation to land.''\30\
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    \29\The other exceptions include lands taken into trust as part of 
a land claim settlement, lands restored as part of the restoration of 
the tribe and an initial reservation for the tribe acknowledge under 
the Federal acknowledgement process found at 25 C.F.R. pt. 83.
    \30\Indian Gaming: The Next 25 Years: Hearing Before the S. Comm. 
on Indian Affairs, 113th Cong. 2 (2014) (Statement of Kevin K. 
Washburn, Assistant Secretary for Indian Affairs, Department of the 
Interior) at 17.
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    One particular exception requires the governor of the state 
to concur in a Secretarial action commonly referred to as the 
``two-part determination'' before gaming may take place on the 
particular parcel at issue. The ``two-part determination'' may 
be requested by a tribe when the other exceptions to the 
prohibition against gaming on after-acquired land do not apply.
    This process authorizes the Secretary of the Interior to 
make a determination, after consultation with the Indian tribe 
seeking the determination, appropriate state and local 
officials and officials of nearby Indian tribes, that the 
proposed gaming establishment

          ``would be in the best interest of the Indian tribe 
        and its members, and would not be detrimental to the 
        surrounding community, but only if the Governor of the 
        State in which the gaming activity is to be conducted 
        concurs in the Secretary's determination.''\31\
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    \31\25 U.S.C. Sec. 2719 (1988).

    According to the Department of the Interior, since IGRA was 
enacted only sixteen applications for a two-part determination 
have been submitted and eight of those sixteen applications 
have been approved.\32\
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    \32\This process is not widely used by tribes seeking to conduct 
gaming. Most tribes operate, or seek to operate, gaming on existing 
tribal trust land. According to the Department of the Interior, the 
other exceptions to the prohibition have been sought only 26 times. Out 
of 459 existing operations, 26 operations are indeed a nominal amount. 
Likewise, gaming is not the most frequently identified purpose for 
trust land applications. In fact, gaming as a purpose constitutes less 
than four percent of the total tribal trust land applications submitted 
to the Department of the Interior.
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    Indian Land Claim Settlement. Another exception to the 
prohibition against gaming on after-acquired trust land applies 
to land ``taken into trust as part of a settlement of a land 
claim. . . .''\33\ Neither the IGRA nor the legislative history 
set forth a specific definition of what constitutes a land 
claim.
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    \33\25 U.S.C. Sec. 2719(b)(1)(B) (1988).
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    The Department of the Interior and the NIGC have opined to 
some degree on what might fall within a land claim for IGRA 
purposes.\34\ The Department of the Interior regulations define 
``land claim'' as any claim by a tribe concerning the 
impairment of title or other real property interest or loss of 
possession that:
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    \34\See Indian lands opinions at http://www.nigc.gov/images/
uploads/indianlands (last reviewed November 12, 2015).
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          (1) Arises under the United States Constitution, 
        Federal common law, Federal statute or treaty;
          (2) Is in conflict with the right, or title or other 
        real property interest claimed by an individual or 
        entity (private, public, or governmental); and
          (3) Either accrued on or before October 17, 1988, or 
        involves lands held in trust or restricted fee for the 
        tribe prior to October 17, 1988.\35\
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    \35\25 C.F.R. Sec. 292.2 (2015).
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    These regulations further provide that ``gaming may occur 
on newly acquired lands if the land at issue is either:
          (a) Acquired under a settlement of a land claim that 
        resolves or extinguishes with finality the tribe's land 
        claim in whole or in part, thereby resulting in the 
        alienation or loss of possession of some or all of the 
        lands claimed by the tribe, in legislation enacted by 
        Congress; or
          (b) Acquired under a settlement of a land claim that:
                  (1) Is executed by the parties, which 
                includes the United States, returns to the 
                tribe all or part of the land claimed by the 
                tribe, and resolves or extinguishes with 
                finality the claims regarding the returned 
                land; or
                  (2) Is not executed by the United States, but 
                is entered as a final order by a court of 
                competent jurisdiction or is an enforceable 
                agreement that in either case predates October 
                17, 1988 and resolves or extinguishes with 
                finality the land claim at issue.\36\
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    \36\25 C.F.R. Sec. 292.5 (2015).
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                             INDIAN GAMING

    According to the National Indian Gaming Commission, the 
revenues generated by the Indian gaming industry in 2014 
totaled $28.5 billion, an increase of 1.7% over 2013 figure of 
$28 billion.\37\
---------------------------------------------------------------------------
    \37\The net revenues have been approximately forty percent of the 
total revenues, or $11.3 billion, in fiscal year 2013. See U.S. Gov't 
Accountability, GAO-15-743T, at 7.
---------------------------------------------------------------------------
    There are 240 tribes, in 28 states, that conduct some form 
of gaming, with a total of over 459 operations. Most of the 
operations report only modest revenues. In 2014, 56 percent of 
the gaming operations reported revenue of less than $25 
million. Of the 459 total operations, 164 generated revenues of 
less than $10 million.
    Only 26, or 5.6 percent, of the total 459 operations 
generated revenues of more than $250 million per operation. 
However, that 5.6 percent accounted for 22.8 percent of the 
$28.5 billion in total revenue.
    The IGRA limits the use of these revenues to funding tribal 
government operations or programs, providing for the general 
welfare of the tribe and its members, promoting economic 
development, donating to charitable organizations, or helping 
fund local government agencies' operations. According to the 
GAO, tribal officials reported that the revenues were used ``to 
enhance or develop health and wellness programs for their 
members, offer educational programs for tribal children and 
youth, and provide tribal housing, among other uses.''\38\
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    \38\Id.
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                        THE KEEP THE PROMISE ACT

    Overview. The Keep the Promise Act, S. 152, is intended to 
prohibit gaming activities on land within the Phoenix 
metropolitan area acquired by the Secretary of the Interior in 
trust after April 9, 2013. This prohibition would end on 
January 1, 2027, when the tribal-state gaming compacts between 
the State of Arizona and several Indian tribes in Arizona 
expire.
    The effect of this bill would be to prohibit on a temporal 
basis, until January 1, 2027, the Tohono O'odham Nation from 
conducting both Class II and Class III gaming, as defined by 
the IGRA, on its land which is now held in trust in Maricopa 
County, west of Phoenix, Arizona. It would also prohibit the 
tribe from gaming on any other land the Secretary may take into 
trust after April 9, 2013, which is within the Phoenix 
metropolitan area as defined under the bill.
    The bill, however, would not prohibit the tribe from 
acquiring land into trust within the three counties as 
authorized by the Gila Bend Act and conducting other non-gaming 
forms of economic activity in the Phoenix metropolitan area 
defined by the bill. It also does not affect the current gaming 
activities conducted by the tribe at its three other existing 
gaming facilities in southern Arizona.
    Local Concerns. This bill was borne out of concerns of 
neighboring Indian tribes, various local governments, and the 
State of Arizona regarding the Tohono O'odham Nation's proposed 
gaming facility on its new trust lands in Maricopa County.\39\ 
Opponents of the tribe's plans have sought recourse through 
numerous legal challenges as well, thus far to no avail.
---------------------------------------------------------------------------
    \39\Not every local government opposes the proposed gaming 
facility. For example, the cities of Glendale, Peoria, Surprise, and 
Tolleson support the proposed gaming facility. These cities are also in 
the closest proximity to the proposed site. The Tohono O'odham Nation 
gaming facility would be located in between Glendale and Peoria.
---------------------------------------------------------------------------
    The Committee recognizes that strong views exist both in 
favor and against the casino. In fact, the four surrounding 
towns in closest proximity to the proposed casino support it. 
On the other hand, the State of Arizona and various other towns 
located in the three counties hold strong objections to 
expanding the tribe's gaming operations in the area.
    A primary complaint has been that the Tohono O'odham 
Nation's proposal does not comport with what the opponents 
argue is the intent of the state referendum, Proposition 202, 
which essentially authorized the type of gaming activities to 
be conducted in the tribal-state compacts. Opponents contend 
that, as part of obtaining voter support for this Proposition, 
the tribes agreed that there would be limited gaming in the 
state, including a limited number of gaming facilities in the 
Phoenix area.
    The opponents are also concerned that the tribe may seek to 
place other lands within the three counties into trust and 
pursue gaming opportunities on those additional trust 
lands.\40\ Such proliferation would also be contrary to the 
intent of the referendum and potentially jeopardize future 
support and compact negotiations when those compacts expire in 
2027.
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    \40\The Committee has not been informed of other parcels within the 
Phoenix metropolitan area that are either contemplated or currently 
being sought to be placed into trust for gaming purposes.
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    On the other hand, the Tohono O'odham Nation contends that 
neither the referendum nor the compacts placed such limitations 
on the tribe.\41\ The tribe further argues that it is not 
prohibited by the IGRA to pursue the gaming operations on the 
land now held in trust in Maricopa County pursuant to the Gila 
Bend Act because this acquisition qualifies for the land claim 
settlement exception to the gaming prohibition on after-
acquired land.\42\
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    \41\The tribe also points to court cases in support of its 
position. See e.g., State of Arizona v. Tohono O'odham Nation, 944 
F.Supp.2d 748 (May 7, 2013) and Gila River Indian Community, et al. v. 
U.S.A, et al., 729 F.3d 1139 (May 20, 2013).
    \42\Neither the Department of Interior nor the NIGC have made this 
determination. The Assistant Secretary for Indian Affairs testified 
before the Committee that the court appears to have made the 
determination suggesting that it is not necessary for the Department to 
do so. See Keep the Promise Act of 2014: Hearing on S. 2670 Before the 
S. Comm. on Indian Affairs, 113th Cong. 2 (2014).
---------------------------------------------------------------------------
    The issues involving the intent of the state referendum and 
effect upon the compact negotiations are typically local 
matters for the State and tribes.\43\ However, the 
implementation of the IGRA and the balance of interests in the 
conduct of Indian gaming are matters that this Committee has 
had to carefully examine over the years.
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    \43\Notwithstanding the court cases relating to this matter, the 
continued operation of tribal gaming facilities in Arizona pursuant to 
the tribal-state compacts is a matter for negotiation between the State 
and the tribes as the compacts expire in 2027.
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    As stated in the Committee Report for S. 555 which 
eventually became the IGRA, ``Congress ultimately has the 
responsibility, consistent with its plenary power over Indian 
affairs, to balance competing policy interests and to adjust, 
where appropriate, the jurisdictional framework for regulation 
of gaming on Indian lands.''\44\ That action was taken even 
though the Supreme Court has issued its decision in Cabazon and 
the Department of Interior had significant authority in 
facilitating tribal actions underlying the activities at issue. 
This current issue at hand is no less a responsibility and 
within the authority of this Committee to examine and make 
appropriate adjustments to ensure the implementation of a law 
is consistent with the policies and intent of that law.
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    \44\S. Rep. No. 100-446, at 3 (1988).
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    Balance of Interests. The complex and controversial nature 
of gambling has not diminished even though the IGRA was enacted 
over 27 years ago. In enacting the IGRA, Congress and this 
Committee, in particular, struggled to find the appropriate 
level and method of oversight and regulation which would 
assuage state and local governmental concerns for law 
enforcement and public policy and safety, yet still uphold 
tribal sovereignty.
    The IGRA was ``intended to provide a means by which tribal 
and state governments can realize their unique and individual 
governmental objectives, while at the same time, work together 
to develop a regulatory and jurisdictional pattern that will 
foster a consistency and uniformity in the manner in which laws 
regulating the conduct of gaming activities are applied.''\45\
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    \45\``The process of enacting IGRA was complex, but in the end, I 
believe that it has achieved a careful balance between the concepts of 
tribal sovereignty and States' rights.'' Indian Gaming: The Next 25 
Years: Hearing Before the S. Comm. on Indian Affairs, 113th Cong. 2 
(2014) (Statement of Senator John McCain) at 3.
---------------------------------------------------------------------------
    The legislative history of the IGRA indicates that the 
concerns of the states, as well as the Department of Justice, 
were so strongly held that Congress took the extraordinary step 
of authorizing the extension of state roles and, to the extent 
negotiated in compacts, authority in these activities on Indian 
lands.
    This role was such that the more significant gaming 
activities could not be conducted without the state 
involvement. Senator Inouye, during the debate on the bill 
which became the IGRA, stated that ``[i]t is also true that S. 
555 does not contemplate and does not provide for the conduct 
of Class III gaming activities on Indian lands in the absence 
of a tribal-state compact.''\46\
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    \46\134 Cong. Rec. 24023 (Sept. 15, 1988). (Statement of Senator 
Daniel Inouye). (emphasis added). In the unique situation where a Court 
has found that the state has acted in bad faith in negotiating for a 
compact, the tribe may pursue Secretarial procedures which may not 
include state involvement. See 25 U.S.C. Sec. 2710 (1988).
---------------------------------------------------------------------------
    However, Congress ``intend[ed] that the two sovereigns--the 
tribes and the States--will sit down together in negotiations 
on equal terms and come up with a recommended methodology for 
regulating Class III gaming on Indian lands.''\47\ These 
compacts were intended to be the ``means by which differing 
public policies of these respective governmental entities 
(tribes, states, and Federal) can be accommodated and 
reconciled.''\48\
---------------------------------------------------------------------------
    \47\134 Cong. Rec. 24024 (Sept. 15, 1988). (Statement of Senator 
Daniel Evans).
    \48\S. Rep. No. 100-446, at 6 (1988).
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    Today, the Committee is once again called upon to balance 
dueling concerns against a backdrop and convergence of Federal 
laws. This bill, S.152, is intended to harmonize the intent of 
the IGRA with the implementation of the Gila Bend Act.
    It is limited to narrowly apply in the sole context of 
gaming and ensure the intent of the IGRA is followed. Indeed, 
even the IGRA was of limited scope within the jurisprudence of 
Federal Indian law and policy.\49\ Just as the passage of IGRA 
was not intended to ``signal any new Congressional policy. . . 
.,''\50\ this bill is not intended to signal any new policy as 
well.\51\
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    \49\``Gambling is a unique situation and [Congress'] limited 
intrusion on the right of tribal self-governance in this area has no 
implications for any other area of tribal self-governance or State-
tribal relations.''\49\ 134 Cong. Rec. 24024 (Sept. 15, 1988). 
(Statement of Senator Daniel Evans). Senator Inouye echoed that view 
when debating the justification for inserting a state role in gaming. 
(``The exigencies caused by the rapid growth of gaming in Indian 
country and the threat of corruption and infiltration by criminal 
elements in Class III gaming warranted the utilization of existing 
State regulatory capabilities in this one narrow area.'') 134 Cong. 
Rec. 24025 (Sept. 15, 1988).
    \50\134 Cong. Rec. 24024 (Sept. 15, 1988) (Statement of Senator 
Daniel Evans).
    \51\In response to a Committee Member question regarding what the 
policy implication of this bill might be on future negotiations and 
settlements between tribes, the Assistant Secretary for Indian Affairs 
contended that tribes may feel that this is ``just continuing in the 
mode of breaking treaties and breaking promises to tribes.'' Keep the 
Promise Act of 2014: Hearing on S. 2670 Before the S. Comm. on Indian 
Affairs, 113th Cong. 2 (2014) (Statement of Kevin K. Washburn, 
Assistant Secretary for Indian Affairs, Department of the Interior) at 
9. The Committee strongly disagrees.
---------------------------------------------------------------------------
    The measure has been the subject of at least two hearings 
before this Committee.\52\ Testifying before the Committee on a 
predecessor bill, the Assistant Secretary for Indian Affairs, 
Kevin K. Washburn, asserted concerns that the bill would 
effectively amend the Gila Bend Act and would unilaterally 
amend the Arizona state-tribal gaming compact for the Tohono 
O'odham Nation.\53\
---------------------------------------------------------------------------
    \52\See Id. The Committee on Natural Resources of the House of 
Representatives has also held hearings on the bill and predecessor 
bills.
    \53\Id. (Statement of Kevin K. Washburn, Assistant Secretary for 
Indian Affairs, Department of the Interior) at 6.
---------------------------------------------------------------------------
    Land Claim Settlement. In the first determination on the 
land claim settlement exception under IGRA, the Secretary of 
the Interior voiced concerns about stretching ``the principles 
underlying the enactment of IGRA . . . in ways Congress never 
imagined when enacting IGRA.''\54\ We agree that these 
provisions should be interpreted consistent with the intent of 
IGRA.
---------------------------------------------------------------------------
    \54\This determination arose in the course of the review process 
for the Seneca Nation-State of New York compact. Letter to Cyrus 
Schindler from Secretary Norton, November 12, 2002, at 3. Available at 
http://www.nigc.gov/images/uploads/indianlands/
47_senecanationofindns.pdf (last reviewed November 12, 2015). In the 
case of the Seneca Nation, the issue of the land claim settlement 
exception was not a contentious matter (between the tribe and state) 
when presented to the Secretary of the Interior. By contrast, the State 
of Arizona adamantly opposes the Tohono O'odham Nation's proposed 
casino.
---------------------------------------------------------------------------
    The Committee anticipated that with the passage of IGRA, 
some changes to tribal activity might occur. The Committee 
noted that even rights under then-existing business 
arrangements could be affected.\55\
---------------------------------------------------------------------------
    \55\``The Committee believes that the plenary power of Congress 
over Indian affairs, and the extensive government regulation of 
gambling, provides authority to insist that certain minimum standards 
be met by non-Indians when dealing with Indians. The Secretary's powers 
with respect to Indians are always subject to alteration or change by 
the Congress. In the area of gaming where many factors other than 
ordinary business risk enter into the equation, the Committee has no 
reluctance in requiring changes to existing gambling enterprise 
contracts, whether or not such contracts have been given a stamp of 
approval by the Secretary.'' S. Rep. No. 100-446, at 15 (1988).
---------------------------------------------------------------------------
    In the exercise of its plenary authority, Congress defined 
in IGRA the contours of tribal land use for gaming 
purposes.\56\ Most notably, any trust land acquired after the 
enactment of the IGRA could not be used for gaming, unless an 
exception applied, so the ability to use such trust land for 
gaming purposes was not an absolute and unlimited right.\57\ 
Since that time, Congress has enacted other laws which restrict 
gaming even beyond that found in the IGRA.\58\ These 
restrictions are typically enacted contemporaneously with an 
underlying action and may be included to assuage concerns 
regarding gaming. In this case, the restrictions may not have 
been contemplated in the original Gila Bend Act.
---------------------------------------------------------------------------
    \56\``It was left to Congress to address several unresolved 
questions such as the appropriate level of Federal, State and tribal 
oversight, and what tribal lands are eligible for gaming facilities.'' 
Indian Gaming: The Next 25 Years: Hearing Before the S. Comm. on Indian 
Affairs, 113th Cong. 2 (2014) (Statement of Senator John McCain) at 3. 
Congress has acted to limit and even prohibit gaming on trust lands in 
other statutes.
    \57\One Court even went so far as to hold that the IGRA impliedly 
repealed prior statutes. See Rhode Island v. Narragansett Indian Tribe, 
19 F.3d 685 (1st Cir. 1994).
    \58\See e.g., Rhode Island Indian Claims Settlement Act, 25 U.S.C. 
Sec. 1708(b) (1996), and the Indian Pueblo Cultural Center 
Clarification Act, Pub.L.No. 111-354 (2011).
---------------------------------------------------------------------------
    The Indian gaming industry is also highly regulated. In 
fact, the Committee has received testimony regarding how 
heavily Indian gaming is regulated by three sovereigns in many 
regards.\59\ With a heavily regulated industry, land use 
changes sometimes may occur, particularly when needed to 
conform to the principles and intent of the underlying law.
---------------------------------------------------------------------------
    \59\See Indian Gaming: The Next 25 Years: Hearing Before the S. 
Comm. on Indian Affairs, 113th Cong. 2 (2014).
---------------------------------------------------------------------------
    Compact. The disputes between the Tohono O'odham Nation and 
the State of Arizona over the proposed casino, however, 
suggests that the balance of interests intended to be 
negotiated and agreed upon in the compact has been disrupted. 
At a minimum, the Governor has opined that the proposed casino 
is contrary to the public interest. The Committee has not since 
been informed that the State of Arizona has reversed its 
positions against the legality of the proposed gaming facility 
or that its concerns have been assuaged--even despite all the 
court decisions regarding this proposed casino.
    Unless there is some other information not provided to the 
Committee, the existing compact between the Tohono O'odham 
Nation and the State of Arizona remains in effect. While the 
bill effectively adds a limitation not expressly included in 
the compact, the bill does not terminate that compact or amend 
its terms nor does it require the tribe's three existing 
casinos located in southern Arizona, to close or alter 
operations.
    The Committee is concerned about what effect this situation 
may have on future tribal gaming efforts as well as proposed 
trust land acquisitions for gaming purposes.\60\ The other 
tribes in the state have also expressed concerns about how this 
situation may affect their ability to negotiation for their 
compacts which expires in 2027.
---------------------------------------------------------------------------
    \60\See Carcieri: Bringing Certainty to Trust Land Acquisitions: 
Hearing Before the S. Comm. on Indian Affairs, 113th Cong. 1 (2013).
---------------------------------------------------------------------------
    The bill would allow the parties the opportunity to work to 
resolve the various interests at play.\61\ While the Committee 
urges the parties to work to resolve the differences, the 
Committee also reminds the parties that IGRA prohibits bad 
faith in negotiations.
---------------------------------------------------------------------------
    \61\See Indian Gaming: The Next 25 Years: Hearing Before the S. 
Comm. on Indian Affairs. 113th Cong. 2 (2014) (Statement of Senator 
John McCain). (``It is my desire that the Committee fully understand 
the tremendous amount of controversy that this situation has generated 
in Arizona and how the courts are applying the land claim settlement 
exception under IGRA. * * * I still hope that we can resolve this issue 
by sitting down, party to party, individual to individual, tribe to 
government, and try and resolve this issue which has caused so much 
controversy and difficulties in our State of Arizona.'') at 4.
---------------------------------------------------------------------------
    The IGRA was intended to ``achieve a fair balancing of 
competitive economic interests''\62\ not to provide an economic 
monopoly to any particular entity. The Committee has previously 
noted and reiterates once again that the ``compact requirement 
for Class III not be used as a justification . . . for the 
protection of other State-licensed gaming enterprises from free 
market competition with Indian tribes.''\63\
---------------------------------------------------------------------------
    \62\S. Rep. No. 100-446, at 2 (1988).
    \63\S. Rep. No. 100-446, at 13 (1988).
---------------------------------------------------------------------------
    However, the Committee would also stress that once compacts 
have been negotiated and entered into by the parties and 
approved by the Secretary, Congress is not the appropriate 
forum for revisiting these negotiated compacts or for 
protecting markets, thereby circumventing free and open 
competition.\64\
---------------------------------------------------------------------------
    \64\In the first determination on the land claim settlement 
exception under IGRA, the Secretary of the Interior also noted a 
reluctance to restrict competition. (`` * * * I still find a provision 
excluding other Indian gaming anathema to basic notions of fairness in 
competition and, if pushed to its extreme by future compacts, 
inconsistent with the goals of IGRA.'') Letter to Cyrus Schindler from 
Secretary Norton, November 12, 2002, at 5. Available at http://
www.nigc.gov/images/uploads/indianlands/47_senecanationofindns.pdf 
(last reviewed November 12, 2015).
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    Senators McCain and Flake introduced S.152 on January 13, 
2015. The Committee did not hold a hearing on this bill, but 
held a hearing on a predecessor bill during the 113th Congress. 
The Committee held a business meeting on April 29, 2015, at 
which the bill was ordered reported, without amendment, by 
majority voice vote.
    The House companion bill, H.R. 308, the Keep the Promise 
Act of 2015, was introduced on January 12, 2015, by 
Representative Franks and is cosponsored by Representatives 
Conyers, Gosar, Kildee, Kirkpatrick, and Salmon. On March 25, 
2015, the House Natural Resources Committee considered the 
bill, without a hearing, at a business meeting and, by voice 
vote, ordered the bill reported to the House of 
Representatives. On November 16, 2015, the House of 
Representatives voted not to suspend the rules to consider H.R. 
308.
    These two bills are substantively identical to each other 
and, with only minor technical differences, to previous 
iterations of the legislation introduced in the 113th Congress. 
These bills are drafted somewhat differently than the prior 
bill introduced in the 112th Congress. However, the purpose and 
intent of these bills are essentially the same.
    113th Congress. In the 113th Congress, Senators McCain and 
Flake introduced the Keep the Promise Act of 2014, S. 2670, on 
July 28, 2014. The Committee eld a hearing on the bill on 
September 17, 2014, at which the Administration, through the 
Assistant Secretary for Indian Affairs, Kevin Washburn, 
testified.
    In addition to this legislative hearing, the Committee also 
held an oversight hearing on Indian gaming on July 23, 2014, 
entitled ``Indian Gaming: The Next 25 Years'' at which one 
panel of witnesses provided testimony on the issues involved 
with the bill.
    In the 113th Congress, Representative Franks introduced the 
House bill, H.R. 1410, the Keep the Promise Act of 2013 on 
April 9, 2013. On May 16, 2013, the Subcommittee on Indian and 
Alaska Native Affairs of the Natural Resources Committee held a 
hearing on the bill. On July 24, 2013, the House Natural 
Resources Committee ordered the bill to be favorably reported 
to the full House of Representatives by a roll call vote of 35-
5. The House of Representatives passed H.R. 1410 by voice vote 
on September 17, 2013. The bill was received in the Senate the 
following day and referred to the Committee on Indian Affairs. 
No further action was taken on either S. 2670 or H.R. 1410.
    112th Congress. In the 112th Congress, Representative 
Franks introduced H.R. 2938, the Gila Bend Indian Reservation 
Lands Replacement Clarification Act on September 15, 2011. It 
was co-sponsored by Representatives Baca, Boren, Flake, Gosar, 
Kildee, McCollum, Quayle, and Schweikert. On October 4, 2011, 
the Subcommittee on Indian and Alaska Native Affairs of the 
House Natural Resources Committee held a hearing on the bill. 
On November 17, 2011, the Committee ordered the bill, as 
amended, to be reported by a rollcall vote of 32-11.
    The House of Representatives passed the bill on June 19, 
2012. It was received by the Senate the following day and 
referred to the Committee on Indian Affairs. No further action 
was taken on the bill.

                  COMMITTEE ACTION AND RECOMMENDATION

    On April 29, 2015, the Committee held a duly called 
business meeting to consider S.152. No amendments were offered 
to the bill. By majority voice vote, the Committee ordered the 
bill to be reported and recommended that the bill, without 
amendment, do pass.

                 SECTION-BY-SECTION ANALYSIS OF S. 152

Section 1. Short title

    This Act may be cited as the ``Keep the Promise Act of 
2015''.

Section 2. Findings

    Section 2 provides that in 2002, the voters in the state of 
Arizona passed Proposition 202 and, to gain support for the 
vote, Indian tribes agreed to limit the number of casinos in 
the state and Phoenix metropolitan area; and this bill would 
preserve that agreement until the expiration of the gaming 
compacts authorized by Proposition 202.

Section 3. Definitions

    Section 3 defines key terms used in the Act. The terms 
``Indian tribe'', ``class II gaming'', and ``class III gaming'' 
have the same meaning as the terms are defined in the Indian 
Gaming Regulatory Act. This section also provides a defined 
area for the ``Phoenix metropolitan area'' in Maricopa and 
Pinal counties in Arizona.

Section 4. Gaming clarification

    Section 4 prohibits Class II gaming and Class III gaming on 
land within the Phoenix metropolitan area acquired by the 
Secretary of the Interior in trust for the benefit of an Indian 
tribe after April 9, 2013. This prohibition expires on January 
1, 2027.

                   COST AND BUDGETARY CONSIDERATIONS

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 12, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 152, the Keep the 
Promise Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 152--Keep the Promise Act of 2015

    S. 152 would prohibit gambling (other than social games for 
prizes of minimal value) on property near Glendale, Arizona 
that is owned by the Tohono O'odham Nation and held in trust by 
the United States for the benefit of the tribe. That 
prohibition would last until 2027. The Tohono O'odham Nation is 
currently constructing a resort and casino on this property and 
expects to begin operations within a year.
    Based on information from the Tohono O'odham Nation, CBO 
expects that if S. 152 were enacted, the tribe would pursue 
litigation against the federal government to recover its 
financial losses caused by the prohibition on gambling. Whether 
the tribe would prevail in such litigation and when those 
proceedings might be concluded are both uncertain. The basis 
for any judicial determination of the tribe's financial losses 
is also uncertain. CBO estimates that possible compensation 
payments from the government could range from nothing to more 
than $1 billion; however, we have no basis for estimating the 
outcome of the future litigation. Because enacting S. 152 could 
increase direct spending, pay-as-you-go procedures apply. 
Enacting S. 152 would not affect revenues.
    CBO estimates that enacting S. 152 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2026.
    By prohibiting gambling on land that the tribe is currently 
planning to use for such a purpose, the bill would impose an 
intergovernmental mandate, as defined in the Unfunded Mandates 
Reform Act (UMRA). Absent the bill, CBO estimates that the 
tribe will collect more than $100 million annually once the 
casino begins operations, probably in 2016. Those costs would 
exceed the annual threshold established in UMRA ($77 million in 
2015, adjusted annually for inflation) in at least one of the 
first five years after enactment of the bill.
    S. 152 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: CBO expects that 
the Tohono O'odham Nation would pursue litigation against the 
federal government if S. 152 is enacted. CBO has no basis for 
judging the outcome of that litigation. It is possible that the 
federal government would incur no compensation costs, or that 
it would pay the tribe a settlement or be ordered to pay 
compensation by a court. Any such payment would increase direct 
spending, and the amount could exceed $1 billion. The federal 
government also would incur discretionary costs, which are 
subject to appropriation, to defend itself in the expected 
litigation. The amount of such costs would depend on the length 
and extent of the legal challenges.
    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the end of 2015 and that under 
current law the Tohono O'odham Nation will probably commence 
gambling operations and begin generating gambling revenue in 
2016.

Outcome of future litigation

    CBO expects that enacting the legislation would probably 
result in litigation against the federal government by the 
Tohono O'odham Nation. Based on information from the tribe, CBO 
expects the tribe would seek compensation for financial losses 
caused by S.152. To date, the tribe has prevailed in disputes 
with Arizona and other tribes about its planned gaming 
operations on the property. A 2013 district court decision on 
whether gambling on the site is consistent with current federal 
law concluded that ``the Glendale-area land acquired by the 
Nation with LRA\65\ funds qualifies for gaming under IGRA\66\ 
Sec. 2719(b)(1)(B)(1). The land also qualifies for gaming under 
Sec.  3(j)(1) of the Compact, which specifically authorizes 
gaming on after-acquired lands that qualify for gaming under 
Sec.  2719.''\67\
---------------------------------------------------------------------------
    \65\Gila Bend Indian Reservation Lands Replacement Act, Public Law 
99-503.
    \66\Indian Gaming Regulatory Act, Public Law 100-497.
    \67\State of Arizona, et al. v Tohono O'odham Nation, 944 F. Supp. 
2d 748, 756 (D. Ariz. 2013).
---------------------------------------------------------------------------
    That decision is now under appeal at the Ninth Circuit 
Court of Appeals. Although the tribe has been successful in 
litigation thus far and construction of its resort and casino 
is underway, it may be more difficult for the tribe to prevail 
in a claim brought after enactment of S. 152 because of the 
types of claims available to it and the facts of this 
particular situation. The outcome of such litigation is 
uncertain. CBO expects the tribe would argue that the 
legislation caused either a regulatory taking of the tribe's 
property interest in gaming on that land, or a breach of the 
settlement agreement that permitted the tribe to acquire the 
land for nonagricultural economic development purposes. In 
either circumstance, the federal government could be required 
to compensate the tribe. Any such compensation would probably 
be paid from the Judgment Fund (a permanent, indefinite 
appropriation for claims and judgments against the United 
States).

Amount of compensation

    To estimate the amount of compensation that might be due to 
the tribe, CBO reviewed the outcome of other cases involving 
regulatory takings, tribal land settlements, and gaming 
disputes. We also consulted with the Tohono O'odham Nation, 
other Arizona tribes, and federal and state agencies that 
regulate tribal gaming to estimate the net receipts that the 
tribe may realize from the casino operations of the resort now 
under construction.
    CBO concluded that:
           Regulatory taking claims are often 
        unsuccessful and usually do not lead to significant 
        economic awards when (as in this case) the taking does 
        not fully diminish the economic value of the property;
           The outcomes of disputes about tribal gaming 
        and land settlement agreements vary and are generally 
        dependent on the specific facts of each dispute, making 
        it difficult to use past disputes to predict the 
        outcome of new cases;
           Prohibiting the tribe from operating 
        gambling activities at the resort and casino near 
        Glendale could result in a loss of net income to the 
        tribe of more than $1 billion over the next decade; and
           Whether gaming was among the nonagricultural 
        economic development activities envisioned under the 
        tribe's land settlement agreement is unclear because 
        the property was acquired as a result of a land 
        settlement agreement with the federal government that 
        was enacted two years before the Indian Gaming 
        Regulatory Act, which authorized gambling on tribal 
        lands under certain circumstances.
    CBO estimates that possible awards to the tribe following 
litigation could range from no monetary award to more than $1 
billion. After considering the uncertainties about whether the 
tribe would prevail in a future lawsuit against the federal 
government, and the unpredictability of the amount of any 
award, CBO concluded that there is no basis to predict the 
amount of monetary award or settlement, if any, that the tribe 
would receive as a result of the enactment of S. 152.
    Pay-As-You-Go-considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. Enacting S. 152 could increase direct spending over 
the 2015-2025 period; however, CBO has no basis for estimating 
the amount or timing of such spending, if any.
    Increase in long term direct spending and deficits: CBO 
estimates that enacting S. 152 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2026.
    Estimated impact on state, local, and tribal governments: 
By prohibiting gaming on land that the tribe is currently 
planning to use for such a purpose, the bill would impose an 
intergovernmental mandate, as defined in UMRA. Absent the bill, 
CBO estimates that the tribe will net more than $100 million 
annually once the casino begins operations, probably in 2016. 
That estimate is a probabilistic assessment based on 
information from the tribe about projected revenues, accounting 
for uncertainty of projected revenues, operating expenses, and 
payments the tribe is required to make from gaming revenue, 
which all may be higher or lower than expected. It also 
accounts for the possibility that already pending legal actions 
could delay or prohibit gaming activities on the land. The cost 
of that mandate on the tribe would exceed the annual threshold 
established in UMRA ($77 million in 2015, adjusted annually for 
inflation) in at least one of the first five years after 
enactment of the bill, CBO estimates.
    If the bill is enacted and the tribe submits a successful 
claim for damages against the federal government, such 
settlement amounts would benefit the tribe.
    Estimated impact on the private sector: S. 152 contains no 
private-sector mandates as defined in UMRA.
    Previous CBO estimate: On April 24, 2015, CBO transmitted a 
cost estimate for H.R. 308, the Keep the Promise Act of 2015, 
as ordered reported by the House Committee on Natural Resources 
on March 25, 2015. The two bills are very similar, and the CBO 
cost estimates are the same.
    Estimate prepared by: Federal Costs: Kim Cawley; Impact on 
State, Local, and Tribal Governments: Melissa Merrell; Impact 
on the Private Sector: Amy Petz.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 152 would 
have a minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has not received any Executive Communications 
on S. 152.

                     ADDITIONAL VIEWS OF JON TESTER

    While proponents of the bill discuss the issue as one of 
purely local concern for the State of Arizona and tribes 
located in the state, it should be pointed out that the 
solution provided by S. 152 could impact future negotiations to 
settle claims by tribes against the United States. In the Gila 
Bend Act, the Tohono O'odham Tribe entered into a settlement 
waiving its claims against the United States related to the 
flooding of its lands. For waiving its claims, the Tribe 
secured new lands to be held in trust for the Tribe by the 
United States, which Congress intended to be used specifically 
for sustained economic development to ``promote the economic 
self-sufficiency of the O'odham Indian people.''[1] 
Passage of S. 152 would run counter to fulfilling the goals of 
the Gila Bend Act.
---------------------------------------------------------------------------
    \[1]\Pub. L. No. 99-503, Section 2(4)
---------------------------------------------------------------------------
    The Majority correctly points out that other Acts of 
Congress have included gaming restrictions. However, these 
restrictions are usually included contemporaneously with an 
underlying action and the tribal stakeholder has agreed to its 
inclusion to gain support for the underlying action. Here, 
Congress would be establishing a land use restriction on 
settlement lands nearly thirty years after passage of the 
underlying action and imposing the restriction on the Tribe's 
settlement lands over the Tribe's objections.
    In its discussion and footnotes, the Majority disagrees 
with the assertion that passage of S. 152 would harm future 
negotiations resolving tribal claims against the United States. 
While tribes are already aware that Congress' plenary authority 
over Indian Affairs poses some risk to the certainty of any 
settlement between tribes and the United State, passage of S. 
152 would only highlight that agreements ratified by Congress 
decades earlier could still be altered by a future Congress 
over tribal objections. While the extent of the impact on 
future negotiations cannot be known, it is plausible that 
tribes would be more reluctant to enter into settlement 
agreements due to the passage of S. 152 or similar acts that 
place restrictions on tribal development.
    Finally, The Congressional Budget Office has raised 
concerns that the cost of litigation against the United States 
could result in significant liability to the American 
taxpayer--perhaps as much as $1 billion. While such analysis is 
speculative, it should not be dismissed.

                                                        Jon Tester.

                    ADDITIONAL VIEWS OF JOHN McCAIN

    I introduced this legislation on behalf of Arizona mayors 
and other local-elected officials who objected strenuously that 
the Tohono O'odham Nation, or any other Indian tribe, would be 
allowed by the Interior Department to airdrop a gaming facility 
into their community. During the wake of the Supreme Court's 
landmark Cabazon decision, the Senate contemplated the impact 
that Indian gaming facilities could have on non-Indian 
communities. Congress then enacted the Indian Gaming Regulatory 
Act of 1988 (IGRA) that, among other things, prohibits Indian 
gaming on land not contiguous to an extant Indian reservation 
but for very limited exceptions. As one of the authors of IGRA, 
as well as the Gila Bend Indian Reservation Replacement Lands 
Act, I can attest that it was not the intent of Congress that 
IGRA's land-claim settlement exception would apply to the West 
Valley lands now held in trust by the Department of the 
Interior for the Tohono O'odham Nation.
    The imminent opening of the Tohono O'odham Nation gaming 
facility has created tremendous controversy in Arizona among 
non-Indian communities and tribal governments alike. Therefore, 
this legislation would prohibit the operation of class II and 
class III Indian gaming in the Phoenix metropolitan until 2027 
when state and tribal parties may address this matter through 
the state-tribal gaming compact renegotiation process.

                                                       John McCain.
                        CHANGES IN EXISTING LAW

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the bill, S. 152, as ordered 
reported, would make no changes in existing law.

                                  [all]
```