I

103D CONGRESS

2D SESSION H. R. 4787

To amend the Indian Gaming Regulatory Act, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 19, 1994

Mr. TORRES introduced the following bill; which was referred to the

Committee on Natural Resources

A BILL

To amend the Indian Gaming Regulatory Act, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; REFERENCE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Indian Gaming Regulatory Act Amendments of 1994’’.

6 (b) REFERENCE.—Except as otherwise expressly pro7 vided, whenever in this Act an amendment or repeal is

8 expressed in terms of an amendment to, or repeal of, a

9 section or other provision, the reference shall be consid10 ered to be made to a section or other provision of the In11 dian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
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1 SEC. 2. DEFINITIONS.

2 (a) CLASS II GAMING.—(1) Clause (i) of section

3 4(7)(A) (25 U.S.C. 2703(7)(A)) is amended—

4 (A) by striking ‘‘(if played in the same loca5 tion)’’; and

6 (B) by striking ‘‘bingo, and’’ and inserting

7 ‘‘bingo (whether or not electronic, computer, or

8 other technologic aids are used in connection there9 with so long as the fundamental characteristics of

10 the game remain the same), and’’.

11 (2) Clause (ii) of section 4(7)(A) (25 U.S.C.

12 2703(7)(A)) is amended by striking ‘‘that—’’ and all that

13 follows through ‘‘such card games.’’ at the end thereof and

14 inserting a period.

15 (3) Clause (ii) of section 4(7)(B) (25 U.S.C.

16 2703(7)(B)) is amended by inserting ‘‘, except electronic

17 or technological aids used in connection with class II

18 games,’’ after ‘‘game of chance’’.

19 (4) Subparagraph (C) of section 4(7) (25 U.S.C.

20 2703(7)) is amended by striking ‘‘Chairman’’ and insert21 ing ‘‘Commission’’.

22 (5) Paragraph (7) of section 4 (25 U.S.C. 2703) is

23 amended by striking subparagraphs (D), (E), and (F).

24 (6) Paragraph (8) of section 4 (25 U.S.C. 2703) is

25 amended by inserting at the end ‘‘and means manufactur26 ing and assembly of gaming devices (defined as gambling
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1 devices by section 5 of the Act of January 2, 1951 (15

2 U.S.C. 1175)).’’.

3 (b) COMPACT; ELECTRONIC FACSIMILE.—Section 4

4 of the Act (25 U.S.C. 2703) is amended by adding at the

5 end the following new paragraphs:

6 ‘‘(11) The term ‘Compact’ means the regulatory

7 regime for operating class III gaming entered into

8 by a tribe and the Secretary.

9 ‘‘(12) The term ‘electronic facsimile’ means a

10 copy of some or all of the fundamental elements of

11 a game, where the electronic or electromechanical

12 device alters the game rather than simply electroni13 cally replicating the fundamental elements of a

14 game.’’.

15 (c) SECTION 6 OF PUBLIC LAW 101–301.—Section

16 6 of Public Law 101–301 (25 U.S.C. 2703 note; 104 Stat.

17 209) is repealed.

18 SEC. 3. POWERS OF THE CHAIRMAN.

19 Section 6(b) of the Act (25 U.S.C. 2705(b)) is

20 amended to read as follows:

21 ‘‘(b) Prior to taking any action set forth in subsection

22 (a) of this section, the Chairman shall, in good faith, con23 sult with the Tribe which has jurisdiction over the gaming

24 activity in dispute and attempt to resolve the dispute in

25 a manner that avoids such actions. Only after the Com-
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1 mission has concluded that cooperative resolution has been

2 adequately pursued and that further consultation would

3 be futile, may the Chairman take such actions.’’.

4 SEC. 4. POWERS OF THE COMMISSION.

5 Section 7 (25 U.S.C. 2706) is amended—

6 (1) in subsection (a)(2), by inserting ‘‘appro7 priate but not punitive’’ after ‘‘collection of’’;

8 (2) in subsections (b)—

9 (A) in paragraph (1), by inserting ‘‘and

10 class III gaming, where a Compact so provides,

11 where gaming is’’ after ‘‘class II gaming’’; and

12 (B) in paragraph (2), by inserting ‘‘and

13 class III gaming, where a Compact so provides,

14 where gaming’’ after ‘‘class II gaming’’; and

15 (3) by striking subsection (c).

16 SEC. 5. INTERIM AUTHORITY TO REGULATE GAMING.

17 Section 10 of the Act (25 U.S.C. 2709) is repealed.

18 SEC. 6. TRIBAL GAMING ORDINANCES.

19 (a) CLASS II GAMING.—Subsection (b) of section 11

20 (25 U.S.C. 2710) is amended by amending subparagraph

21 (A) of paragraph (4) to read as follows:

22 ‘‘(A) A tribal ordinance or resolution may provide for

23 the licensing or regulation of Indian charitable class II

24 gaming activities on Indian lands up to the same level and

25 scope as permitted by tribal class II gaming. A tribal ordi-
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1 nance or resolution may provide for the licensing or regu2 lation of class II gaming activities owned by any person

3 or entity other than the Indian tribe and conducted on

4 Indian lands, only if the tribal licensing requirements in5 clude the requirements described in the subclauses of sub6 paragraph (B)(i) and are at least as restrictive as those

7 established by State law governing similar gaming within

8 the jurisdiction of the State within which such Indian

9 lands are located.’’.

10 (b) REGULATION OF CLASS II GAMING.—Subsection

11 (c)(3) of section 11 (25 U.S.C. 2710) is amended by in12 serting ‘‘, whether by management contract or otherwise,’’

13 after ‘‘class II gaming activity’’ in the matter preceding

14 subparagraph (A).

15 (c) CLASS III GAMING.—Section 11(d) (25 U.S.C.

16 2710(d)) is amended—

17 (1) in paragraph (1), by amending subpara18 graphs (B) and (C) to read as follows:

19 ‘‘(B) located in a State where the requirements

20 of paragraphs (6)(A) and (B) are satisfied and the

21 gaming activity is eligible for inclusion in a Com22 pact, and

23 ‘‘(C) conducted in conformance with a Compact

24 that is in effect.’’;

25 (2) in paragraph (2)—
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1 (A) by striking ‘‘Tribal-State compact en2 tered into under paragraph (3) by the Indian

3 tribe’’ in subparagraph (C) and inserting

4 ‘‘Compact’’;

5 (B) by striking ‘‘Tribal-State compact’’ in

6 subparagraph (D)(iii)(I) and inserting ‘‘Com7 pact’’;

8 (3) by amending paragraph (3) to read as fol9 lows:

10 ‘‘(3)(A)(i) Any Indian tribe having jurisdiction over

11 the Indian lands upon which a class III gaming activity

12 is to be conducted shall request the Secretary to enter into

13 a Compact with the tribe. Such request shall specify the

14 gaming activity or activities to be governed by the Com15 pact.

16 ‘‘(ii) Negotiations between the tribe and the Sec17 retary shall be completed within 180 days, subject to the

18 procedures required by paragraph (5)(B) that the Sec19 retary and the tribe shall utilize to resolve disputes arising

20 from negotiations.

21 ‘‘(iii) The Compact shall be effective upon publication

22 in the Federal Register by the Secretary.

23 ‘‘(iv) The Commission shall pursuant to section 7 of

24 this Act monitor class III gaming to the extent provided

25 by each Compact as published by the Secretary.
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1 ‘‘(B) Any Compact entered into under subparagraph

2 (A) may include provisions relating to—

3 ‘‘(i) the adoption of any of the criminal and

4 civil laws and regulations of the Indian tribe, or with

5 tribal consent, of the State, that are directly related

6 to, and necessary for, the licensing and regulation of

7 such activity;

8 ‘‘(ii) the assessment by the Secretary of such

9 activities in such amounts as are necessary to defray

10 the costs of regulating such activity;

11 ‘‘(iii) remedies for breach of contract;

12 ‘‘(iv) standards for the operation of such activ13 ity and maintenance of the gaming facility, including

14 licensing; and

15 ‘‘(v) any other subjects that are reasonably re16 lated to the operation of gaming activities.’’.

17 (4) by striking out paragraphs (4) and (5);

18 (5) by striking paragraph (8) and redesignating

19 paragraph (9) as paragraph (11); and

20 (6) by striking paragraphs (6) and (7) and in21 serting the following:

22 ‘‘(4) The provisions of section 5 of the Act of January

23 2, 1951 (25 Stat. 1175), shall not apply to any gaming

24 on Indian lands, or to manufacturing and assembly of

25 gaming devices on Indian lands.
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1 ‘‘(5)(A) The United States district courts shall have

2 jurisdiction over—

3 ‘‘(i) any cause of action for a declaratory judg4 ment arising from the failure of an Indian tribe and

5 the Secretary to resolve disputes pursuant to para6 graph (3) of this section,

7 ‘‘(ii) any cause of action initiated by United

8 States or Indian tribe to enjoin a class III gaming

9 activity located on Indian tribes and conducted in

10 violation of any Compact entered into under para11 graph (3) that is in effect, and

12 ‘‘(iii) any cause of action initiated by the Sec13 retary or a tribe to enforce provisions of Compacts.

14 ‘‘(B) Notwithstanding any declaratory judgment ac15 tion pending under paragraph (6), a tribe and the Sec16 retary may negotiate and proceed to mediation under the

17 Act on issues not subject to the declaratory judgment ac18 tion.

19 ‘‘(6)(A) No later than 120 days after the Tribe has

20 notified the Secretary its election to negotiate a Compact,

21 or no later than such longer period as may be extended

22 in writing by the parties, either party may initiate an ac23 tion in Federal district court for a declaration whether a

24 gaming activity is subject to Compact negotiation under

25 this Act. In any such declaratory action, the court shall
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1 declare that the gaming activity as a matter of Federal

2 law shall be the subject of negotiation if it finds that—

3 ‘‘(i) the gaming activity is not prohibited as a

4 matter of State criminal law and public policy; or

5 ‘‘(ii) if the gaming activity is subject to pros6 ecution and criminal sanction as a matter of State

7 law, the gaming activity meets one or more of the

8 following criteria—

9 ‘‘(I) its principal characteristics are sub10 stantially similar to principal characteristics of

11 gaming activities that are not subject to pros12 ecution and criminal sanction as a matter of

13 State law;

14 ‘‘(II) State law permits the gaming activity

15 subject to regulation;

16 ‘‘(III) as a matter of State law some per17 son, organization, or entity within the State

18 may engage in the gaming activity for some

19 purpose; and

20 ‘‘(IV) there is a pervasive pattern of non21 enforcement of the prohibition of such gaming.

22 ‘‘(B) The Compact also shall include such provisions

23 which best meet the objectives of this Act and are consist24 ent with any declaratory judgment issued pursuant to this

25 paragraph.
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1 ‘‘(7)(A) Subject to subparagraph (B), if the parties

2 agree on a Compact, the Secretary shall adopt such Com3 pact and publish the Compact in the Federal Register.

4 ‘‘(B) The Compact referred to in subparagraph (A)

5 shall not be approved by the Secretary—

6 ‘‘(i) unless it contains provisions relating to in7 ternal controls of cash flow transactions, record8 keeping and reporting, accounting, security, and li9 censing of employees; and

10 ‘‘(ii) if the Compact does not violate—

11 ‘‘(I) any provisions of this Act;

12 ‘‘(II) any other provision of Federal law

13 that does not relate to jurisdiction over gaming

14 on Indian reservations; or

15 ‘‘(III) the trust obligations of the United

16 States to Indians.

17 ‘‘(8) Except for an appeal under chapter 7 of title

18 5, United States Code, publication of a Compact pursuant

19 to this subsection which permits a class III gaming activ20 ity shall be conclusive that such class III gaming is an

21 activity subject to negotiations where the gaming is to be

22 conducted, in any matter under consideration by the Com23 mission or a Federal court.

24 ‘‘(9) If the parties do not agree on a Compact under

25 this subsection before the date that is 45 days after the
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1 expiration of the 180-day period with respect to the last

2 Tribal Compact proposal during the 180-day period, the

3 Compact shall be considered approved, but only to the ex4 tent that the Compact is consistent with the provisions

5 of this Act.

6 ‘‘(10) The Secretary shall publish in the Federal Reg7 ister notice of any Compact that has been approved, or

8 considered to have been approved, under this subsection.

9 Failure of the Secretary to publish pursuant to this sub10 section shall not affect the legality of the compact, which

11 shall be treated as if notice was timely and properly pub12 lished.’’;

13 (7) in paragraph (11) (as so redesignated), by

14 striking ‘‘subsections (b), (c), (d), (f), (g), and (h)

15 of’’.

16 SEC. 7. REVIEW OF EXISTING ORDINANCES AND CON17 TRACTS.

18 (a) MANAGEMENT CONTRACT.—Paragraph (3) of

19 section 12(a) (25 U.S.C. 2711(a)) is amended by striking

20 ‘‘all collateral agreements to such contract that relate to

21 the gaming activity’’ and inserting ‘‘all other agreements

22 that comprise whole or partial consideration of the parties

23 entering into the management agreement’’.

24 (b) REVIEW.—Paragraph (1) of section 13(c) (25

25 U.S.C. 2712(c)) is amended by striking ‘‘all collateral
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1 agreements,’’ and inserting ‘‘all related agreements involv2 ing the same parties, financing or leasing agreements, or

3 any agreement that pertains to significant management

4 functions or responsibilities,’’.

5 SEC. 8. CIVIL PENALTIES.

6 (a) DATE FROM WHICH FINES RUN.—Paragraph (1)

7 of section 14(a) (25 U.S.C. 2713(a)) is amended by add8 ing at the end the following: ‘‘Fines imposed under this

9 paragraph may not run from before the date of notice of

10 violation.’’.

11 (b) INFORMAL DISPUTE RESOLUTION.—Paragraph

12 (2) of section 14(a) (25 U.S.C. 2713(a)) is amended by

13 inserting ‘‘an opportunity for resolving disputes informally

14 and’’ after ‘‘provide’’.

15 SEC. 9. GAMING ON LANDS ACQUIRED AFTER DATE OF EN16 ACTMENT.

17 (a) REPEAL OF CONCURRENCE BY GOVERNOR.—

18 Subparagraph (A) of section 20(b)(1) (25 U.S.C.

19 2719(b)(1)) is amended by striking ‘‘, but only’’ and all

20 that follows through ‘‘determination’’.

21 (b) APPLICATION OF INTERNAL REVENUE CODE.—

22 Paragraph (1) of section 20(d) (25 U.S.C. 2719(d)) is

23 amended—

24 (1) by inserting ‘‘, and the exemption from

25 Federal taxes provided to the States with respect to
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1 any gaming activity,’’ after ‘‘wagering operations’’

2 the first place it appears; and

3 (2) by striking ‘‘or under a Tribal-State’’ and

4 all that follows through ‘‘effect,’’ and inserting ‘‘and

5 the reporting of cash transactions,’’.

6 SEC. 10. CRIMINAL PENALTIES.

7 Subsections (c)(2) and (d) of section 1166 of title 18,

8 United States Code, are each amended by striking ‘‘Tribal

9 State compact’’ and inserting ‘‘Compact’’.

10 SEC. 11. APPLICABILITY OF FEDERAL LAWS TO CLASS III

11 GAMING.

12 The Act (25 U.S.C. 2701 et seq.) is amended by add13 ing at the end the following:

14 ‘‘MISCELLANEOUS

15 ‘‘SEC. 25. (a) Class III gaming activities that are as

16 a matter of Federal law, lawfully in any jurisdiction on

17 the date of the enactment of this section, shall, notwith18 standing the provisions of this Act, remain lawful for pur19 poses of section 11(d)(6) of this Act.

20 ‘‘(b) For purposes of Federal law, the laws in effect

21 on the date that a tribe notifies the Secretary (or prior

22 to 1993, notified the State) that it wishes to negotiate a

23 Compact, shall be the basis for determining the scope of

24 gaming in section 11(d) of this Act for any Compact, or

25 for procedures in lieu of a compact.
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1 ‘‘(c) For purposes of this Act, any change in State

2 law which occurs after the earlier of (1) a Tribe’s request

3 to the State for negotiations of a Tribal-State Compact

4 pursuant to this Act, or (2) the Tribe’s request to the Sec5 retary for a Compact pursuant to this Act, shall not have

6 any affect upon the terms and conditions of the Compact,

7 or upon the obligations of any government entity pursuant

8 to this Act.

9 ‘‘(d) Notwithstanding any provision of this Act, tribes

10 with Indian lands in the Eastern District of Washington

11 shall be entitled to conduct class III gaming activities

12 without a Compact, as long as such games are limited to

13 the nature and scope of gaming activities in effect on or

14 prior to November 1, 1994, so long as such activities are

15 otherwise in compliance with this Act.

16 ‘‘(e) Notwithstanding any provision of this Act, tribes

17 with Indian lands in Wisconsin shall be entitled to conduct

18 class III gaming activities consistent with the decision of

19 the Federal district court in Lac du Flambeau Band of

20 Lake Superior Chippewa v. State of Wisconsin, 770 F.

21 Supp. 480 (W.D. Wis. 1991).’’.

22 SEC. 12. EFFECTIVE DATE.

23 (a) TRIBAL-STATE COMPACTS.—Notwithstanding

24 any other provision of this Act or an amendment made

25 by this Act, all Tribal-State Compacts approved by the
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1 Secretary of the Interior, and procedures for governance

2 in lieu of Compacts promulgated by the Secretary, under

3 the Indian Gaming Regulatory Act as in effect on the date

4 before the date of enactment of this Act, shall continue

5 to be fully operative and binding on the parties and shall

6 not be subject to revision unless agreed to by the parties.

7 (b) PENDING NEGOTIATIONS OF TRIBAL-STATE

8 COMPACTS.—Any tribe that requested a State to negotiate

9 a Tribal-State Compact prior to the enactment of this Act

10 and has not completed that process may request the Sec11 retary to enter into a Compact as specified under section

12 11(d)(3)(A) of the Indian Gaming Regulatory Act, as pro13 vided by the amendments made by this Act.

14 (c) CLASS III GAMING UNDER CERTAIN DEPART15 MENT OF THE INTERIOR REGULATIONS.—Notwithstand16 ing any provision of the amendments made by this Act,

17 tribes operating class III gaming pursuant to regulations

18 promulgated by the Department of the Interior and in ef19 fect on or before the date of enactment of this Act shall

20 be entitled to conduct class III gaming activities without

21 the approval of a Compact, consistent with such regula22 tions.

23 (d) DEFINITION.—For the purposes of this section,

24 the term ‘‘Tribal-State Compact’’ has the same meaning

25 given such term in the Indian Gaming Regulatory Act, as
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1 such Act was in effect on the date before the date of enact2 ment of this Act.

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