I

104TH CONGRESS

1ST SESSION H. R. 1512

To amend the Indian Gaming Regulatory Act to bring more balance into

the negotiation of Tribal-State compacts, to require an individual participating in class II or class III Indian gaming to be physically present

at the authorized gaming activity, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 7, 1995

Mr. SOLOMON (for himself, Mr. TORRICELLI, Mr. LOBIONDO, Mr. MARTINI,

Mr. ROEMER, Mr. UPTON, and Mrs. VUCANOVICH) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committee on the Judiciary, for a period to be subsequently

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Indian Gaming Regulatory Act to bring more

balance into the negotiation of Tribal-State compacts,

to require an individual participating in class II or class

III Indian gaming to be physically present at the authorized gaming activity, 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; TABLE OF CONTENTS.

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

5 ‘‘Fair Indian Gaming Act’’.
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1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Compact negotiation and approval.

Sec. 3. Gaming on after-acquired lands.

Sec. 4. Physical presence required to participate in class II and class III gaming on Indian lands.

Sec. 5. Indian gaming restricted.

Sec. 6. Definitions of class III gaming and commercial.

Sec. 7. Moratorium on new class III gaming.

Sec. 8. Regulation of Indian gaming pursuant to a State Constitution.

Sec. 9. National Indian Gaming Commission.

Sec. 10. Reporting and bookkeeping.

Sec. 11. Background investigations.

Sec. 12. Criminal laws.

Sec. 13. Appropriations and fees.

Sec. 14. Reports.

3 SEC. 2. COMPACT NEGOTIATION AND APPROVAL.

4 (a) BURDEN OF PROOF.—Section 11(d)(7)(B)(ii) of

5 the Indian Gaming Regulatory Act (25 U.S.C.

6 2710(d)(7)(B)(ii)) is amended by striking ‘‘burden of

7 proof shall be upon the State to prove that the State has

8 negotiated’’ and inserting ‘‘burden of proof shall be upon

9 the Indian tribe to prove that the State has failed to nego10 tiate’’.

11 (b) EVIDENCE OF GOOD FAITH.—Section

12 11(d)(7)(B)(iii) of the Indian Gaming Regulatory Act (25

13 U.S.C. 2710(d)(7)(B)(iii)) is amended—

14 (1) in subclause (I), by striking ‘‘, and’’ at the

15 end and inserting a semicolon;

16 (2) in subclause (II), by striking the period and

17 inserting ‘‘; and’’; and

18 (3) by adding at the end the following:
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1 ‘‘(III) except as provided in clause (ii), shall not

2 consider as evidence that the State has not nego3 tiated in good faith a demand by the State that the

4 gaming activities contemplated by the compact be

5 conducted on the same basis as gaming activities

6 which may be conducted by any other person or en7 tity under the terms of relevant State law.’’.

8 (c) APPROVAL BY STATE LEGISLATURE AND GOV9 ERNOR.—Section 11(d)(3)(B) of the Indian Gaming Reg10 ulatory Act (25 U.S.C. 2710(d)(3)(B)) is amended by

11 striking ‘‘only when’’ and inserting ‘‘only after such com12 pact is approved by the legislature and the Governor of

13 the State and’’.

14 SEC. 3. GAMING ON AFTER-ACQUIRED LANDS.

15 (a) CONSULTATION; APPROVAL BY STATE LEGISLA16 TURE.—Subparagraph (A) of section 20(b)(1) of the In17 dian Gaming Regulatory Act (25 U.S.C. 2719(b)(1)) is

18 amended to read as follows:

19 ‘‘(A) the Governor and the legislature of the

20 State in which the gaming is to be conducted (after

21 consultation with appropriate State and local offi22 cials and officials of the Indian tribe, other nearby

23 Indian tribes, and communities across State borders

24 that would be directly affected by gaming conducted

25 on such lands) determines that a gaming establish-
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1 ment on newly acquired lands would be in the best

2 interest of the Indian tribe and its members and

3 would not be detrimental to the surrounding commu4 nities (including communities across State borders

5 that would be directly affected by gaming conducted

6 on such lands), but only if the Secretary concurs

7 with the determination of the Governor and the leg8 islature;’’.

9 (b) NEWLY ACKNOWLEDGED OR RESTORED

10 TRIBES.—Section 20(b)(1) of the Indian Gaming Regu11 latory Act (25 U.S.C. 2719(b)(1)) is amended—

12 (1) in subparagraph (B)—

13 (A) by inserting ‘‘after the date of the en14 actment of the Fair Indian Gaming Act’’ after

15 ‘‘trust’’ in the matter preceding clause (i); and

16 (B) by striking out the period at the end

17 thereof and inserting ‘‘; or’’; and

18 (2) by adding at the end the following:

19 ‘‘(C) an Act of Congress enacted after the date

20 of the enactment of this subparagraph, concurred in

21 by the Governor and the legislature of the State in

22 which the gaming activity is to be conducted, au23 thorizes such gaming to be conducted on lands—

24 ‘‘(i) taken into trust as part of the initial

25 reservation of an Indian tribe acknowledged by
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1 the Secretary under the Federal acknowledg2 ment process, or

3 ‘‘(ii) restored for an Indian tribe that is re4 stored to Federal recognition.’’.

5 SEC. 4. PHYSICAL PRESENCE REQUIRED TO PARTICIPATE

6 IN CLASS II AND CLASS III GAMING ON IN7 DIAN LANDS.

8 Section 11 of the Indian Gaming Regulatory Act (25

9 U.S.C. 2710) is amended by adding at the end the follow10 ing new subsection:

11 ‘‘(f) An individual may only participate in class II

12 gaming on Indian lands authorized pursuant to subsection

13 (b) and class III gaming on Indian lands authorized pur14 suant to subsection (d) by being physically present at the

15 gaming activity on the lands with respect to which the

16 gaming is authorized.’’.

17 SEC. 5. INDIAN GAMING RESTRICTED.

18 (a) REGULATION OF CLASS II GAMING.—Section

19 11(b) of the Indian Gaming Regulatory Act (25 U.S.C.

20 2710(b)) is amended—

21 (1) in paragraph (1)—

22 (A) in subparagraph (A)—

23 (i) by inserting ‘‘(i)’’ after ‘‘(A)’’;

24 (ii) in clause (i), as designated by

25 clause (i) of this subparagraph, by striking
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1 ‘‘any purpose’’ and all that follows through

2 ‘‘law), and’’ and inserting ‘‘a commercial

3 purpose by any person, organization or en4 tity, or’’; and

5 (iii) by inserting after clause (i), as

6 designated by clause (i) of this subpara7 graph, the following:

8 ‘‘(ii) such Indian gaming is for charitable pur9 poses and is located within a State that permits

10 such gaming for charitable purposes by a person,

11 organization or entity,’’;

12 (B) by redesignating subparagraph (B) as

13 subparagraph (D) and inserting after subpara14 graph (A) the following new subparagraphs:

15 ‘‘(B) such gaming is not otherwise specifically

16 prohibited on Indian lands by Federal law,

17 ‘‘(C) permissible gaming is limited to the spe18 cific forms of, and methods of play for, gaming ac19 tivities expressly authorized by the law of the State,

20 and’’; and

21 (2) in paragraph (2)—

22 (A) in subparagraph (E), by striking

23 ‘‘and’’ at the end;

24 (B) in subparagraph (F), by striking the

25 period and inserting ‘‘; and’’; and
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1 (C) by adding at the end the following:

2 ‘‘(G) all gaming activities shall be conducted in

3 conformity with those laws and regulations (if any)

4 of the State regarding specific games allowed and

5 methods of play, including, but not limited to, peri6 ods of operation, limitation on wagers, pot sizes, and

7 losses.’’.

8 (b) REGULATION OF CLASS III GAMING.—Section

9 11(d)(1) of the Indian Gaming Regulatory Act (25 U.S.C.

10 2710(d)(1)) is amended—

11 (1) by amending subparagraph (B) to read as

12 follows:

13 ‘‘(B) located in a State that permits such gam14 ing by any person, organization, or entity which con15 ducts the authorized gaming activity as part of a

16 commercial enterprise; except that a Tribal-State

17 compact may permit any other class III gaming ex18 pressly authorized by a State;’’; and

19 (2) by redesignating subparagraph (C) as sub20 paragraph (D) and inserting after subparagraph (B)

21 the following new subparagraph:

22 ‘‘(C) limited to the specific forms of, and meth23 ods of play for, gaming activities expressly author24 ized by the law of the State; and’’.
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1 SEC. 6. DEFINITIONS OF CLASS III GAMING AND COMMER2 CIAL.

3 (a) CLASS III GAMING.—Section 4 of the Indian

4 Gaming Regulatory Act (25 U.S.C. 2703) is amended—

5 (1) in paragraph (7)(A)(i), by inserting after

6 ‘‘therewith)’’ the following: ‘‘except video bingo’’;

7 and

8 (2) in paragraph (8), by inserting before the pe9 riod at the end the following: ‘‘, including, but not

10 limited to, gambling devices (as such term is defined

11 in subsection (a) of the first section of the Act of

12 January 2, 1951 (Chapter 1194; 64 Stat. 1134)),

13 electronic or electromechanical facsimiles of any

14 game of chance, and any and all forms of electronic

15 video gaming or devices, such as video bingo, video

16 pull-tabs, video keno, and video blackjack’’.

17 (b) COMMERCIAL.—Section 4 of the Indian Gaming

18 Regulatory Act (25 U.S.C. 2703) is amended by adding

19 at the end the following:

20 ‘‘(11) The term ‘commercial’ means a private,

21 for-profit business and, in the case of class III gam22 ing, includes a State-run lottery.’’.

23 SEC. 7. MORATORIUM ON NEW CLASS III GAMING.

24 (a) IN GENERAL.—All class III gaming enterprises

25 on Indian lands that are not specifically authorized pursu26 ant to a Tribal-State compact, or procedures in lieu of
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1 a compact, under the Indian Gaming Regulatory Act (25

2 U.S.C. 2701 et seq.) as of the date of enactment of this

3 Act are prohibited for the two-year period beginning on

4 the date of enactment of this Act unless specifically ap5 proved by a State during the period.

6 (b) DEFINITIONS.—For the purposes of this sec7 tion—

8 (1) the term ‘‘class III gaming’’ has the mean9 ing given such term by the Indian Gaming Regu10 latory Act (25 U.S.C. 2701 et seq.), as amended by

11 this Act; and

12 (2) the term ‘‘United States’’ includes the Dis13 trict of Columbia and the territories and possessions

14 of the United States.

15 SEC. 8. REGULATION OF INDIAN GAMING PURSUANT TO A

16 STATE CONSTITUTION.

17 (a) IN GENERAL.—Section 11 of the Act (25 U.S.C.

18 2710), as amended by section 4 of this Act, is further

19 amended by adding at the end the following:

20 ‘‘(g) Notwithstanding any other provision of this Act,

21 in the case of class II gaming or class III gaming on In22 dian lands located within a State in which the Constitution

23 of that State specifically authorizes gambling, such class

24 II or III gaming, as the case may be, on such Indian lands

25 may only be conducted in the manner, to the extent, and
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1 subject to the same terms and conditions, as authorized

2 by the Constitution and laws of that State, and the Indian

3 tribe desiring to conduct such class II or III gaming shall

4 be subject to all laws of the State relating to such gam5 ing.’’.

6 (b) EFFECTIVE DATE.—The amendment made by

7 subsection (a) shall apply with respect to any class II or

8 III gaming (as defined in section 4 of the Indian Gaming

9 Regulatory Act (25 U.S.C. 2703)) on Indian lands con10 ducted after the date of the enactment of this Act.

11 SEC. 9. NATIONAL INDIAN GAMING COMMISSION.

12 (a) ADDITIONAL MEMBERS.—Paragraph (1) of sec13 tion 5(b) of the Indian Gaming Regulatory Act (25 U.S.C.

14 2704(b)) is amended to read as follows:

15 ‘‘(1) The Commission shall be composed of five full16 time members who shall be appointed by the President,

17 with the advice and consent of the Senate, as follows:

18 ‘‘(A) a Chairman;

19 ‘‘(B) two associate members from among indi20 viduals nominated by Indian tribes; and

21 ‘‘(C) two associate members from among indi22 viduals nominated by the Governors of the States.’’.

23 (b) COMPOSITION.—Section 5(b)(3) of the Indian

24 Gaming Regulatory Act (25 U.S.C. 2704(b)(3)) is amend-
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1 ed in the first sentence by striking ‘‘two’’ and inserting

2 ‘‘three’’.

3 (c) QUORUM.—Section 5(d) of the Indian Gaming

4 Regulatory Act (25 U.S.C. 2704(d)) is amended by strik5 ing ‘‘Two’’ and inserting ‘‘Three’’.

6 (d) POWERS.—Section 7(a) of the Indian Gaming

7 Regulatory Act (25 U.S.C. 2706(a)) is amended by strik8 ing ‘‘2 members’’ each place it appears and inserting ‘‘3

9 members’’.

10 (e) CIVIL PENALTIES.—Section 14(b)(2) of the In11 dian Gaming Regulatory Act (25 U.S.C. 2713(b)(2)) is

12 amended by striking out ‘‘two of its members’’ and insert13 ing in lieu thereof ‘‘three of its members’’.

14 (f) SUBPOENA.—Section 16(a) of the Indian Gaming

15 Regulatory Act (25 U.S.C. 2715(a)) is amended by strik16 ing ‘‘two members’’.

17 (g) COMMISSION FUNDING.—Section 18(a)(3) of the

18 Indian Gaming Regulatory Act (25 U.S.C. 2717(a)(3)) is

19 amended by striking ‘‘two of its members’’ and inserting

20 ‘‘three of its members’’.

21 (h) EFFECTIVE DATE; TRANSITION RULES.—(1) Ex22 cept as required by paragraph (2), the amendments made

23 by this section shall take effect at the end of the 90-day

24 period beginning on the date of enactment of this Act and

25 shall apply with respect to any action taken by the Na-
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1 tional Indian Gaming Commission after the end of such

2 period.

3 (2) Not later than 90 days after the date of enact4 ment of this Act, the President shall make the initial ap5 pointments of the associate members of the National In6 dian Gaming Commission, as required by the amendments

7 made by subsection (a) of this section, in accordance with

8 the Indian Gaming Regulatory Act, as amended by this

9 Act.

10 SEC. 10. REPORTING AND BOOKKEEPING.

11 The Indian Gaming Regulatory Act (25 U.S.C. 2701

12 et seq.) is amended by inserting after section 21 the fol13 lowing new section:

14 ‘‘REPORTING AND BOOKKEEPING

15 ‘‘SEC. 21A. (a) Within 90 days after the date of the

16 enactment of this section, the Secretary of the Treasury

17 shall issue such regulations as may be necessary to require

18 gaming establishments authorized pursuant to this Act to

19 be subject to such reporting and recordkeeping require20 ments as those which are applicable to a casino or gam21 bling casino referred to in section 103.11(i)(7)(i) of part

22 103 of title 31 of the Code of Federal Regulations in order

23 to ensure a high degree of usefulness in criminal, tax, and

24 regulatory matters.

25 ‘‘(b) In the administration of this Act, an authoriza26 tion provided by a State for one form of class III gaming
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1 shall not be construed as an authorization for any other

2 form of class III gaming for purposes of negotiations be3 tween a State and a tribe.

4 ‘‘(c) In the administration of this Act, the United

5 States district courts shall have sole jurisdiction over con6 tract disputes between tribes and contract operators of In7 dian gaming establishments.’’.

8 SEC. 11. BACKGROUND INVESTIGATIONS.

9 (a) ROLE OF ATTORNEY GENERAL.—The Indian

10 Gaming Regulatory Act (25 U.S.C. 2701 et seq.), as

11 amended by section 9 of this Act, is amended by inserting

12 after section 21A the following new section:

13 ‘‘BACKGROUND INVESTIGATIONS

14 ‘‘SEC. 21B. (a) The Attorney General shall conduct

15 such background investigations as may be necessary—

16 ‘‘(1) to determine the suitability of each individ17 ual, person or entity (including individuals compris18 ing such entity, serving on the board of directors of

19 a corporation, and stockholders of a corporation) de20 scribed in section 12(a)(1)(A) to be involved in class

21 III gaming activities under this Act;

22 ‘‘(2) to determine the suitability of any finan23 cial backer, investor, mortgagee, lender, security

24 holder, or other such person or entity to be involved

25 in class III gaming activities under this Act;
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1 ‘‘(3) to determine the suitability of any primary

2 management official, or key employee of a class III

3 gaming activity under this Act, or any other person

4 or entity engaged in class III gaming activities, or

5 the accounting of class III gaming assets, under this

6 Act, to continue to engage in such activities;

7 ‘‘(4) to assist the Commission in carrying out

8 sections 7(b) and 12; and

9 ‘‘(5) with respect to implementing class III

10 gaming activities pursuant to this Act.

11 ‘‘(b) For the purposes of this Act, a background in12 vestigation shall include (but not be limited to)—

13 ‘‘(1) criminal history, especially criminal history

14 with respect to organized crime;

15 ‘‘(2) taxpayer return and return information;

16 ‘‘(3) immigration information;

17 ‘‘(4) records, held by any entity of the Federal

18 Government, which are not described in paragraphs

19 (1), (2), or (3); and

20 ‘‘(5) records held by State entities.

21 ‘‘(c) For the purposes of subsection (b)—

22 ‘‘(1) the Attorney General is authorized to uti23 lize the system devised under section 242(a)(3)(A)(i)

24 of the Immigration and Nationality Act to determine

25 if an individual is an alien; and
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1 ‘‘(2) returns and return information (as such

2 terms are defined in section 6103(b) of the Internal

3 Revenue Code of 1986) shall be open to inspection

4 by, or disclosure to, the Attorney General and other

5 officers and employees of the Department of Justice

6 and the Commission, subject to the procedures and

7 recordkeeping required under subsection (p) of such

8 section 6103(b).

9 ‘‘(d) Upon application by any State to the Attorney

10 General that such State is willing and able to conduct any

11 or all background investigations required by this section

12 regarding class III gaming, the Attorney General is au13 thorized, if the Attorney General determines that such

14 State is willing and able to conduct such investigations,

15 to permit that State to conduct such investigations as are

16 authorized by the Attorney General.

17 ‘‘(e) This section applies to all gaming under this Act,

18 whether approved before or after the date of enactment

19 of this section.’’.

20 (b) CONFORMING AMENDMENTS.—(1) Paragraph (3)

21 of section 7(b) of such Act (25 U.S.C. 2706(b)) is amend22 ed to read as follows:

23 ‘‘(3) in consultation with the Attorney General,

24 shall conduct or cause to be conducted such back25 ground investigations as may be necessary to carry
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1 out the duties of the Commission under this Act

2 with respect to class II gaming;’’.

3 (2) Section 12 of such Act (25 U.S.C. 2711) is

4 amended—

5 (A) in subsection (a)(1), by striking ‘‘the Chair6 man shall’’ and inserting ‘‘the Chairman, in con7 sultation with the Attorney General pursuant to sec8 tion 21B, shall’’; and

9 (B) in subsection (e), by striking ‘‘the Chair10 man determines’’ and inserting ‘‘the Chairman, in

11 consultation with the Attorney General pursuant to

12 section 21B, determines’’.

13 SEC. 12. CRIMINAL LAWS.

14 Section 1166 of title 18, United States Code, is

15 amended to read as follows:

16 ‘‘§ 1166. Gambling in Indian country

17 ‘‘(a) Subject to subsection (c), for purposes of Fed18 eral law, all State laws pertaining to the licensing, regula19 tion, or prohibition of gambling, including (but not limited

20 to) criminal sanctions applicable thereto, shall apply in In21 dian country in the State in the same manner and to the

22 same extent as such laws apply elsewhere in the State.

23 ‘‘(b) Whoever in Indian country is guilty of any act

24 or omission involving gambling, whether or not conducted

25 or sanctioned by an Indian tribe, which, although not
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1 made punishable by any enactment of Congress, would be

2 punishable if committed or omitted within the jurisdiction

3 of the State in which the act or omission occurred under

4 the laws governing the licensing, regulation, or prohibition

5 of gambling in force at the time of such act or omission

6 shall be guilty of a like offense and subject to a like

7 punishment.

8 ‘‘(c) For the purpose of this section, the term ‘gam9 bling’ does not include—

10 ‘‘(1) class I gaming or class II gaming regu11 lated by the Indian Gaming Regulatory Act, or

12 ‘‘(2) class III gaming conducted under a Tribal13 State compact approved or considered to be ap14 proved by the Secretary of the Interior under section

15 11(d)(8) of the Indian Gaming Regulatory Act that

16 is in effect.

17 ‘‘(d) The United States shall have exclusive jurisdic18 tion over criminal prosecutions of violations of State gam19 bling laws that are made applicable under this section to

20 Indian country, unless—

21 ‘‘(1) an Indian tribe pursuant to a Tribal-State

22 compact approved or considered to be approved by

23 the Secretary of the Interior under section 11(d)(8)

24 of the Indian Gaming Regulatory Act, or under any

25 other provision of Federal law, has consented to the
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1 transfer to the State of criminal jurisdiction with re2 spect to gambling on the lands of the Indian tribe,

3 or

4 ‘‘(2) authority has been granted to a State to

5 enforce the criminal laws of the State on Indian

6 lands within the State pursuant to section 1162 of

7 this title, or any other provision of Federal law

8 which authorizes exercise of such criminal jurisdic9 tion by a State, which authority shall be concurrent

10 with the United States with respect to violations also

11 made violations of Federal law under subsection (a)

12 of this section.’’.

13 SEC. 13. APPROPRIATIONS AND FEES.

14 (a) REPEAL OF AUTHORIZATION OF APPROPRIA15 TIONS.—Section 19 of the Indian Gaming Regulatory Act

16 (25 U.S.C. 2718) is amended to read as follows:

17 ‘‘PROHIBITION ON USE OF APPROPRIATED FUNDS

18 ‘‘SEC. 19. Beginning with the first fiscal year begin19 ning after the date of the enactment of this section, appro20 priated funds may not be used for the operation of the

21 Commission to carry out its functions under this Act.’’.

22 (b) INCREASE IN ALLOWABLE FEES.—Section

23 18(a)(2)(B) of such Act (25 U.S.C. 2717(a)(2)(B)) is

24 amended by striking ‘‘$1,500,000’’ and inserting

25 ‘‘$3,750,000’’.
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1 SEC. 14. REPORTS.

2 (a) CRIMINAL ACTIVITY RELATING TO INDIAN-SPON3 SORED GAMING ESTABLISHMENTS.—Not later than six

4 months after the date of the enactment of this Act, the

5 Attorney General of the United States, the Secretary of

6 the Treasury, and the Secretary of the Interior, jointly,

7 shall conduct a study and submit a report to the Congress

8 on criminal activity, including the pressure of organized

9 crime, on Indian-sponsored gaming establishments.

10 (b) MOST EFFECTIVE GAMING REGULATIONS.—Not

11 later than one year after the date of enactment of this

12 Act, the Attorney General shall conduct a study of the

13 most effective gaming regulations both on and off Indian

14 reservations and prepare and disseminate to the public a

15 report to serve as a guide for States and Indian tribes

16 seeking to regulate Indian gaming. The report shall in17 clude model regulations to serve as a guide for regulations

18 under a Tribal-State compact under the Indian Gaming

19 Regulatory Act (25 U.S.C. 2701 et seq.).

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