II

106TH CONGRESS

1ST SESSION S. 985

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

IN THE SENATE OF THE UNITED STATES

MAY 6, 1999

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

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.

4 This Act may be cited as ‘‘The Intergovernmental

5 Gaming Agreement Act of 1999’’.

6 SEC. 2. AMENDMENTS TO THE INDIAN GAMING REGU7 LATORY ACT.

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

9 et seq.) is amended by striking section 11, subsection (d)

10 and inserting the following:
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1 ‘‘(d)(1) Class III gaming activities shall be lawful on

2 Indian lands only if those activities are—

3 ‘‘(A) authorized by an ordinance or resolution

4 that—

5 ‘‘(i) is adopted by the governing body of

6 the Indian tribe having jurisdiction over such

7 lands,

8 ‘‘(ii) meets the requirements of subsection

9 (b), and

10 ‘‘(iii) is approved by the Chairman,

11 ‘‘(B) located in a State that permits such gam12 ing for any purpose by any person, organization, or

13 entity; and

14 ‘‘(C) authorized by a Compact that is approved

15 pursuant to tribal law by the governing body of the

16 Indian tribe having jurisdiction over those lands;

17 ‘‘(D) conducted in conformance with a compact

18 that—

19 ‘‘(i) is in effect; and

20 ‘‘(ii) is—

21 ‘‘(I) entered into by an Indian tribe

22 and a State and approved by the Secretary

23 under paragraph (3); or

24 ‘‘(II) issued by the Secretary under

25 paragraph (3).
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1 ‘‘(2)(A) If any Indian tribe proposes to engage in,

2 or to authorize any person or entity to engage in, a class

3 III gaming activity on Indian lands of the Indian tribe,

4 the governing body shall adopt and submit to the chair5 man an ordinance or resolution that meets the require6 ments of subsection (b).

7 ‘‘(B) The Chairman shall approve any ordinance or

8 resolution described in subparagraph (A), unless the

9 Chairman specifically determines that—

10 ‘‘(i) the ordinance or resolution was not adopted

11 in compliance with the governing documents of the

12 Indian tribe, or

13 ‘‘(ii) the tribal governing body was significantly

14 and unduly influenced in the adoption of such ordi15 nance or resolution by any person identified in sec16 tion 12(e)(1)(D).

17 ‘‘(C) Upon approval of such an ordinance or resolu18 tion, the Chairman shall publish in the Federal Register

19 such ordinance or resolution and the order of approval.

20 ‘‘(3) COMPACT NEGOTIATIONS; APPROVAL.—

21 ‘‘(A) IN GENERAL.—

22 ‘‘(i) COMPACT NEGOTIATIONS.—Any tribe

23 having jurisdiction over lands upon which a

24 class III gaming activity is to be conducted may

25 request the State in which those lands are lo-
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1 cated to enter into negotiations for the purpose

2 of entering into a compact with that State gov3 erning conduct of Class III gaming activities.

4 ‘‘(ii) REQUIREMENTS FOR REQUEST FOR

5 NEGOTIATIONS.—A request for negotiations

6 under clause (i) shall be in writing and shall

7 specify each gaming activity the Indian tribe

8 proposes for inclusion in the compact. Not later

9 than 30 days after receipt of the written re10 quest, the State shall respond to the Indian

11 tribe.

12 ‘‘(iii) COMMENCEMENT OF COMPACT NE13 GOTIATIONS.—Compact negotiations conducted

14 under this paragraph shall commence not later

15 than 30 days after the date on which a re16 sponse by a State is due to the Indian tribe,

17 and shall be completed not later than 120 days

18 after the initiation of compact negotiations, un19 less the State and the Indian tribe agree in

20 writing to a different period of time for the

21 completion of compact negotiations.

22 ‘‘(B) NEGOTIATIONS.—

23 ‘‘(i) IN GENERAL.—The Secretary shall,

24 upon request of an Indian tribe described in

25 subparagraph (A)(i) that has not reached an
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1 agreement with a State concerning a compact

2 referred to in that subparagraph (or with re3 spect to an Indian tribe described in clause

4 (ii)(I)(bb) a compact) during the applicable pe5 riod under clause (ii) of this subparagraph, ini6 tiate a mediation process to—

7 ‘‘(I) conclude a compact referred to in

8 subparagraph (A)(i); or

9 ‘‘(II) if necessary, provide for the

10 issuance of procedures by the Secretary to

11 govern the conduct of the gaming referred

12 to in that subparagraph.

13 ‘‘(ii) APPLICABLE PERIOD.—

14 ‘‘(I) IN GENERAL.—Subject to sub15 clause (II), the applicable period described

16 in this paragraph is—

17 ‘‘(aa) in the case of an Indian

18 tribe that makes a request for com19 pact negotiations under subparagraph

20 (A), the 180-day period beginning on

21 the date on which that Indian tribe

22 makes the request; and

23 ‘‘(bb) in the case of an Indian

24 tribe that makes a request to renew a

25 compact to govern class III gaming
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1 activity on Indian lands of that Indian

2 tribe within the State that the Indian

3 tribe entered into prior to the date of

4 enactment of the Indian Gaming Reg5 ulatory Act of 1988, during the 60-

6 day period beginning on the date of

7 that request.

8 ‘‘(II) EXTENSION.—An Indian tribe

9 and a State may agree to extend an appli10 cable period under this paragraph beyond

11 the applicable termination date specified in

12 item (aa) or (bb) of subclause (I).

13 ‘‘(iii) MEDIATION.—

14 ‘‘(I) IN GENERAL.—The Secretary

15 shall initiate mediation to conclude a com16 pact governing the conduct of class III

17 gaming activities on Indian lands upon a

18 clear showing by an Indian tribe that,

19 within the applicable period specified in

20 clause (ii), a state has failed—

21 ‘‘(aa) to respond to a request by

22 an Indian tribe for negotiations under

23 this subparagraph; or

24 ‘‘(bb) to negotiate in good faith.
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1 ‘‘(II) EFFECT OF DECLINING NEGO2 TIATIONS.—The Secretary shall initiate

3 mediation within 10 days after a State de4 clines to enter into negotiations under this

5 subparagraph, without regard to whether

6 the otherwise applicable period specified in

7 clause (ii) has expired.

8 ‘‘(III) COPY OF REQUEST.—An Indian

9 tribe that requests mediation under this

10 clause shall provide the State that is the

11 subject of the mediation request a copy of

12 the mediation request submitted to the

13 Secretary within 5 days of receipt of the

14 request.

15 ‘‘(IV) PANEL.—The Secretary, in con16 sultation with the Indian tribes and States,

17 shall establish a list of independent medi18 ators, that the Secretary, in consultation

19 with the Indian tribes and the States, shall

20 periodically update. All mediators placed

21 upon the list shall be certified by the

22 American Arbitration Association as quali23 fied to conduct arbitration in accordance

24 with the American Arbitration Association

25 rules and procedures.
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1 ‘‘(V) NOTIFICATION BY STATE.—Not

2 later than 10 days after an Indian tribe

3 makes a request to the Secretary for medi4 ation under subclause (I), the State that is

5 the subject of the mediation request shall

6 notify the Secretary whether the State

7 elects to participate in the mediation proc8 ess within 5 days of receipt of the request.

9 If the State elects to participate in the me10 diation, the mediation shall be conducted

11 in accordance with subclause (IV). If the

12 State declines to participate in the medi13 ation process, the Secretary shall issue

14 procedures pursuant to clause (iv).

15 ‘‘(VI) MEDIATION PROCESS.—

16 ‘‘(aa) IN GENERAL.—Not later

17 than 20 days after a State elects

18 under subclause (V) to participate in

19 a mediation, the Secretary shall sub20 mit to the Indian tribe and the State

21 the names of 3 mediators randomly

22 selected by the Secretary from the list

23 of mediators established under sub24 clause (IV).
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1 ‘‘(bb) SELECTION OF MEDI2 ATOR.—Not later than 10 days after

3 the Secretary submits the mediators

4 referred to in item (aa), the Indian

5 tribe and the State may each peremp6 torily remove one mediator from the

7 mediators submitted. If either the In8 dian tribe or the State declines to re9 move a mediator, the Secretary shall

10 randomly remove names until only one

11 mediator remains. The remaining me12 diator shall conduct the mediation.

13 ‘‘(cc) INITIAL PERIOD OF MEDI14 ATION.—The mediator shall, during

15 the 60-day period beginning on the

16 date on which the mediator is selected

17 under item (bb) (or a longer period

18 upon the written agreement of the

19 parties to the mediation for an exten20 sion of the period) attempt to achieve

21 a compact.

22 ‘‘(dd) LAST BEST OFFER.—If by

23 the termination of the period specified

24 in item (cc), no agreement for con25 cluding a compact is achieved by the
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1 parties to the mediation, each such

2 party may, not later than 10 days

3 after that date, submit to the medi4 ator an offer that represents the best

5 offer that the party intends to make

6 for achieving an agreement for con7 cluding a compact (referred to herein8 after as a ‘last-best-offer’). The medi9 ator shall review a last-best-offer re10 ceived pursuant to this item not later

11 than 30 days after the date of submis12 sion of the offer.

13 ‘‘(ee) REPORT BY MEDIATOR.—

14 Not later than the date specified for

15 the completion of a review of a last16 best-offer under item (dd), or in any

17 case in which either party in a medi18 ation fails to make such an offer, the

19 date that is 10 days after the termi20 nation of the initial period of medi21 ation under item (cc), the mediator

22 shall prepare and submit to the Sec23 retary a report that includes the con24 tentions of the parties, the conclusions

25 of the mediator concerning the per-
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1 missible scope of gaming on the In2 dian lands involved, and recommenda3 tions for the operation and regulation

4 of gaming on the Indian lands in ac5 cordance with this Act.

6 ‘‘(ff) FINAL DETERMINATIONS.—

7 Not later than 60 days after receiving

8 a report from a mediator under item

9 (ee), the Secretary shall make a final

10 determination concerning the oper11 ation and regulation of class III gam12 ing that is the subject of the medi13 ation.

14 ‘‘(VII) PROCEDURES.—Subject to

15 clause (iii)(V), on the basis of a final de16 termination described in clause

17 (iii)(VI)(ff), the Secretary shall issue pro18 cedures for the operation and regulation of

19 the class III gaming described in that item

20 by the date that is 180 days after the date

21 specified in clause (iii)(V) or upon the de22 termination described in clause

23 (iii)(VI)(ff).
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1 ‘‘(VIII) JURISDICATION OF THE

2 UNITED STATES DISTRICT COURT FOR THE

3 DISTRICT OF COLUMBIA.—

4 ‘‘(aa) The United States District

5 Court for the District of Columbia

6 shall have jurisdiction over any action

7 initiated by the Secretary, the Com8 mission, a State, or an Indian tribe to

9 challenge the Secretary’s decision to

10 complete a compact or initiate medi11 ation or to challenge specific provi12 sions of procedures issued by the Sec13 retary for the operation of class III

14 gaming under clause (iii)(V) or

15 (iii)(VII).

16 ‘‘(bb) The Secretary’s decision to

17 complete a compact or to initiate me18 diation pursuant to clause (iii)(V) or

19 (iii)(VII) shall be immediately review20 able in the United States District

21 Court.

22 ‘‘(cc) Upon receipt of a petition

23 to review a decision of the Secretary

24 to complete a compact or initiate me25 diation pursuant to clause (iii)(V) or
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1 (iii)(VII), the United States District

2 Court shall appoint a three judge

3 panel to hear the proceedings and

4 render a decision regarding whether

5 the determination of the Secretary

6 was valid as a matter of law.

7 ‘‘(IX) PROHIBITION.—No compact ne8 gotiated, or procedures issued, under this

9 subparagraph shall require that a State

10 undertake any regulation of gaming on In11 dian lands unless—

12 ‘‘(aa) the State affirmatively con13 sents to regulate that gaming; and

14 ‘‘(bb) applicable Sate laws permit

15 that regulatory function.

16 ‘‘(C) MANDATORY DISAPPROVAL.—Notwith17 standing any other provision of this Act, the Sec18 retary may not approve a compact if the compact re19 quires State regulation of gaming absent the consent

20 of the State or the Indian tribe.

21 ‘‘(D) EFFECTIVE DATE OF COMPACT OR PROCE22 DURES.—Any compact negotiated, or procedures

23 issued, under this subsection shall become effective

24 upon the publication of the compact or procedures in

25 the Federal Register by the Secretary.
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1 ‘‘(E) EFFECT OF PUBLICATION OF COMPACT.—

2 Except for an appeal conducted under subchapter II

3 of chapter 5 of title 5, United States Code, by an

4 Indian tribe or a State associated with the compact,

5 the publication of a compact pursuant to subpara6 graph (B) shall, for the purposes of this Act, be con7 clusive evidence that the class III gaming subject to

8 the compact is an activity subject to negotiations

9 under the laws of the State where the gaming is to

10 be conducted, in any matter under consideration by

11 the Commission or a Federal court.

12 ‘‘(F) DUTIES OF COMMISSION.—Consistent with

13 minimum standards and as otherwise authorized by

14 this Act, the Commission shall monitor and, if au15 thorized by those standards and this Act, regulate

16 and license class III gaming with respect to and in

17 a manner consistent with any compact that is ap18 proved by the Secretary under this subsection and

19 published in the Federal Register.

20 ‘‘(4) PROVISIONS OF COMPACTS.—

21 ‘‘(A) IN GENERAL.—A compact negotiated

22 under this subsection may only include provisions re23 lating to—

24 ‘‘(i) the application of the criminal and

25 civil laws (including regulations) of the Indian
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1 tribe or the State that are directly related to,

2 and necessary for, the licensing and regulation

3 of that gaming activity in a manner consistent

4 with the requirements of the standards promul5 gated by the Commission.

6 ‘‘(ii) the allocation of criminal and civil ju7 risdiction between the State and the Indian

8 tribe necessary for the enforcement of those

9 laws (including regulations);

10 ‘‘(iii) the assessment by the state of the

11 costs associated with those activities in such

12 amounts as are necessary to defray the costs of

13 regulating that activity;

14 ‘‘(iv) taxation by the Indian tribe of that

15 activity in amounts comparable to amounts as16 sessed by the State for comparable activities;

17 ‘‘(v) remedies for breach of compact provi18 sions;

19 ‘‘(vi) standards for the operation of that

20 activity and maintenance of the gaming facility,

21 including licensing, in a manner consistent with

22 the requirements of the standards promulgated

23 by the Commission.

24 ‘‘(vii) any other subject that is directly re25 lated to the operation of gaming activities.
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1 ‘‘(B) STATUTORY CONSTRUCTION WITH RE2 SPECT TO ASSESSMENTS; PROHIBITION.—

3 ‘‘(i) STATUTORY CONSTRUCTION.—Except

4 for any assessments for services agreed to by an

5 Indian tribe in compact negotiations, nothing in

6 this section may construed as conferring upon

7 a State, or any political subdivision thereof, the

8 authority to impose any tax, fee, charge, or

9 other assessment upon an Indian tribe, an In10 dian gaming operation or the value generated

11 by the gaming operation, or any person or enti12 ty authorized by an Indian tribe to engage in

13 class III gaming activity in conformance with

14 this Act.

15 ‘‘(ii) ASSESSMENT BY STATES.—A State

16 may assess the assessments agreed to by an In17 dian tribe referred to in clause (i) in a manner

18 consistent with that clause.

19 ‘‘(5) STATUTORY CONSTRUCTION WITH RESPECT TO

20 CERTAIN RIGHTS OF INDIAN TRIBES.—Nothing in this

21 subsection impairs the right of an Indian tribe to regulate

22 class III gaming on the indian lands of the indian tribe

23 concurrently with a State and the Commission, except to

24 the extent that such regulation is inconsistent with or less

25 stringent than, this Act or any laws (including regula-
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1 tions) made applicable by any compact entered into by the

2 Indian tribe under this subsection that is in effect.

3 ‘‘(6) EXEMPTION.—The provisions of section 2 of the

4 Act of January 2, 1951 (commonly referred to as the

5 ‘Gambling Devices Transportation Act’) (64 Stat. 1134,

6 chapter 1194; 15 U.S.C. 1175) shall not apply to any class

7 II gaming activity or any gaming activity conducted pur8 suant to a compact entered into after the date of enact9 ment of this Act, but in no event shall this paragraph be

10 constructed as invalidating any exemption from the provi11 sions of section 2 of the Act of January 2, 1951 for any

12 compact entered into prior to the date of enactment of

13 this Act.’’.

14 (b) JURISDICTION OF THE UNITED STATES DIS15 TRICT COURT FOR THE DISTRICT OF COLUMBIA.—The

16 United States District Court for the District of Columbia

17 shall have jurisdiction over any action initiated by the Sec18 retary, the Commission, a State, or an Indian tribe to en19 force any provision of a compact entered into under sub20 section (a) or to enjoin a class III gaming activity located

21 on Indian lands and conducted in violation of any compact

22 that is in effect and that was entered into under sub23 section (a).

24 (c) APPROVAL OF COMPACTS.—
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1 (1) IN GENERAL.—The Secretary may approve

2 any compact between an Indian tribe and a State

3 governing the conduct of class III gaming on Indian

4 lands of that indian tribe entered into under sub5 section (a).

6 (2) REASONS FOR DISAPPROVAL BY SEC7 RETARY.—The Secretary may disapprove a compact

8 entered into under subsection (a) only if that com9 pact violates any—

10 (A) provision of this Act or any regulation

11 promulgated by the Commission pursuant to

12 this Act;

13 (B) other provision of Federal law; or

14 (C) trust obligation of the United States to

15 Indians.

16 (3) EFFECT OF FAILURE TO ACT ON COM17 PACT.—If the Secretary fails to approve or dis18 approve a compact entered into under subsection (a)

19 before the date that is 45 days after the date on

20 which the compact is submitted to the Secretary for

21 approval, the compact shall be considered to be ap22 proved by the Secretary, but only to the extent the

23 compact is consistent with the provisions of this Act

24 and the regulations promulgated by the Commission

25 pursuant to this Act.
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1 (4) NOTIFICATION.—The Secretary shall pub2 lish in the Federal Register notice of any compact

3 that is approved, or considered to have been ap4 proved, under this subsection.

5 (d) REVOCATION OF ORDINANCE.—

6 (1) IN GENERAL.—The governing body of an

7 Indian tribe in its sole discretion, may adopt an or8 dinance or resolution revoking any prior ordinance

9 or resolution that authorized class III gaming on the

10 Indian lands of the Indian tribe. That revocation

11 shall render class III gaming illegal on the Indian

12 lands of that Indian tribe.

13 (2) PUBLICATION OF REVOCATION.—An Indian

14 tribe shall submit any revocation ordinance or reso15 lution described in paragraph (1) to the Commis16 sion. The Commission shall publish that ordinance

17 or resolution in the Federal Register. The revocation

18 provided by that ordinance or resolution shall take

19 effect on the date of that publication.

20 (3) CONDITIONAL OPERATION.—Notwith21 standing any other provision of this subsection—

22 (A) any person or entity operating a class

23 III gaming activity pursuant to this Act on the

24 date on which an ordinance or resolution de25 scribe in paragraph (1) that revokes authoriza-
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1 tion for that class III gaming activity is pub2 lished in the Federal Register may, during the

3 1-year period beginning on the date on which

4 that revocation, ordinance, or resolution is pub5 lished under paragraph (2), continue to operate

6 that activity in conformance with an applicable

7 compact entered into under subsection (a) that

8 is in effect; and

9 (B) any civil action that arises before, and

10 any crime that is committed before, the termi11 nation of that 1-year period shall not be af12 fected by that revocation, ordinance, or resolu13 tion.

14 (e) CERTAIN CLASS III GAMING ACTIVITIES.—

15 (1) COMPACTS ENTERED INTO BEFORE THE

16 DATE OF ENACTMENT OF THE INTERGOVERN17 MENTAL GAMING AGREEMENT ACT OF 1999.—Class

18 III gaming activities that are authorized under a

19 compact approved or issued by the Secretary under

20 the authority of this Act prior to the date of enact21 ment of the intergovernmental gaming agreement

22 act of 1999 shall, during such period as the compact

23 is in effect, remain lawful for the purposes of this

24 Act, notwithstanding the Intergovernmental Gaming
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1 Agreement Act of 1999 and the amendments made

2 by that Act or any change in State law.

3 (2) COMPACT ENTERED INTO AFTER THE DATE

4 OF ENACTMENT OF THE INTERGOVERNMENTAL GAM5 ING AGREEMENT ACT OF 1999.—Any compact en6 tered into under subsection (a) after the date speci7 fied in paragraph (1) shall remain lawful for the

8 purposes of the Intergovernmental Gaming Agree9 ment Act of 1999, notwithstanding any change in

10 state law, other than a change in state law that

11 consistutes a change in the public policy of the State

12 with respect to permitting or prohibiting class III

13 gaming in the State.

Æ