II 

112TH CONGRESS 

1ST SESSION S. 771 

To amend the Indian Gaming Regulatory Act to modify a provision relating 

to gaming on land acquired after October 17, 1988. 

IN THE SENATE OF THE UNITED STATES 

APRIL 8, 2011 

Mrs. FEINSTEIN (for herself and Mr. KYL) 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 to modify 

a provision relating to gaming on land acquired after 

October 17, 1988. 

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 ‘‘Tribal Gaming Eligi5 bility Act’’. 

6 SEC. 2. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 

7 1988. 

8 Section 20 of the Indian Gaming Regulatory Act (25 

9 U.S.C. 2719) is amended— 


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1 (1) by striking the section designation and 

2 heading and all that follows through ‘‘(a) Except’’ 

3 and inserting the following: 

4 ‘‘SEC. 20. GAMING ON LAND ACQUIRED AFTER OCTOBER 17, 

5 1988. 

6 ‘‘(a) IN GENERAL.—Except’’; and 

7 (2) in subsection (b)— 

8 (A) in paragraph (1)(B), in the matter 

9 preceding clause (i), by inserting ‘‘subject to 

10 paragraph (2),’’ before ‘‘lands are taken’’; 

11 (B) by redesignating paragraphs (2) and 

12 (3) as paragraphs (3) and (4), respectively; 

13 (C) by inserting after paragraph (1) the 

14 following: 

15 ‘‘(2) APPLICABILITY TO CERTAIN LAND.— 

16 ‘‘(A) IN GENERAL.—Except as provided in 

17 subparagraph (D), effective beginning on the 

18 date of enactment of the Tribal Gaming Eligi19 bility Act, in addition to any other requirements 

20 under applicable Federal law, gaming conducted 

21 pursuant to an exception under paragraph 

22 (1)(B) shall not be conducted on land taken 

23 into trust after October 17, 1988, by the 

24 United States for the benefit of an Indian tribe 

25 unless the Secretary determines, on the date 


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1 the land is taken into trust, that the Indian 

2 tribe— 

3 ‘‘(i) has received a written determina4 tion by the Secretary that the land is eligi5 ble to be used for gaming under this sec6 tion; and 

7 ‘‘(ii) demonstrates— 

8 ‘‘(I) in accordance with subpara9 graph (B), a substantial, direct, mod10 ern connection to the land taken into 

11 trust, as of October 17, 1988; and 

12 ‘‘(II) in accordance with subpara13 graph (C), a substantial, direct, ab14 original connection to the land taken 

15 into trust. 

16 ‘‘(B) SUBSTANTIAL, DIRECT, MODERN

17 CONNECTION.—In making a determination 

18 under subparagraph (A)(ii)(I) that an Indian 

19 tribe demonstrates a substantial, direct, modern 

20 connection to land taken into trust as of Octo21 ber 17, 1988, the Secretary shall certify that— 

22 ‘‘(i) if the Indian tribe has a reserva23 tion— 

24 ‘‘(I) the land is located within a 

25 25-mile radius of the tribal headVerDate Mar 15 2010 21:51 Apr 11, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S771.IS S771

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1 quarters or other tribal governmental 

2 facilities of the Indian tribe on the 

3 reservation; 

4 ‘‘(II) the Indian tribe has dem5 onstrated a temporal connection to, or 

6 routine presence on, the land during 

7 the period beginning on October 17, 

8 1988, and ending on the date of the 

9 certification; and 

10 ‘‘(III) the Indian tribe has not 

11 been recognized or restored to Federal 

12 recognition status during the 5-year 

13 period preceding the date of the cer14 tification; or 

15 ‘‘(ii) if the Indian tribe does not have 

16 a reservation— 

17 ‘‘(I) the land is located within a 

18 25-mile radius of an area in which a 

19 significant number of members of the 

20 Indian tribe reside; 

21 ‘‘(II) the Indian tribe has dem22 onstrated a temporal connection to, or 

23 routine presence on, the land during 

24 the period beginning on October 17, 


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1 1988, and ending on the date of the 

2 certification; and 

3 ‘‘(III)(aa) the land was included 

4 in the first-submitted request of the 

5 Indian tribe for newly acquired land 

6 since the date on which the Indian 

7 tribe was recognized or restored to 

8 Federal recognition; or 

9 ‘‘(bb)(AA) the application to take 

10 the land into trust was received by the 

11 Secretary during the 5-year period be12 ginning on the date on which the In13 dian tribe was recognized or restored 

14 to Federal recognition; and 

15 ‘‘(BB) the Indian tribe is not 

16 conducting any gaming activity on 

17 any other land. 

18 ‘‘(C) SUBSTANTIAL, DIRECT, ABORIGINAL

19 CONNECTION.—In making a determination 

20 under subparagraph (A)(ii)(II) that an Indian 

21 tribe demonstrates a substantial, direct, aborigi22 nal connection to land, the Secretary shall take 

23 into consideration some or all of the following 

24 factors: 


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1 ‘‘(i) The historical presence of the In2 dian tribe on the land, including any land 

3 to which the Indian tribe was relocated 

4 pursuant to the forcible removal of tribal 

5 members from land as a result of acts of 

6 violence, an Act of Congress, a Federal or 

7 State administrative action, or a judicial 

8 order. 

9 ‘‘(ii) Whether the membership of the 

10 tribe can demonstrate lineal descendent or 

11 cultural affiliation, in accordance with sec12 tion 10.14 of title 43, Code of Federal 

13 Regulations (or a successor regulation). 

14 ‘‘(iii) The area in which the unique 

15 language of the Indian tribe has been used. 

16 ‘‘(iv) The proximity of the land to cul17 turally significant sites of the Indian tribe. 

18 ‘‘(v) The forcible removal of tribal 

19 members from land as a result of acts of 

20 violence, an Act of Congress, a Federal or 

21 State administrative action, or a judicial 

22 order. 

23 ‘‘(vi) Other factors that demonstrate a 

24 temporal presence of the Indian tribe on 

25 the land prior to the first interactions of 


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1 the Indian tribe with nonnative individuals, 

2 the Federal Government, or any other sov3 ereign entity. 

4 ‘‘(D) EXCEPTIONS.— 

5 ‘‘(i) IN GENERAL.—Subparagraphs 

6 (A) through (C) shall not apply— 

7 ‘‘(I) to any land on which gaming 

8 regulated by this Act will not take 

9 place; 

10 ‘‘(II) to any land located within, 

11 or contiguous to, the boundaries of 

12 the reservation of an Indian tribe, as 

13 of October 17, 1988; 

14 ‘‘(III) if— 

15 ‘‘(aa) the relevant Indian 

16 tribe did not have a reservation 

17 on October 17, 1988; and 

18 ‘‘(bb) the land is located— 

19 ‘‘(AA) in the State of 

20 Oklahoma and within the 

21 boundaries of the former 

22 reservation of the Indian 

23 tribe, as defined by the Sec24 retary, or contiguous to 

25 other land held in trust or 


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1 restricted status by the 

2 United States for the Indian 

3 tribe in the State of Okla4 homa; or 

5 ‘‘(BB) in a State other 

6 than Oklahoma and within 

7 the last recognized reserva8 tion of the Indian tribe in 

9 any State in which the In10 dian tribe is presently lo11 cated; or 

12 ‘‘(IV) if the relevant Indian tribe 

13 has— 

14 ‘‘(aa) taken land into trust 

15 during the period beginning on 

16 October 17, 1988, and ending on 

17 the date of enactment of the 

18 Tribal Gaming Eligibility Act; 

19 and 

20 ‘‘(bb) has received a written 

21 determination by the Secretary 

22 that the land is eligible to be 

23 used for gaming under this sec24 tion. 

25 ‘‘(ii) CERTAIN DECISIONS.— 


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1 ‘‘(I) IN GENERAL.—Subject to 

2 subclause (II), subparagraphs (A) 

3 through (C) shall not apply to a final 

4 agency decision issued before the date 

5 of enactment of the Tribal Gaming 

6 Eligibility Act. 

7 ‘‘(II) PENDING APPLICATIONS.— 

8 Subparagraphs (A) through (C) shall 

9 apply to an application that is pend10 ing, but for which a final agency deci11 sion has not been made, as of the date 

12 of enactment of the Tribal Gaming 

13 Eligibility Act. 

14 ‘‘(E) ADMINISTRATION.—An action under 

15 this paragraph shall be considered a final ad16 ministrative action for purposes of subchapter 

17 II of chapter 5, and chapter 7, of title 5, 

18 United States Code (commonly known as the 

19 ‘Administrative Procedure Act’).’’; and 

20 (D) in paragraph (4) (as redesignated by 

21 subparagraph (B)), by striking ‘‘paragraph 

22 (2)(B)’’ and inserting ‘‘paragraph (3)(B),’’. 

Æ 


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