Senate provision targeted tribes with commercial gaming plans

Sen. Harry Reid (D-Nevada). Photo from Facebook

The top Democrat in the Senate and another Democrat who's been trying to limit new tribal casinos were responsible for an anti-Indian gaming rider that's drawing attention on Capitol Hill.

Sen. Harry Reid (D-Nevada), the Senate minority leader, and Sen. Dianne Feinstein (D-California) co-sponsored the amendment, along with Sen. Dean Heller (R-Nevada), that was introduced earlier this month. Although it never came up for consideration as part of a defense bill, tribes are raising alarms about the effort.

“There is absolutely no reason to single out tribes in this way and prevent us from continuing to engage in economic development both on and off our reservation land,” Jim Shore, an attorney and member of the Seminole Tribe of Florida, wrote in a letter to the Senate Committee on Indian Affairs, The Boston Globe reports.

The language in SA 4586 is indeed broad and unprecedented. It would have punished certain tribes by requiring the Bureau of Indian Affairs to reject their gaming compacts if those compacts were somehow tied "directly or indirectly" to their commercial projects.

The amendment is being linked to the efforts of MGM Resorts International, a non-Indian gaming company that generated about $9.8 billion in revenue in 2013. The firm is trying to stop two Connecticut tribes from opening a commercial facility in that state.

But the provision would have gone beyond the Mashantucket Pequot Tribal Nation and the Mohegan Tribe. It makes reference to commercial facilities owned by "1 or more Indian tribes" and it's not tied to any particular state, meaning it could affect projects nationwide.

And it wasn't the only Indian gaming rider proposed for inclusion in the S.2943, the National Defense Authorization Act for fiscal year 2017. Reid and Heller sponsored another amendment, SA 4678, that would have required the BIA to prepare a report on certain commercial gaming projects sought by tribes.

The Senate passed S.2943 on June 14 without adopting either amendment. But the bill cleared by chamber by a bipartisan vote of 85-13 vote so any negative riders could have posed a major issue for tribes going forward in the legislative process.

The text of SA 4586, which would have amended the Indian Gaming Regulatory Act, follows:
At the end of subtitle I of title X, add the following:

(a) Purpose.--The purpose of the amendment made by
subsection (b) is to ensure that the rights, processes, and
provisions of the Indian Gaming Regulatory Act (25 U.S.C.
2701 et seq.) are used exclusively to provide for the
regulation of noncommercial gaming by Indian tribes on Indian
lands (as those terms are defined in section 4 of that Act
(25 U.S.C. 2703)).
(b) Commercial Gaming.--Section 11(d)(8) of the Indian
Gaming Regulatory Act (25 U.S.C. 2710(d)(8)) is amended--
(1) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E), respectively; and
(2) by inserting after subparagraph (B) the following:
``(C)(i) Notwithstanding subparagraph (B), the Secretary
shall disapprove a compact, or an amendment to a compact,
described in subparagraph (A) if the compact or amendment
authorizes, approves, or aids, directly or indirectly, in the
authorization or approval of a commercial gaming activity--
``(I) not located on Indian lands; and
``(II) that is or would be owned or operated, directly or
indirectly, by 1 or more Indian tribes.
``(ii) A compact or an amendment to a compact disapproved
under clause (i) shall not take effect.''.

The text of SA 4678, which would have required a report on commercial gaming facilities and Class III gaming compacts, follows:
At the end of subtitle I of title X, add the following:

SEC. 1097. REPORT.

(a) Definitions.--In this section:
(1) Class iii gaming.--The term ``class III gaming'' has
the meaning given the term in section 4 of the Indian Gaming
Regulatory Act (25 U.S.C. 2703).
(2) Exclusivity clause.--The term ``exclusivity clause''
means a provision that requires a Tribe to pay to a State a
percentage of gross gaming revenue only if the State does not
change the law of the State to permit commercial gaming
activity by any other person.
(b) Report.--Not later than 120 calendar days after the
date of enactment of this Act, the Secretary of the Interior
shall submit to the Committee on Indian Affairs of the Senate
and the Committee on Natural Resources of the House of
Representatives a report on--
(1) the number of Tribal-State compacts, and amendments to
such compacts, that contain exclusivity clauses that may be
impacted by a determination of the Secretary of the Interior
to approve a compact or compact amendment that could have the
effect of advancing commercial gaming activity on non-Indian
land where such activity is owned or operated, directly or
indirectly, by 1 or more Indian tribe; and
(2) the extent to which gaming regulations and laws in
States where class III gaming occurs on Indian land pursuant
to a Tribal-State compact, approved under the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.), meets or exceeds
standards established in that Act or regulations issued by
the National Indian Gaming Commission.
(c) Consultation.--The Secretary of the Interior shall
consult with Indian tribes, State governments, and commercial
gaming enterprises before issuing the report required under
subsection (b).

Get the Story:
Facing competition, MGM takes fight to Congress (The Boston Globe 6/26)

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