United States. Congress. Senate. Committee on Indi.

Seminole Tribe of Florida v. state of Florida : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, second session, oversight hearing on the impact of the U.S. Supreme Court's recent decision in Seminole Tribe of Florida v. state of Florida, May 9, 1996 online

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Online LibraryUnited States. Congress. Senate. Committee on IndiSeminole Tribe of Florida v. state of Florida : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, second session, oversight hearing on the impact of the U.S. Supreme Court's recent decision in Seminole Tribe of Florida v. state of Florida, May 9, 1996 → online text (page 1 of 53)
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S. HRG. 104-513

SEMINOLE TRIBE OF FLORIDA v. STATE OF
FLORIDA

Y 4. IN 2/11: S. HRG. 104-513

Seninole Tribe of Florida v. State...

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION

OVERSIGHT HEARING ON THE IMPACT OF THE U.S. SUPREME COURT'S
RECENT DECISION IN SEMINOLE TRIBE OF FLORIDA v. STATE OF
FLORIDA



MAY 9, 1996
WASHINGTON, DC




nc ant* i



J M2 9 1397



iilpi IDfs**^



S. HRG. 104-513

SEMINOLE TRIBE OF FLORIDA v. STATE OF
FLORIDA



HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION

OVERSIGHT HEARING ON THE IMPACT OF THE U.S. SUPREME COURTS
RECENT DECISION IN SEMINOLE TRIBE OF FLORIDA v. STATE OF
FLORIDA



MAY 9, 1996
WASHINGTON, DC




U.S. GOVERNMENT PRINTING OFFICE
24-586 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053801-7



COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota

SLADE GORTON, Washington HARRY REID, Nevada

PETE V. DOMENICI, New Mexico PAUL SIMON, Illinois

NANCY LANDON KASSEBAUM, Kansas DANIEL K. AKAKA, Hawaii

DON NICKLES, Oklahoma PAUL WELLSTONE, Minnesota

BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming
ORRIN G. HATCH, Utah

Steven J.W. HEELEY Majority Staff Director /Chief Counsel
PATRICIA M. ZELL, Minority Staff Director /Chief Counsel

(ID



CONTENTS



Page

Statements:

Collins, Richard B., School of Law, University of Colorado, Boulder, CO ... 41

Doyle, James, attorney general, State of Wisconsin, Madison, WI 24

Duchencaux, Franklin, esquire, Ducheneaux, Taylor, and Associates,

Washington, DC 47

Duffy, John, counselor to the secretary, Department of the Interior,

Washington, DC 5

Endrcson, Douglas B., esquire, Sonosky, Chambers, Sachse and

Endreson, Washington, DC '. 53

Gede, Thomas F., special assistant attorney general, Office of the Attor-
ney General, State of California, Sacramento, CA 27

McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee

on Indian Affairs 1

Leshy, John, solicitor, Office of the Solicitor, Department of the Interior,

Washington, DC 5

Skibine, Alexander Tallchief, School of Law, University of Utah, Salt

Lake City, UT 36

Straus, Jerry, esquire, Hobbs, Straus, Dean and Walker, Washington,

DC 56

Waxman, Seth, associate deputy attorney general, Department of Justice,

Washington, DC 2

Wcllstone, Hon. Paul, U.S. Senator from Minnesota 21

Appendix

Prepared statements:

Allen, W. Ron, President, National Congress of American Indians 359

Campbell, Curtis, Sr., Chairman, Praire Island Indian Community 65

Collins, Richard B. (with attachments) 63

Dick, Jr., Mathew. Chairman, Confederated Tribes of the Colvillc Res-
ervation (with attachment) 390

Doyle, James (with attachments) 113

Ducheneaux, Franklin (with attachments) 169

Endrcson, Douglas B. (with attachments) 184

Gede, Thomas F. (with attachments) 124

Hill, Rick, Chairman, National Indian Gaming Association (with attach-
ment) 333

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Com-
mittee on Indian Affairs 63

Kicffer, John, Vice Chairman, Spokane Tribe of Indians (with attach-
ments) 365

Leshy, John (with attachments) 95

Manuel, Edward D., Chairman, Tohono O'odham Nation 68

Phillips, Dale, Chairman, Arizona Indian Gaming Association 401

Ross, Dallas, Chairman, Upper Sioux Community, Granite Falls, MN 68

Skibine, Alexander Tallchief (with attachments) 158

Straus, Jerry (with attachments) 202

Van Horn, Jon W., Attorney, Sokaogon Chippewa Community 69

Waxman, Seth (with attachments) 71

Additional material submitted for the record:

Chino, Wendell, President, Mescalero Apache Tribe, letter 405

Lucero, Alvino, Governor, Pueblo of Isleta 407

National Indian Gaming Minimum Internal Control Standards 410

Seminole Tribe of Florida, comments 501

Thompson, Tommy G., Governor, Wiconsin, letter 409

(III)



IMPACT OF THE U.S. SUPREME COURT'S RE-
CENT DECISION IN SEMINOLE TRIBE OF
FLORIDA v. STATE OF FLORIDA



THURSDAY, MAY 9, 1996

U.S. Senate,
Committee on Indian Affairs,

Washington, DC.
The committee met, pursuant to notice, at 9:33 a.m. in room G-
50, Dirksen Senate Office Building, Hon. John McCain (chairman
of the committee) presiding.
Present: Senators McCain, Inouye, Reid, and Wellstone.

STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM
ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The Chairman. I'd like to welcome the witnesses here today to
present testimony today on the impact of the recent Supreme Court
decision on Seminole Tribe v. Florida on the Indian Gaming Regu-
latory Act.

Let me start out by saying that it's clearly in the interest of ev-
eryone in this room that all class III Indian gaming be conducted
pursuant to and regulated by tribal/State compacts. I believe that
the Seminole decision does not diminish the need for earnest good
faith negotiations between State and tribal governments to develop
compacts that effectively regulate class III gaming activities on In-
dian lands.

I, like many of my colleagues in the Senate, am interested in
hearing from the witnesses and engaging them on the legal impli-
cations of the Seminole decision, as well as last year's Rumsey deci-
sion in the 9th Circuit Court.

I am especially interested in hearing their views on the impact
of these decisions on existing gaming compacts, ongoing compact
negotiations, and the proposed authority of the Secretary of the In-
terior to issue regulatory procedures under which class III gaming
may lawfully occur on Indian lands in the absence of a tribal/State
compact.

Finally, let me say that there were a large number of individuals
and organizations who wanted to testify at this hearing, but, due
to our time constraints and the specific focus of this hearing on the
legal implications of the Seminole and Rumsey decisions, we were
unable to accommodate them. They've been encouraged to submit
written testimony for the hearing record, which will remain open
for 2 weeks.

(1)



Let me point out that we are talking about what has turned into
a multi-billion-dollar industry in America. We are talking about,
for the first time, Native American tribes in this country receiving
the kind of economic revenue stream which has allowed them to lift
the members of their tribes from conditions of severe economic pov-
erty and, in some cases, degradation. And we are talking about a
threat to that entire situation as a result of Seminole decision and
pending Rumsey decision.

I think it's of the utmost importance that the Congress under-
stand the implications of these decisions and try to determine what
legislative action, if any, needs to be taken.

I, as a supporter — an unabashed supporter — of Indian gaming
and the rights of Native Americans to engage in activities pursuant
to the Supreme Court Cabazon decision, frankly am somewhat
frustrated and confused as to the implication of the Seminole deci-
sion and other pending court decisions.

Just yesterday I met with tribal representatives from the State
of New Mexico who have engaged in gaming pursuant to tribal-
State compacts and yet there have been significant complications
that have arisen concerning their gaming activities.

So I think this is an important hearing. I think that it's one that
will provide us with a better handle on exactly what the situation
is, in light of the Seminole decision.

I regret to tell you that Senator Inouye is stuck in traffic and will
be here in a short period of time. I think our witnesses may have
been also.

Voice. We're certainlv sympathetic to that.

The Chairman. Good. We have Seth Waxman, associate deputy
attorney general, Department of Justice; John Leshy, solicitor, Of-
fice of the Solicitor, Department of the Interior, and John Leshv is
accompanied by John Duffy, as well, both of whom we have nad
numerous contacts with in the past on a broad variety of issues.

Mr. Waxman, could we begin with your testimony? Please pro-
ceed in whatever fashion you choose to. Your written testimony, as
you know, is made part of the record.

STATEMENT OF SETH WAXMAN, ASSOCIATE DEPUTY ATTOR-
NEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, DC

Mr. Waxman. Thank you, Mr. Chairman and Mr. Vice Chairman,
when he arrives, and all the other members of the committee. I'm
Seth P. Waxman, associate deputy attorney general in the Depart-
ment of Justice.

Thank you for inviting the Department to present its views on
the impact of the Supreme Court's decision in Seminole Tribe v.
Florida on the Indian Gaming Regulatory Act.

Mr. Chairman, the administration and the attorney general
greatly appreciate the efforts that you and the vice chairman per-
sonally have made to foster dialog between the Indian tribes and
States on Indian gaming. We hope that you will continue these ef-
forts over the coming months as we discuss how to make IGRA
workable in the wake of the Seminole Tribe decision.

Let me preface my remarks by stating that IGRA provides a
much-needed avenue for economic development in Indian country.
The Department is committed to honoring Congress' intent to pro-



tect Indian gaming as a means of building the economic self-suffi-
ciency of tribal governments.

Before delving into the intricacies of the Seminole Tribe decision,
it is important to understand the backdrop of that decision.

In 1987 the Supreme Court held, in California v. Cabazon Band
of Mission Indians, that California did not have the authority to
enforce its regulatory gaming laws against Indian tribes in Indian
country. Cabazon left Indian gaming without State or applicable
Federal regulatory involvement.

In 1988 Congress passed IGRA in order to establish regulatory
standards to protect Indian gaming. Today there are more than 140
class III compacts in 24 States generating revenue for Indian tribal
governments and providing funding for essential government serv-
ices, including hospitals, schools, and youth centers.

The economic benefits produced by Indian gaming do not stop at
the boundaries of Indian country. State and local economies also
benefit from the economic activities surrounding Indian gaming.

IGRA provides State governments with a different sort of benefit,
as well. The Constitution establishes Indian affairs as a unique
area of Federal concern. IGRA, however, provides for sharing of au-
thority between tribes, States, and the Federal Government in
order to regulate class III gaming.

Thus, IGRA provides the States a power withheld from them by
the Constitution — the opportunity to participate in developing
standards for the operation of class III Indian gaming through the
compacting process.

Congress envisioned that the benefits that flowed to States and
tribes from class III gaming would drive the compacting process,
and for the most part this vision has proved accurate. The majority
of tribal/State compacts have been concluded by voluntary negotia-
tions between States and Indian tribes.

Congress understood, however, that the voluntary compacting
process might falter in particular circumstances. To guard against
this, tribes were granted the ability to sue States.

To maintain a lawsuit under IGRA, the tribe must convince the
Court that the State has failed to negotiate in good faith. If the
tribe satisfies this burden, the only relief is a mediation process
that is designed to produce a compact. If a State does not consent
to the compact that is produced by the mediation process, the Sec-
retary, in consultation with the tribe, may prescribe procedures for
class III gaming.

This process has proven to be a strong incentive for all parties
to remain at the negotiation table. It's illustrated by the fact that
only two cases have led to a Court-appointed mediator and submis-
sion of the mediator's selected compact to the Secretary of the Inte-
rior.

In one of these instances, in Arizona, the State and the tribe
reached agreement on a compact without the Secretary having to
prescribe procedures in lieu of a compact. In the other instance,
Connecticut, the Secretary prescribed procedures.

The Supreme Court's decision in Seminole, by altering the State's
incentive to negotiate, raises questions about how the compacting
process will work when the State and tribe cannot successfully ne-



gotiate, the tribe believes the State has not negotiated in good
faith, and the State refuses to litigate.

In Seminole, the Supreme Court held that neither the commerce
clause nor the Indian commerce clause provide Congress with the
authority to abrogate States' sovereign immunity. As a con-
sequence, the Federal Courts do not have jurisdiction over suits
brought by Indian tribes against a State under IGRA if the State
raises an 11th Amendment defense.

The Court also held that the Federal Courts could not exercise
jurisdiction over such suits under the doctrine of Ex parte Young,
which allows suits against State officers in context where the 11th
Amendment would otherwise prohibit suit. Thus, we are now left
with the task of determining now the mediation process functions
after Seminole.

Seminole invalidated a step in the IGRA mediation process. Sem-
inole, however, does not affect the validity of existing class III gam-
ing compacts, nor does it prevent States from negotiating with
tribes and voluntarily entering into compacts.

Furthermore, Seminole does not relieve States of their statutory
obligation to bargain in good faith. It simply provides States with
an additional defense to sue.

It is our sincere hope that States will continue to view the com-
pacting process as a means of having input on gaming activities
that impact States' governmental interests. In order to protect
these interests, we trust that States will participate in IGRA's ne-
gotiation and mediation process.

Seminole may have an immediate impact on tribes that have im-
minent or ongoing litigation with States if those States do not con-
sent to suit. The Department of the Interior, in conjunction with
the Department of Justice, is analyzing what to do in this situa-
tion. To aid in this process, the Department of the Interior has is-
sued an advanced notice of proposed rulemaking.

This notice, which we understand either has been published in
the "Federal Register" or will be published in the immediate future,
requests comments on Seminole's effect on the remainder of IGRA's
compact mediation process. These comments will assist the Depart-
ment of the Interior and the Secretary in examining this question.

The question, as we see it, is not whether the IGRA compacting
process works in the wake of Seminole when the State asserts sov-
ereign immunity to sue, but how, consistent with Congressional in-
tent, it can be made to work.

Two Circuit Courts of Appeal have ventured opinions on the op-
eration of IGRA's mediation process where States have divested the
Federal Courts of jurisdiction to hear suits brought by tribes. They
are in conflict over the question of the Secretary of the Interior's
authority to implement procedures without a prior Court deter-
mination that a State has failed to negotiate in good faith, and the
Supreme Court has declined to consider this issue.

The Secretary therefore, must determine how the IGRA medi-
ation process works, without the benefit of clear guidance from the
Courts.

We believe that the issue of how the mediation process works
post-Seminole can be resolved through the administrative process,
and we fully support the Secretary's decision to work toward a pro-



posed and ultimately a final rule. But whatever decision the De-
partment of the Interior makes on the operation of this process, its
decision is likely to draw legal challenges — challenges that may
take years to resolve in the Courts. Therefore, the committee may
wish to address this issue through amendments to IGRA.

In its present form, IGRA has produced uncertainty and litiga-
tion on a number of confounding issues. These include the scope of
permissible gaming under State law, potential 10th Amendment
concerns, and the ambiguity over who, within each State, has the
authority to negotiate and sign compacts on behalf of the State.

In addition, as we emphasized in prior testimony before this com-
mittee, there is a need for minimum Federal regulatory standards
for Indian gaming. Congress could definitively resolve these prob-
lems, as well as the 11th amendment issue. Such a legislative reso-
lution of these issues would obviate years of protracted litigation.

In conclusion, I would like to reiterate the Department's strong
support for the goals that guided Congress in enacting IGRA: to
provide a means of promoting tribal economic development, strong
tribal government, and well-regulated tribal gaming.

We are committed to working with the committee and all inter-
ested parties to address the implementation of IGRA in the wake
of the Seminole decision.

This concludes my prepared remarks at this time, Mr. Chairman.
I'd be pleased to respond to any questions from you or any of the
committee members.

The Chairman. Thank you very much, Mr. Waxman.

[Prepared statement of Mr. Waxman appears in appendix.]

The Chairman. Let me just say that we appreciate what I think
is a statement that lays out this dilemma very well. I appreciate
that, and I appreciate your and the Department's continued sup-
port for the concept of Indian gaming. We're very appreciative of
all the help you've given us in previous years and are providing us
now.

I'd like to hear from Mr. Leshy first, and then we'll have ques-
tions for both of you.

Welcome back, John.

STATEMENT OF JOHN LESHY, SOLICITOR, OFFICE OF THE SO-
LICITOR, ACCOMPANIED BY JOHN DUFFY, COUNSELOR TO
THE SECRETARY, DEPARTMENT OF THE INTERIOR, WASH-
INGTON, DC

Mr. LESHY. Mr. Chairman, thank you very much. I appreciate
the opportunity to testify here today on this very important subject.

Mr. Waxman has laid out the issues quite comprehensively and
well, and let me just add a few additional thoughts.

We certainly echo the Department of Justice's testimony that
IGRA has worked. Its process of promoting tribal/State negotia-
tions and compacts has really been a demonstrated success. We
have more than 140 compacts in more than 20 States. The prob-
lem, of course, that brings us here today is that five of nine Su-
preme Court justices have spotted what they think is a constitu-
tional problem in the current statute.

The Court decision clearly throws some sand in the gears of how
the statute works at a certain point in the process. The real issue



before us is how much sand is in the gears. And at this point I
don't think we can quite tell.

As Mr. Waxman pointed out, a couple of lower courts have ad-
dressed the question of what the authority of the Secretary of the
Interior is at the point of breakdown in the compact negotiations
and the assertion of an 11th amendment immunity defense by a
State, and those two courts have reached opposite conclusions
about what the Secretary's authority is.

As Mr. Waxman pointed out, we are publishing an advanced no-
tice of proposed rulemaking that lays out a number of questions.
We're inviting comment from the tribes and the States and other
interested parties on it.

I'm told that because the office of the "Federal Register" actually
moved this week, it won't be published until tomorrow, but I've ap-
pended a copy of the ANPR to my testimony.

The first question we raised in that advance notice is: What is
the Secretary's authority to act in these situations when the tribe
and State go to court and the State asserts an 11th amendment im-
munity from suit?

We have some substantial difference of opinions among those
who have looked at this subject around the country, and we're ask-
ing parties and interested people to tell us what they think.

If we satisfy ourselves that the Secretary does have authority to
move forward, there are still a number of other issues that we'll
have to work through, and we have identified many of those in this
advance notice.

If the Secretary chooses to promulgate procedures, what kind of
process should he use? Should it be some sort of rulemaking or
some sort of more informal policy guidance? What are appropriate
procedures to promulgate? Is there some sort of generic one-size-
fits-all solution, or do we have to tailor procedures to individual sit-
uations because these vary from State to State and tribe to tribe
around the country?

What procedures should be utilized by the Secretary for deter-
mining what legal issues may be in dispute?

The scope of gaming issue, obviously, is one that has attracted
considerable controversy and dispute, and that is something the
procedures could address. We're asking people to tell us how they
think we might address those in procedures.

How should these procedures address regulation of Indian gam-
ing in Indian country? What's the appropriate body for regulating?

Beyond the legal issues there are some practical problems. If the
Secretary is to take a more significant role in this process, where
do we get the staff and the money to do it?

These are the questions we're raising in the advance notice of
proposed rulemaking. We certainly invite everybody to submit their
views, and we will evaluate them before we go forward.

I believe the advance notice calls for comments by July 1. We
will, of course, be continuing our examination of these issues in the
meantime. We're not going to stop and wait for all the comments
to come in.

I should emphasize that whatever we decide will surely be liti-
gated, and resolution of the litigation might take many years.



Given that, it is important to note that, of course, Congress could
act. Perhaps the most prompt and definitive way to solve this prob-
lem would be legislation. I know that wouldn't be easy, but it is
something that I am compelled to point out.

We fully support the purpose

The Chairman. We're aware of our failings, John. [Laughter.]

Mr. Leshy. We fully support Indian gaming and the process es-
tablished by the IGRA We are determined to work through this
problem as best we can and come up with the most credible, defen-
sible solution that will allow everyone to move forward.

I join in the Department of Justice's comments and testimony,
and I'm happy to answer any questions.

The Chairman. Thank you very much, John.

[Prepared statement of Mr. Leshy appears in appendix.]

The Chairman. I note survival of the vice chairman through the
traffic. I wonder if he had any opening comments he'd like to make.

Senator Inouye. Thank you very much, Mr. Chairman. I have an
opening statement, but may I request that it be made part of the
record.

The Chairman. Without objection.

[Prepared statement of Senator Inouye appears in appendix.]

The Chairman. Of course, the presence of Senator Inouye here
is of vital importance, as he was the prime author of the original
IGRA, and his continued efforts are of inestimable value to this
committee and to the Congress and to Native Americans.

Mr. Waxman, let me see if I can define part of the problem in
layman's terms, and perhaps you can help us out here a little bit.

In light of the Seminole decision, there are some who would
argue that this removes any responsibility or any participation by
the States in the capacting process, it would return to Cabazon and
allow the Secretary of the Interior to negotiate compacts with the
tribes.

Is there any substance to that interpretation?

Mr. Waxman. Thank you, Mr. Chairman. I will preface my re-
marks by saying that whatever conclusions the Justice Department
has reached at this time are

The Chairman. Tentative?

Mr. Waxman. Tentative in view of the advanced notice of pro-
posed rulemaking. We, too, are greatly looking forward to the
more-considered comments from all of the interested parties, but I
think I would have to say that our view is quite emphatically that
the Supreme Court's decision in Seminole does not negate or elimi-
nate most of IGRA, or, indeed, any of IGRA.

The Supreme Court has not struck down even a single provision
of the statute itself. It has simply held — and it is nothing more
than this — that when a tribe requests that a State negotiate a com-
pact, under IGRA the State has an obligation to negotiate in good



Online LibraryUnited States. Congress. Senate. Committee on IndiSeminole Tribe of Florida v. state of Florida : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, second session, oversight hearing on the impact of the U.S. Supreme Court's recent decision in Seminole Tribe of Florida v. state of Florida, May 9, 1996 → online text (page 1 of 53)