Exchange Sunset Act of 2013

Mr. Speaker, I yield myself such time as I may consume.

We're back again. This is the second time with a different piece of legislation. And, quite honestly, H.R. 1410 is nothing more than special interest legislation designed to protect the Phoenix market from a few wealthy tribal gaming enterprises.

The legislation not only upsets settled law, but potentially subjects the United States to new liabilities for breach of trust, breach of contract, and taking claims valued in the hundreds of millions of dollars, but it also creates a dangerous precedent for hundreds of tribal-State compacts and land and water rights settlements that are found nationwide.

Let's talk about those promises. The Gila Bend Act, approved and enacted by this Congress 25 years ago, entitled the Tohono O'odham Nation to acquire nonreservation land anywhere within three Arizona counties in order to replace original reservation land rendered economically useless by the Painted Rock Dam, the San Lucy District in particular, which that community was totally destroyed.

The settlement specifically promised that the nation could acquire new replacement land that could be used by the nation for economic development and as a ``Federal reservation for all purposes.''

H.R. 1410 would impose additional restrictions beyond those agreed upon by the United States and the Tohono O'odham Nation 25 years ago, breaking the solemn promise made between two sovereign nations. This would mark the first and only time in the modern era in which the United States unilaterally reneges on a tribal land and water rights settlement.

Last time around, the special interests behind this legislation tried to amend the actual settlement language from 1986. They soon discovered that that would open up a Pandora's box, potentially rendering more than a century's worth of binding, legal agreements with Native American tribes and nations moot.

This time, they thought they would be clever and instead attack the actual State compact, but this legislation sets equally dangerous precedent. In the 2003 compact, the State explicitly agreed that the nation could conduct gaming on any of the nation's lands that meet the requirements of IGRA. Proposition 202, the voter-sanctioned State law which gave the Governor the authority to enter into the very tribal gaming compact now in force, includes the exact same language allowing the Tohono O'odham Nation to conduct gaming on lands that meet the requirements of IGRA.

H.R. 1410 breaks this contractual promise that Arizona made to the Tohono O'odham Nation. It would also be the first and only time that the United States unilaterally inserts new terms into a tribal-State gaming compact. Let me restate that. With H.R. 1410, the Federal Government will be stepping in and unilaterally altering a voter- approved, legislature-approved, tribal-approved, and Governor-approved binding tribal-State compact.

How's that for a dangerous precedent? This legislation would put all tribal gaming compacts at risk of collateral attack by Members of Congress.

Now the special interests are bringing H.R. 1410 up this time because they have lost yet another court case. Since its predecessor, H.R. 2938, was introduced in 2011, almost every argument to justify H.R. 2938 and now H.R. 1410 has been rejected by Federal courts in multiple cases. In fact, there have been 11 administrative and judicial decisions rejecting justifications for this legislation. The latest came on June 25, 2013, when the Federal district court ruled the Arizona tribal-State gaming compact was fully integrated and contained no prohibition of new gaming in Phoenix, and this foreclosed any alleged promises not to game. The court dismissed all remaining claims brought by plaintiffs.

Aside from making good on what the Federal Government promised the Tohono O'odham Nation, this is also about jobs, jobs that this project would create, 9,000 of them, and $300 million in annual economic impacts that are critical to the economic well-being of the west valley of Phoenix and the State of Arizona. This is why many of the surrounding cities and hundreds of business leaders and trade organizations are supportive of the project.

The city of Glendale, where the casino would be located and which was initially party to the lawsuits, is now actively working with the nation to move forward on the project. They see the economic benefits it will bring. In fact, they are asking Congress not to pass this legislation as it will only undermine their ongoing talks.

Congress needs to stop trying to interfere in this issue in order to pick winners and losers. This bill is just a waste of time and energy that this Congress should be spending on many more pressing issues that face this Nation.

It should be noted that the administration has twice testified against this bill in both versions, which regardless of what happens today in the House, it will not become law.

I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

(Mr. GRIJALVA asked and was given permission to revise and extend his remarks.)

Let me enter into the Record three letters. One is from Councilwoman Norma Alvarez from the city of Glendale. Let me quote from it:

As a member of the Glendale City Council, I urge you to

oppose H.R. 1410, the so-called Keep the Promise Act. This

bill is aimed at halting the Tohono O'odham Nation's resort

and casino project in the West Valley in order to preserve

the market share of two wealthy tribes on the other side of

the valley. In serving these narrow interests, H.R. 1410 will

also be harmful to my constituents, who want the thousands of

jobs that the West Valley Resort and Casino will create.

I am part of a majority of the Glendale City Council that

supports beginning discussions with the Tohono O'odham Nation

to find ways to work together. These talks are long overdue

and they need an opportunity to succeed.

From Councilman Samuel Chavira from Glendale, let me quote from him:

As a local elected official, I believe that this

legislation is not only detrimental to my community, but is

an affront to the notion of fairness in attempting to

overturn a land settlement resolved by Congress three decades

ago brought by parties who have repeatedly failed to sustain

their position in court. My constituents want this project to

go forward, the sooner the better. Please join me in opposing

Mr. Speaker, I yield myself such time as I may consume.

It has been impossible to correct the misrepresentations, and to put that mildly, the constant and sophisticated disinformation lobbying campaign has persisted without regard to facts or reality. There has been some constant points that were made--that H.R. 1410 is about stopping reservation shopping and off-reservation gaming, akin to the situation that's going on in Michigan. It is totally different. It is unrelated, and the decree by Congress in law, upheld by State and Federal law, points to the fact that that is not real, and it is totally different.

The 202 initiative that the public voted on and passed, that that somehow is in jeopardy. The last court hearing reaffirmed that that was not the case.

And that it is a precedent for all State compacts to be opened up. Each State compact is unique, different, with its own checks and balances, and Arizona is no different.

This is a violation of the State gaming compact, and that there was a gentleman's agreement. Again, the courts pointed that that was not in fact part of the record or part of the decision, and that court decisions, very interesting, court decisions, Interior Department findings, are of no matter:

In 2009, April 30, the Department of Interior ruled in favor of Tohono O'odham Nation.

In 2009, June, ruled in favor of the Tohono O'odham Nation.

In 2010, July 23, Echohawk Trust decision letter, in favor of the Tohono O'odham Nation.

The Gila River v. U.S., 2011, March, court summary judgment in favor of the Tohono O'odham Nation.

May 20, 2013, Ninth Circuit Court decision in favor of the Tohono O'odham Nation.

The Tohono O'Odham Nation v. Glendale on an annexation issue 2011, May, Court of Appeals decision, Tohono O'odham Nation.

2011, October, Supreme Court denial of petition for review, Tohono O'odham Nation prevails.

2011, December, Supreme Court fee award, Tohono O'odham Nation prevails.

2012, January, Superior Court judgment, Tohono O'odham Nation prevails.

Tohono O'Odham Nation v. Arizona, 2011, June, district court summary judgment, Tohono O'odham Nation prevails.

2011, June, again district court judgment, Tohono O'odham Nation.

Arizona v. Tohono O'Odham Nation, district court order on a motion to dismiss claims 5 and 6; claims 1, 2, 3, and 7 in part, Tohono O'odham Nation wins.

2013, May, district court summary judgment order, all remaining claims except breach of contract under restatement, Tohono O'odham Nation wins.

2013, June, district court summary judgment order, all remaining claims, including breach of contract, Tohono O'odham Nation prevails.

Again, June, 2013, district court judgment, Tohono O'odham Nation prevails.

Eleven in total administrative and judicial decisions--but let's not let facts and judicial precedent and the fact that the Tohono O'odham Nation has prevailed consistently against the State, against the city of Glendale, against competing tribes over and over again and has had the Interior Department, which, as I stated earlier, has testified twice against the previous legislation and against this legislation.

I want to quote from The Glendale Star from their editorial of August 1:

Is it any wonder so many people distrust government--at any

level? When there are so many questions about the motives of

the plaintiffs that are suing the Tohono O'odham Nation, one

begins to ask about the greed factor.

Does anyone believe the future of Indian gaming in Arizona

is at risk if the Tohono O'odham Nation eventually wins this

long, drawn-out battle in the courts? Who is willing to bet

on the future of Indian gaming in our State?

If the congressman who is sponsoring this legislation is so

set against gambling, he should be trying to get rid of all

the casinos in the State. He should be out stumping for the

end of gaming altogether.

Instead, he is working on the side of the two major gaming

operations in the valley, both in the East Valley, by the

way, and not the West Valley.

This congressman needs to start looking in his own backyard

and trying to come up with solutions to unemployment, help

for small business owners, transportation gridlock, and more

than blocking what could be a big step toward economic

stability, i.e., jobs. At least, the nation's resort-casino

would provide construction jobs for many out-of-work

carpenters and masonry workers for a year or two. Those jobs

are needed now.

I mention all this because, as I said earlier, it's been difficult to try to counter the allegations and the misrepresentation and the disinformation that have been leveled against the Tohono O'odham Nation's efforts to establish a casino under a congressional decision and law that afforded them, to make them whole because of the land they lost because of the dam, and we're still back here on this particular piece of legislation.

So court decisions, administrative decisions matter not. Precedent matters not. The opening of Pandora's box, in terms of water claims and other settlements with Indian country, matters not.

What matters is to protect some very important gaming interests and special interests for two gaming entities that have had the luxury for the last 5, 6, 7, 8, 10 years.

Tohono O'odham Nation has prevailed in court. The issue of a backroom deal that wasn't kept has been ruled moot by the court. The issue that this is somehow reservation shopping and offsite gaming has been ruled moot by the court.

And then you have the Glendale City Council, a principal plaintiff in this, now retreating and, rather, working with the Tohono O'odham Nation to work out some agreements, as opposed to continuing the litigation.

The courts have ruled $4.5 million is owed to the tribe in legal costs by both the State and the affected gaming industry, also from Glendale; and I think it's time, as this legislation goes forward, that people ask a very fundamental question about this legislation: Is it intended to preserve a gaming compact? Which, I believe, and the court has ruled, no.

Or is it intending to preserve a market share for two gaming entities that have enjoyed that market share by themselves?

The free market requires competition. The free market requires opportunity. And all that is happening in this legislation is to try to constrict the ability of people in this free market of ours to compete, to create jobs, and to create opportunities.

Mr. Speaker, with that, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

There's no question that the prevailing point of view--and I talked about the disinformation--will prevail here today. I have no question about that.

The fact that we are going against judicial decisions, undoing a law that was passed by this Congress to make whole a tribe that lost their land 25 years ago, and interjecting ourselves, for the first time in the history of this Nation into a State and Native American gaming compact, that doesn't negate that.

So, you know, my opposition, whether it's in the distinct minority or not, is based on what I believe is reality and fact. And if this debate were about reality and fact, and not about supposition, disinformation, or misinformation, the debate would be in a whole different tone.

This is about economic development for the State. This is about Congress making true on a decision they made 25 years ago, and this is about Congress not short-cutting judicial decisions that have been made over the course of the last 5 years, in which the Tohono O'odham Nation has prevailed in every one of them.

So, given all that, bipartisanship, I love it, but being correct and holding true to a decision that this Congress made 25 years ago, I think, is consistent with the work of this House and consistent with preserving gaming compacts in States and, more importantly, making whole a tribe that lost valuable resources to the Federal Government in the past.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

In closing, let me say that the situation in Michigan, as I mentioned, is unrelated to this. There is no legal precedent, and there is no congressional action to guide the decisions of courts, which has been the case with the Tohono O'odham decision and with the casino in the West Valley.

Let me just say, this is about fairness. This is about Congress upholding its word.

This is not about reservation shopping. It's not about offsite gaming. It is not about a gentlemen's agreement.

And it is totally and entirely about an act that was taken 25 years ago, upholding that act, making a tribe whole, and not opening up a Pandora's box in which litigation will continue to proceed once this legislation goes forward.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 1410) to prohibit gaming activities on certain Indian lands in Arizona until the expiration of certain gaming compacts.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and include extraneous materials on the bill under consideration.

Mr. Speaker, I yield myself such time as I may consume.

H.R. 1410, the Keep the Promise Act, introduced by a bipartisan group of Members from the Arizona delegation, would preserve Arizona's voter- approved gaming compact by prohibiting any Indian casino on land acquired in trust after April 9, 2013, in the Phoenix metropolitan area. This prohibition would expire on January 1, 2027, when the current gaming compact negotiated with the Arizona Governor expires.

This bill helps to resolve public promises that were supposedly made in good faith to the voters of Arizona. In 2002, the voters supported the passage of Proposition 202, which limited the number of tribally owned casinos in the State, and it granted tribes exclusive rights to operate casinos in Arizona. During the Proposition 202 campaign, a public promise was made by a coalition of 17 Arizona tribes, including the Tohono O'odham Nation, to limit casino gaming in the Phoenix metropolitan area. Unfortunately, it appears that a tribe is on the verge of breaking that commitment, and more than a majority of the tribes in the State are upset.

The immediate effect of the bill is to block the Tohono O'odham Nation from opening an off-reservation casino in the Phoenix area. This is a modified version of a bill passed by an overwhelming majority of the House last year.

As mentioned earlier, the bill has bipartisan support, including a majority of the House delegation, the Governor of Arizona, and six of the tribes that took part in the Proposition 202 agreement: the Salt River Pima-Maricopa Indian Community, the Gila River Indian Community, the Hualapai Tribe, the Pueblo Zuni, the Cocopah Indian Tribe, and the Fort McDowell Yavapai Tribe.

It is important to point out that it is not just Arizona tribes that support this bill. I have met tribes from other States, and they are very concerned about what is happening in Arizona. They believe that if our legislation is not signed into law, a dangerous precedent could be set, leading to the expansion of off-reservation casinos in Arizona and other States. They want to see Congress protect State gaming compacts.

For me, today's deliberations are not about stopping one casino or gaming as a whole. I support gaming. The Keep the Promise Act is about protecting the integrity of my State's gaming compact, the future of gaming in Arizona, and, ultimately, the future of Indian gaming in this country.

I urge adoption of the measure and reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentleman from Arizona, Mr. Trent Franks, the author of this bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, may I inquire regarding the amount of time remaining?

Mr. Speaker, I yield 5 minutes to the gentleman from Arizona (Mr. Schweikert).

Mr. Speaker, I'd like to acknowledge that out of our committee this bill was reported 35-1 in favor of this bill, so a heavily bipartisan bill reported to the House.

I reserve the balance of my time.

Mr. Speaker, I yield 1 minute to the gentleman from Michigan (Mr. Kildee).

Mr. Speaker, I yield myself as much time as I may consume.

Trust is a series of promises kept. That's the basis of all government functions. And that is the same thing that is required of the Tohono O'odham. When they entered into the agreement in 2002, they publicly supported the compact which limited the amount of casinos in the Phoenix-Greater Phoenix area.

Yes, it is true there are other precedents behind it, but contractual law always follows and subjugates itself when you look at this.

The speaker from Arizona spoke about the dialogue with the courts. The courts had to rule because the Tohono O'odham hid behind sovereignty in which the tapes and discussion in which they were truly negating or negotiating behind closed doors in dire dissent against this compact would not be disclosed. So the court only had one way to look.

Congress has the ability to rectify this answer, and that's why we are here today. This is good legislation. It doesn't prohibit any of the jurisdictions over that, except just complying with the compact to the end of the compact, 2027. Once upon that time, then they can renegotiate, and everybody is fairly into the game.

This is about trust, but it is trust from the Tohono O'odham to the Federal Government, to the taxpayers of Arizona, to the Governor, and to the other tribes of Arizona.

Mr. Speaker, I yield back the balance of my time.

I thank the gentleman.

Mr. Speaker, on behalf of a lot of the Members here of the House of Representatives, I want to thank Peggy Sampson for her tremendous work to help us all. This is her birthday, Mr. Speaker, and we wish her a happy birthday. We hope she has 100 more and that at least 90 of them are spent helping us here in this House to do a better job. We appreciate her very much.

Mr. Speaker, let me also thank Chairman Hastings and leadership for bringing this bill to the floor today, as well as the bipartisan group of cosponsors for their support. I certainly want to thank all of the Members of the Arizona delegation that are in support of this bill.

Mr. Speaker, H.R. 1410, the Keep the Promise Act, seeks to prevent Las Vegas-style gaming in the Phoenix metropolitan area until the gaming compact that both the tribes agreed to and the Arizona voters approved expires in 2027.

One Tucson-area tribe is trying to build a major casino on lands that were purchased in the Phoenix metropolitan area at the very same time they were in negotiations with other tribes in the State to craft this gaming compact. These actions are contrary to the public commitments that this particular tribe made between 2000 and 2002 to the 16 other Indian tribes in Arizona, the State itself, and the voters of the State of Arizona; and they publicly supported the passage of Proposition 202, a State referendum to limit casino gambling in the Phoenix metropolitan area. Mr. Speaker, the bipartisan cosponsors of H.R. 1410 are simply trying to keep all the parties to their publicly stated commitment to the people of Arizona not to engage in gaming in the Phoenix metropolitan area.

Mr. Speaker, during the subcommittee hearing on this bill, witnesses made clear that there is a problem and a serious threat to the negotiated gaming structure in Arizona if this tribe is able to break its promise and develop a Las Vegas-style casino in the Phoenix metropolitan area.

H.R. 1410 prevents an onerous precedent that could lead to an out-of- control expansion of off-reservation casinos as well as dangerous changes to the complexion of tribal gaming in other States across America.

Mr. Speaker, tribes across this Nation, including many of the other Arizona tribes that played an integral role in the 2002 gaming compact, strongly support this legislation due to the impact this situation could have on tribal gaming enterprises nationally. The bill is also supported by the State of Arizona, the city of Glendale, the city of Litchfield Park, the city of Scottsdale, the city of Tempe, the town of Gilbert, and the editorial board of The Arizona Republic, which is the largest newspaper in the State.

Additionally, Mr. Speaker, even if the casino weren't in violation of Federal law or contrary to the voter-approved gaming compact, claims that the operation would create jobs and benefit the economy of the surrounding area are woefully misinformed at best and shamefully dishonest at worst.

Tellingly, multiple organizations, including the city of Glendale, asked that the tribe release the data and methodology supporting their economic study, which was conducted roughly 4 years ago, and to this day the tribe continues to steadfastly refuse. In other words, the tribe released a batch of numbers extolling the supposed amazing economic benefits of this new casino and then refused to tell anybody how they came about finding and coming up with those numbers.

Mr. Speaker, this bill does not impact any tribe's ability to have lands taken into trust, nor does it impact any water or land claims. Consistent with the intent of the Indian Gaming Regulatory Act and Proposition 202, this bill merely restricts the ability of tribes to game on the very lands on which they agreed they would not game.

With that, Mr. Speaker, I respectfully ask that my colleagues join me and the Members of Arizona's delegation in supporting this bill.

Mr. Speaker, I thank Congressman Gosar, and from all of us, I see Peggy has slipped off the floor, but happy birthday.

Mr. Speaker, I actually come here before the body with somewhat of a unique perspective on what's going on here. And I hate to admit that I'm getting this old, but in 1993, I was the majority whip in the Arizona State house. I was the one who was assigned to work as a negotiator on the original IGRA compacts between the State of Arizona-- the legislature had to put its text together--and the tribal communities, our 21 land-holding tribes within the State of Arizona. So I spent a year of my life with lawyers and tribal members and their lawyers and members of the legislature and members of the Governor's office going over this over and over.

And the concern that constantly came up was, if we make this deal as IGRA, that had passed a few years earlier and was sponsored by one of our U.S. Senators, are we confident that this very situation that's happening right now would not happen.

Look, I know many of the players have changed in those 20 years, but this is what we talked about. And now I need to take you to the next reason: Why is this so dangerous to our State?

Arizona does something, and I don't know if it's unique to our State, but there's the ability for my poor rural tribal communities to transfer their machines to urban communities. I believe if this casino goes into my metropolitan area, my State, within a couple years, becomes a full-scale gaming State because the horse track and the others are already lining up, gearing up, I believe, to do the initiative, saying, hey, we all thought we had this deal. Look what's happening. They're coming into your neighborhood. Let's just put it on the ballot and let everyone participate in full-scale gaming. And the moment that happens, the value of the machine transfer for these poor rural tribes that are just now starting to build that consistent cash flow will go away.

This is much more than just dealing with the Tohono O'odham and where their aboriginal lands are and this acquisition of lands that are 100 miles beyond. This is an issue of: Are you about to allow something to happen that will change the very nature of my State?

Mr. Chairman, thank you for yielding some time to me.

I rise in support today of H.R. 1410. The Saginaw Chippewa Tribe in Michigan, whom I have the privilege of representing here, and for reasons that I concur with, have asked that I support this legislation, along with several other Michigan tribes that are opposed to off- reservation gaming. And so I ask my colleagues to join me in support of this legislation and in opposition to off-reservation gaming.