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Calendar No. 204
109th Congress Report
1st Session 109-136
MODIFYING THE DATE AS OF WHICH CERTAIN TRIBAL LAND OF THE LYTTON
PANCHERIA OF CALIFORNIA IS DEEMED TO BE HELD IN TRUST
September 12, 2005.--Ordered to be printed
Mr. McCain, from the Committee on Indian Affairs, submitted the
R E P O R T
[To accompany S. 113]
The Committee on Indian Affairs, to which was referred the
bill (S. 113) modifying the date as of which certain tribal
land of the Lytton Rancheria of California is deemed to be held
in trust having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
The purpose of S. 113 is to require the Lytton Band of Pomo
Indians (the ``Band'') to go through the administrative process
set forth in the Indian Gaming Regulatory Act, 25 D.S.C. 2701
et. seq. (``IGRAI''), before engaging in Class II or Class III
gaming on land recently acquired in trust for the Band in the
City of San Pablo, California.
A. THE LYTTON RANCHERIA
The Lyttons are a federally recognized tribe of
approximately 280 members. From the late 1930s to the late
1950s, the Lyttons, composed of the descendants of two
families, lived on the 50-acre Lytton Rancheria in Sonoma
County's Alexander Valley, about 80 miles from the City of San
Pablo in the San Francisco Bay Area. During the termination
policy era of the 1950s, Congress attempted to terminate the
federal trust in the rancheria and transferred title to the
land to individual members, who subsequently sold it to non-
Indians. In the 1980s, the Lyttons joined a lawsuit against the
Bureau of Indian Affairs challenging the termination. Finding
that the government had not met the conditions called for in
the termination statute to make the termination effective, a
federal court approved a settlement of the case in 1991. The
settlement restored the Lyttons to their pre-termination
status, but did not return the rancheria to them or give them
any other land. It also required that any gaming they conducted
in the area around their original rancheria be in conformance
with the Sonoma County general plan for land use. The Sonoma
County general plan does not permit gaming.
B. PUBLIC LAW 106-568, SECTION 819
Prohibited from conducting gaming in the area around their
original rancheria, the Lyttons, with the help of outside
investors, sought land elsewhere for a casino. They identified
a nine and one-half acre property off a major freeway in the
City of San Pablo, twenty miles from San Francisco, that
already had a card room operating on it. Elected officials in
the City of San Pablo, which has a population of about 30,000
and an unemployment rate almost twice that of the San Francisco
Bay Area, supported, and continue to support, the proposed
Lytton casino. In 2000, a provision sought by Congressman
George Miller, whose district includes San Pablo, was included
in the Omnibus Indian Advancement Act of 2000 (P.L. 106-568).
The provision directed the Secretary to take the San Pablo
property into trust, and deemed the land to have been held in
trust prior to October 17, 1988 (the date IGRA was enacted).
This ``deeming'' provision had the effect of obviating IGRA's
restrictions on Indian gaming on lands acquired after that
date. Section 819 of P.L. 106-568 reads as follows:
Notwithstanding any other provision of law, the
Secretary of the Interior shall accept for the benefit
of the Lytton Rancheria of California the land
described in that certain grant deed dated and recorded
on October 16, 2000, in the official records of the
County of Contra Costa, California, Deed Instrument
Number 2000-229754. The Secretary shall declare that
such land is held in trust by the United States for the
benefit of the Rancheria and that such land is part of
the reservation of such Rancheria under sections 5 and
7 of the Act of June 18, 1934 (48 Stat. 985; 25 U.S.C.
467). Such land shall be deemed to have been held in
trust and part of the reservation of the Rancheria
prior to October 17, 1988.
There have been efforts to modify the Lytton provision in
Section 819 of P.L. 106-568 since shortly after its enactment.
A provision in the FY2002 Interior Appropriations bill (P.L.
107-63), of indeterminate effect, provided:
Sec. 128. The Lytton Rancheria of California shall
not conduct Class III gaming as defined in Public Law
100-497 on land taken into trust for the tribe pursuant
to Public Law 106-568 except in compliance with all
required compact provisions of section 2710(d) of
Public Law 100-497 or any relevant Class III gaming
C. THE APRIL 5, 2005, HEARING
On April 5, 2005, the Committee held a legislative hearing
on S. 113, at which Senator Feinstein and Congressman George
Miller testified. The Department of Interior also testified on
behalf of the Administration. The Department stated that it did
not object to S. 113 because it believed waiving the
requirements of IGRA Sec. 20 for any particular tribe was
inappropriate. In response to questioning from Committee
Members, the Department also stated that it was of the opinion
that S. 113 did not constitute a ``taking'' of private property
rights of the Band pursuant to the Fifth Amendment of the
United States Constitution.
Also testifying were the Band, the City of San Pablo, the
California State Assemblywoman in whose district the subject
land is located, and the Pechanga Band of Luiseno Indians. The
City testified regarding its desire to have the Band operate a
casino in San Pablo, however, the Assemblywoman testified that
other surrounding communities were strongly opposed to the
casino. The Pechanga Band testified that it supported S. 113
because it believed all tribes should follow the dictates of
IGRA Sec. 20, and that S. 819 violated a ``promise'' made by
California tribes to the California electorate, that tribes
would not seek ``urban'' casinos.
Subsequent to the hearing, the Committee requested the
views of the Department of Justice regarding whether S. 113
might constitute a ``taking'' of private property pursuant to
the Fifth Amendment of the United States Constitution. The
Department of Justice responded by letter on September 9, 2005,
stating that it was of the view that S. 113 would not
constitute a ``taking.'' (A copy of the letter is included with
Summary of Major Provisions
S. 113 amends Section 819 of Public Law 106-568 by simply
striking the last sentence of the provision in the Omnibus
Indian Advancement Act of 2000 that ``deems'' the Band's San
Pablo property to have been taken into trust prior to 1988. The
intent of this is to require the Band to comply with IGRA's
restrictions on Class II and Class III gaming that apply to
land acquired after 1988.
S. 113 was introduced on January 24, 2005, by Senator
Feinstein and was referred to the Committee on Indian Affairs.
Senators Coburn and Ensign were added as cosponsors on July 18,
On April 5, 2005, a legislative hearing on S. 113 was
conducted by the Committee. Senator Feinstein and Congressman
George Miller appeared to provide testimony at the hearing.
Also appearing to provide testimony was the Department of
Interior, the Band, the City of San Pablo, the California State
Assemblywoman in whose district the subject land is located,
and the Pechanga Band of Luiseno Indians.
On June 29, 2005, the Committee held an open business
meeting during which S. 113 was considered. During the business
meeting, the Committee voted to favorably report S. 113 to the
full Senate with a recommendation that the bill do pass.
Committee Recommendation and Tabulation of Vote
On June 29, 2005, the Committee, in an open business
session, considered S. 113. Upon a motion by the Chairman for
approval of S. 113, and a request for a roll call vote by Sen.
Inouye, the Committee held a roll call vote on the motion, with
10 Members voting aye and 3 Members voting nay. With a majority
of Members having voted in the affirmative, the Committee
ordered S. 113 favorably reported to the full Senate with a
recommendation that the bill do pass.
Cost and Budgetary Considerations
The cost estimate for S. 113 as calculated by the
Congressional Budget Office, is set forth below:
Congressional Budget Office Cost Estimate
S. 113--A bill to modify the date as of which certain tribal land of
the Lytton Rancheria of California is deemed to be held in
Summary: S. 113 would eliminate a provision of the Omnibus
Indian Advancement Act that effectively made certain land held
in trust for the Lytton Rancheria tribe eligible for use as a
gaming site without meeting certain requirements of the Indian
Gaming Regulatory Act (IGRA). CBO estimates that implementing
S. 113 would have no significant impact on the federal budget.
Making the Lytton Band of Indians subject to the
requirements of IGRA would be considered an intergovernmental
mandate as defined in the Unfunded Mandates Reform Act (UMRA).
While the total cost of this mandate is very uncertain, CBO
expects that it would likely exceed the threshold established
in UMRA ($62 million in 2005, adjusted annually for inflation)
in at least one of the next five years. S. 113 contains no
private-sector mandates as defined in UMRA.
The bill would amend legislation enacted in 2000 that
ordered the Department of the Interior (DOI) to take land in
California into trust for the Lytton Rancheria. That
legislation contained a provision deeming the trust status of
that land to be retroactive, effectively permitting the tribe
to install electronic bingo machines or slot machines without
meeting the conditions imposed by section 20 of IGRA. Section
20 requires additional regulatory review and approval of
proposed Indian gaming facilities by DOI and the appropriate
governor as well as consultation with local communities. S. 113
would delete that provision of the 2000 act, thereby making the
tribe's gaming operations subject to section 20 of IGRA.
Estimated cost to the Federal Government: If S. 113 is
enacted, DOI would probably incur additional administrative
expenses to review a proposal by the Lytton Rancheria for
approval of its plans to operate gaming machines on the
affected land. CBO estimates that such costs would be less than
Based on information provided by the Department of Justice,
CBO assumes that the United States would not be held
responsible for economic losses incurred by the tribe if it is
unable to obtain approvals to operate gaming machines on the
trust land as a result of enacting this legislation. If a court
were to determine that the government must compensate the tribe
for such a possible loss, however, federal spending (probably
from the Claims and Judgments Trust Fund) would be significant.
We estimate that enacting this legislation would have no effect
on other direct spending or revenues.
Estimated impact on state, local, and tribal governments:
By making the Lytton Rancheria land subject to section 20 of
IGRA, S. 113 would significantly affect the Rancheria's gaming
operations. The affected site is currently in use as a card
room, but the tribe plans to install 500 electronic bingo
machines by the fall of 2005, and possibly more in the future.
Should S. 113 be enacted, the tribe would be prohibited from
operating these machines until they completed the process
required by section 20 of IGRA and received the necessary
approvals. It is uncertain whether the tribe would receive such
approvals or how long the process might take. In the meantime,
the tribe would lose the earnings from those machines. These
lost earnings would be the primary cost of the mandate.
Based on information received from tribal representatives
and from the National Indian Gaming Commission, CBO estimates
that the annual cost of the mandate, in the form of lost
earnings, could reach $50 million to $100 million within the
next five years. The tribe also would incur administrative and
legal costs to comply with the additional conditions. This
estimate is subject to a great deal of uncertainty concerning
both the level of revenue that would be generated by the
initial 500 machines, as well as the possibility that the tribe
would expand its operations in the absence of this legislation.
It is also possible that the threat of this legislation would
affect the situation even without it becoming law. CBO believes
it is likely, however, that the cost would exceed the UMRA
threshold at some point within the next five years. (The
threshold is $62 million in 2005, adjusted annually for
Estimated impact on the private sector: S. 113 contains no
private-sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Deborah Reis; impact
on state, local, and tribal governments: Marjorie Miller;
impact on the private sector: Alicia Handy.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
September 12, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 113, a bill to
modify the date as of which certain tribal land of the Lytton
Rancheria of California is deemed to be held in trust.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Deborah
Reis and Marjorie Miller.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee has concluded
that S. 113 will not require the promulgation of regulations so
the regulatory and paperwork impact should be minimal.
The following executive communication was received on this
Department of Justice,
Office of Legislative Affairs,
Washington, D.C., September 9, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In a July 18, 2005 letter, you requested
the Department of Justice's views on S. 113, a bill to modify
the date as of which certain tribal land of the Lytton
Rancheria of California is deemed to be held in trust. The
Committee recently held a hearing on S. 113, at which the
Department of the Interior testified that S. 113, if enacted,
would not constitute a ``taking'' pursuant to the Fifth
Amendment of the United States Constitution. While the
Department of Justice (the ``Department'') did not testify at
that hearing, you have asked whether the Department believes S.
113 would constitute a Fifth Amendment ``taking'' of a property
right of the Lytton Rancheria of California. Thank you for the
opportunity to present the Department's views on the bill.
The Department understands S. 113 to clarify the effect of
section 819 of the Omnibus Indian Advancement Act of 2000,
which deemed the property to have been held in trust since
before the enactment of the Indian Gaming Regulatory Act
(``IGRA''). IGRA prohibits gaming on land ``acquired'' after
its enactment (unless the Tribe undergoes an additional
regulatory process). 25 U.S.C. Sec. 2719(a) & (b)(I)(A).
Section 819 deemed the land to be held in trust prior to IGRA's
enactment; it did not deem the acquisition date to be earlier.
To the extent there exists any ambiguity in section 819, S. 113
will clarify Congressional intent.
Moreover, enactment of S. 113 should not constitute a
taking, as it 1) simply clarifies the economic regulatory
scheme applicable to the property and 2) if the bill were
deemed to alter the uses of the property, it only addresses
economic regulation and does not deprive the property of all
economically viable uses. Congress has plenary authority to
regulate gaming on Indian lands, and can freely alter
applicable laws. Because gaming is a highly regulated industry,
those who engage in gaming-related activity should anticipate
the possibility that the law may change. S. 113 is an
application of Congressional authority to regulate such
Thank you for your attention to this matter. If we may be
of additional assistance, please do not hesitate to contact
this office. The Office of Management and Budget has advised
that there is no objection from the standpoint of the
Administration's program to the presentation of this letter.
William E. Moschella,
Assistant Attorney General.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 113, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
PUBLIC LAW 106-568
To authorize the construction of a Wakpa Sica
Reconciliation Place in Fort Pierre, South Dakota, and for
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
* * * * * * *
TITLE VIII--TECHNICAL CORRECTIONS
* * * * * * *
SEC. 819. LAND TO BE TAKEN INTO TRUST.
Notwithstanding any other provision of law, the Secretary
of the Interior shall accept for the benefit of the Lytton
Rancheria of California the land described in that certain
grant deed dated and recorded on October 16, 2000, in the
official records of the County of Contra Costa, California,
Deed Instrument Number 2000-229754. The Secretary shall declare
that such land is held in trust by the United States for the
benefit of the Rancheria and that such land is part of the
reservation of such Rancheria under sections 5 and 7 of the Act
of June 18, 1934 (48 Stat. 985; 25 U.S.C. 467). [Such land
shall be deemed to have been held in trust and part of the
reservation of the Rancheria prior to October 17, 1988.]
* * * * * * *