A "Dear Colleague" letter is circulating around the US Senate offering input on how to view the Kyl bill from the point of view of Indian gaming. IGN offers copies of two letters from Senators on their concerns about the Kyl bill.
United States Senate
Washington, DC 20510
July 10, 1998
Dear Colleague:
We are writing with regard to the Internet Gambling Prohibition Act (S. 474) and the impact this legislation will have on the already-regulated gaming activities of Indian tribes across the nation. Though we are in agreement with the objectives of this bill and like the bill's sponsors seek to prevent unregulated gaming on the Internet, the scope of the bill is overly broad and if enacted will amend the Indian Gaming Regulatory Act (IGRA) in ways never intended by the Congress.
In broad terms, when the IGRA was enacted in 1988, Indian tribes were assured that they would be allowed to continue to benefit from the evolution of technological aids in conducting gaming regulated under the Act. The report accompanying the IGRA legislation makes this clear in stating that
"(t)he Committee intends that tribes be given the opportunity to take advantage of modern methods of conducting class II games and the language regarding technology is designed to provide maximum flexibility." S. Rpt. 100-446
Efforts to accommodate the IGRA and the legitimate interests of the tribes in S. 474 have fallen short in many respects. For instance, the bill's proposed definition of "bets and wagers" does not provide an exclusion for already sanctioned and legal games under the IGRA.
Similarly, though non-tribal parimutuel gambling receives an exclusion from the reach of the bill, S. 474 does not exclude tribal parimutuels from the definition of "information assisting in the placing of a bet or wager".
The bill purports to include within the definition of "person" "any other government, organization, or entity". This definition, combined with the jurisdictional provisions of the bill augment state jurisdiction over Indian tribal activities on and off the reservation. Perhaps more than any other single provision in S. 474, the expansion of state authority and jurisdiction over tribal activities on and off Indian lands is a sweeping change in federal law that is unacceptable.
The bill also exempts from its purview any "multi-state lotteries" operated jointly between two or more states. And while the bill provides an exemption for IGRA games, it conditions the exemption on requirements that: (1) the bets be made on closed loop subscriber service or an interactive computer service that uses a private network; (2) each person placing, receiving or otherwise making the bet is "physically located on Indian land:" and (3) all class III games must be conducted pursuant to a compact entered into by a state in which each person placing, receiving or otherwise making the bet is "physically located". This language alters IGRA's requirement that the game be conducted "on Indian lands" to a more restrictive requirement that it be physically located on Indian land".
The addition of a geographical requirement is inconsistent with IGRA, and treats Indian gaming differently than non-Indian lotteries which are allowed to be operated jointly between 2 or more states in conjunction with state lotteries.
Because we are not convinced that the bill as currently drafted adequately addresses these matters, we are compelled to support an amendment that would protect the integrity of the IGRA and preserve the rights of Indian tribes to continue to engage in gaming activities sanctioned under the Act.
In addition to these IGRA-specific objections to S. 474, there are serious policy issues that have not been adequately addressed. In its comments on the bill, the Department of Justice has noted that unanswered questions remain regarding the enforcement of the bill against "casual" bettors; the unenforceability of the bill applied to offshore betting operations; and the probable economic impacts of this legislation on American-based firms.
Lastly, we urge that before the Senate take action on legislation dealing with the complex and ever-changing world of on-line technology, it wait for the recommendations of the National Gambling Impact Study Commission, which we understand is due to submit it report in June, 1999. The Commission is specifically charged with reviewing the issue of Internet gaming and it would be premature to enact legislation the consequences of which are largely unknown.
Thank you for your continued consideration of these concerns. If there are any questions, please contact Wayne Hammond in Senator Craig's office, Patricia Zell in Senator Inouye's office, and Jerrie Simons in Senator Campbell's office.
Sincerely,
Ben Nighthorse Campbell
Daniel K. Inouye
Larry Craig
United States Senate
Washington, DC 20510-1203
July 13, 1998
Dear Colleague:
When the Senate considers S. 474, the internet Gambling Prohibition Act, I will offer an amendment to exempt federally-regulated gaming activities conducted in accordance with the Indian Gaming Regulatory Act of 1996 (IGRA).
I support the bill's provisions that prohibit and impose criminal penalties on gambling activities conducted over the Internet by offshore operations that are not authorized, approved, or regulated by appropriate U.S. authorities. However, I do not support certain parts of S. 474 that would criminalize federally authorized, federally approved, and federally regulated Indian gaming activities. My amendment would exempt these activities from the bill.
It is important to note that the manager's substitute to be considered on the Senate floor already exempts horse racing, dog racing, off-track betting facilities, and state lotteries. The existence of these exemptions, and the absence of an exemption for Indian gaming conducted in accordance with IGRA, demonstrates a clear bias against the interests of Native Americans. This bias is all the more questionable, considering that Indian gaming is the only federally authorized, federally approved, and federally regulated gambling in the United States.
My point is simple: S. 474 is the wrong vehicle for Congress to make decisions regarding IGRA sanctioned activities. Let me demonstrated how the bill would result in the unfair treatment of some of my constituents.
The Coeur d'Alene Tribe operates the National Indian Lottery on its reservation in northwest Idaho and offers lottery games practically identical to those of the State of Idaho's lottery. The Coeur d'Alene have self-limited their operation to states that have lotteries of their own and are, to my knowledge, the first and only Indian tribe to promise to share a percentage of its gaming profits with non-gaming tribes.
Over the past four years, the Tribe has spent $12 million building a state-of-the-art computer system that permits the operation of their lottery in compliance with strict IGRA regulations. At every step, the Tribe has encountered legal challenges and harassment by various state attorneys general who oppose the National Indian Lottery because they fear competition to their individual state lotteries.
These legal challenges have resulted in at least two lawsuits which have questioned whether the National Indian Lottery's use of modern technology (such as the telephone or the Internet) is consistent with the IGRA requirement that gaming activity take place "on Indian lands." The National Indian Lottery has withstood every legal challenge. Rather than allowing the litigation to proceed under existing law, S. 474 disregards IGRA, bypasses the courts, and summarily prohibits and ciminalizes the Coeur d'Alene's operation.
Let me be perfectly clear. My amendment is not an endorsement of gambling or the National Indian Lottery. It simply recognizes the fact that IGRA is the exclusive law, federal or state, governing Indian gaming in the U.S. It would allow the courts, in accordance with the guidelines established by Congress, to decide the legal status of the National Indian Lottery or any other Indian gaming enterprise.
I urge you to support my attempt to improve S. 474 before its passage. My amendment would not authorize any new form of Internet gambling or expand the rights of gaming tribes in any way. It simply keeps in place the Congressionally established means of governing the only form of federally regulated gaming in the nation.
Feel free to contact me [or have your staff contact Wayne Hammon in my office (at 224-2752)] if I might be of any further assistance to you on this matter.
Sincerely,
LARRY E. CRAIG
United States Senator