Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-515

======================================================================



 
            INDIAN PUEBLO CULTURAL CENTER CLARIFICATION ACT

                                _______
                                

 June 28, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 4445]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4445) to amend Public Law 95-232 to repeal a 
restriction on treating as Indian country certain lands held in 
trust for Indian pueblos in New Mexico, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Indian Pueblo Cultural Center 
Clarification Act''.

SEC. 2. REPEAL OF RESTRICTION ON TREATING AS INDIAN COUNTRY CERTAIN 
                    LANDS HELD IN TRUST FOR INDIAN PUEBLOS IN NEW 
                    MEXICO.

  Public Law 95-232 is amended in the first section in subsection (b) 
by striking ``However, such property shall not be `Indian country' as 
defined in section 1151 of title 18, United States Code.''.

SEC. 3. PROHIBITION ON GAMING.

  Public Law 95-232 is amended in the first section by adding at the 
end the following:
  ``(e) Prohibition on Gaming.--Gaming, as defined and regulated by the 
Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), shall be 
prohibited on land held in trust pursuant to subsection (b).''.

                          Purpose of the Bill

    The purpose of H.R. 4445 is to amend Public Law 95-232 to 
repeal a restriction on treating as Indian country certain 
lands held in trust for Indian pueblos in New Mexico.

                  Background and Need for Legislation

    The Indian Pueblo Cultural Center property was owned by the 
United States and was originally the site of the Albuquerque 
Indian School, which was administered by the Bureau of Indian 
Affairs (BIA). In the 1960's, the federal government determined 
that the lands and improvements of the Indian school property 
were no longer needed for Indian school purposes. Subsequently, 
the BIA conveyed the land by quitclaim deed to the 19 New 
Mexico Pueblos as tenants in common. The purpose of the 
conveyance was to enable the Pueblos to develop an Indian 
Pueblo Cultural Center on the property.
    The All Indian Pueblo Council (AIPC), which has existed for 
centuries as a pan-Pueblo organization, is comprised of the 19 
New Mexico Pueblos and one Texas Pueblo (Ysleta del Sur became 
a member of AIPC in 2009). They meet monthly to discuss issues 
such as education, culture, and water and land rights. As 
overseers of the property conveyed to them by the BIA in 1969, 
they sought to clarify its legal status by requesting that the 
land be taken into trust by the United States for the benefit 
of the 19 Pueblos.
    In 1978 Congress enacted Public Law 95-232, which directed 
the Secretary of the Interior to place 11.2857 acres of land 
into trust for the benefit of the Pueblos. The issue H.R. 4445 
seeks to address regards Section (b) of that Act. It states:

          Such land shall be held in trust jointly for such 
        Indian pueblos and shall enjoy the tax-exempt status of 
        other trust lands, including exemption from State 
        taxation and regulation. However, such property shall 
        not be ``Indian country'' as defined in section 1151 of 
        title 18, United States Code. (italics added)

    At the time Congress passed Public Law 95-232, there was a 
general legal understanding that the ``Indian country'' 
definition applied solely to criminal jurisdiction, not to 
civil jurisdiction such as taxation. Since 1978, however, 
various courts have applied the Section 1151 definition to both 
criminal and civil jurisdiction, including issues of state 
taxation.
    Because of the change in the interpretation of the term 
``Indian country,'' the New Mexico Taxation and Revenue 
Department (NMTRD) decided in 1997 that the State could 
lawfully impose its gross receipts tax on a Pueblo member who 
engaged in business at the Indian Pueblo Cultural Center (In 
the Matter of the Protest of Val Tech & Associates, NMTRD 
Decision and Order, No. 97-26).\1\ The NMTRD concluded that 
Congress intended to authorize the State to tax Pueblo activity 
on the Cultural Center trust land by stating in Public Law 95-
232 that the land would ``not be Indian country as defined in 
section 1151 of title 18, United States Code.'' Relying on 
post-1978 court decisions applying the ``Indian country'' 
definition to taxation, the NMTRD decided that only the Indian 
Pueblo Cultural Center property itself is exempt from state 
taxation. The NMTRD decision was not appealed.
---------------------------------------------------------------------------
    \1\This hearing involved an enrolled member of the Pueblo of Laguna 
whose place of business was located at the Indian Pueblo Cultural 
Center. His business was to do private investigation, primarily 
personnel background investigations for casinos owned and operated by 
the Pueblos of Acoma, Sandia and San Felipe.
---------------------------------------------------------------------------

Indian Pueblo Marketing, Inc. (IPMI)

    The Indian Pueblo Marketing, Inc. (IPMI) is a corporation 
chartered by the Secretary of the Interior pursuant to 25 
U.S.C. Sec. 477 and is owned jointly by the New Mexico Pueblos. 
IPMI has conducted retail business operations on the Cultural 
Center trust land since 1987. During that period, IPMI has 
never paid State taxes on its business operations at the 
Cultural Center, and the State has only assessed taxes against 
IPMI for its business operations at the Cultural Center 
once.\2\ This occurred in 1998 when the NMTRD assessed 
cigarette and tobacco taxes against IPMI based on the Val Tech 
decision.
---------------------------------------------------------------------------
    \2\Neither Bernalillo County nor the City of Albuquerque, in which 
the Cultural Center trust land is located, has attempted to impose any 
tax on IPMI or Pueblo members based on their activity or property on 
the Cultural Center Trust Land. Further, the County and City have never 
attempted to tax the Cultural Center Trust Land itself, or the 
substantial improvements on that land. The local authorities seem to 
treat this land in the same manner as they do other lands taken into 
trust jointly for the New Mexico Pueblos.
---------------------------------------------------------------------------
    The following year, NMTRD entered into a Closing Agreement 
with IPMI withdrawing the assessments on cigarette and tobacco 
taxes against IPMI. The Agreement was approved by the NMTRD and 
the State Attorney General. It provided that Public Law 95-232 
``does not reflect any intention by Congress that the Pueblos' 
activity on the Cultural Center trust land would be subject to 
state taxation.''
    Despite the Agreement, in 2000, 2004, and 2008 NMTRD 
declined to issue a written ruling requested by IPMI confirming 
that IPMI is exempt from State taxation for its business 
activity on the Cultural Center trust land. The Pueblos are 
therefore in an uncertain and risky position that NMTRD may 
decide that the Val Tech decision is controlling, 
notwithstanding the 1999 Closing Agreement.
    Since 1978 Congress has taken other land into trust jointly 
for the New Mexico Pueblos on two separate occasions: the 
``Santa Fe Indian School Act,'' Public Law 106-568; and the 
``Albuquerque Indian School Act,'' Public Law 110-453. In both 
Acts, Congress declared that the land would be held in trust 
for the Pueblos, but did not state that the new trust land 
would not be Indian country. Enacting H.R. 4445 would grant the 
Cultural Center trust land the same legal status as these other 
lands placed in trust for the New Mexico Pueblos.

                            Committee Action

    H.R. 4445 was introduced by Rep. Martin Heinrich (D-NM) on 
January 13, 2010, and was referred to the Committee on Natural 
Resources. The Committee held a hearing on the bill on April 
21, 2010. Mr. George Skibine, Acting Principal Deputy Assistant 
Secretary for Indian Affairs, testified in support of this 
legislation, provided that the State of New Mexico and the City 
of Albuquerque concur with the purposes of the bill. He also 
requested the addition of language clearly stating that the 
subject lands are ``Indian country'' for the purposes of 
section 1151 of title 18 of the United States Code. The State 
of New Mexico testified in support of H.R. 4445 and the City of 
Albuquerque has submitted a written letter of support.
    On June 16, 2010 the Natural Resources Committee met to 
consider H.R. 4445. An amendment was offered by Mr. Heinrich to 
prohibit gaming on the Indian Pueblo Cultural Center lands. The 
amendment was adopted by unanimous consent. The bill, as 
amended, was then ordered favorably reported to the House of 
Representatives by unanimous consent.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 provides that this Act may be cited as the 
``Indian Pueblo Cultural Center Clarification Act.''

Section 2. Repeal of restriction on treating as indian country certain 
        lands held in trust for Indian Pueblos in New Mexico

    Section 2 amends Public Law 95-232 by striking ``However, 
such property shall not be Indian country' as defined in 
section 1151 of title 18, United States Code.'' This section 
would provide the lands, on which the Indian Pueblo Cultural 
Center is located, the same legal status as other lands taken 
into trust jointly for the Pueblos of New Mexico. Declaring the 
lands that are the subject of H.R. 4445 to be ``Indian 
country'' would differentiate them from other lands held in 
trust jointly for the Pueblos of New Mexico. Despite the lack 
of specification in this bill that the subject lands are 
``Indian country,'' it is Congress' intent that all lands held 
in trust jointly for the Pueblos of New Mexico are to be 
considered ``Indian country.''

Section 3. Prohibition on gaming

    Section 3 amends Public Law 95-232 to prohibit gaming, as 
defined and regulated by the Indian Gaming Regulatory Act, on 
lands subject to this legislation.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend Public Law 95-232 to repeal 
a restriction on treating as Indian country certain lands held 
in trust for Indian pueblos in New Mexico.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 4445--Indian Pueblo Cultural Center Clarification Act

    H.R. 4445 would eliminate a provision of current law that 
prohibits certain land, located in New Mexico and held in trust 
by the federal government for the New Mexico Pueblos, from 
being considered Indian Country, as defined by federal law. 
Because the federal government is responsible for certain law 
enforcement activities in Indian Country, enacting the 
legislation could increase the workload of certain federal law 
enforcement agencies. Based on information from the Department 
of the Interior, CBO estimates that any costs associated with 
additional law enforcement activities would be insignificant 
and subject to the availability of appropriated funds. Enacting 
H.R. 4445 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures would not apply.
    H.R. 4445 would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA) by 
prohibiting gaming on some land held in trust for the Pueblos 
in New Mexico. Because the Pueblos are not currently operating 
gaming activities on this land nor do they have plans to do so 
in the future, CBO estimates the cost, if any, would be small 
and well below the annual threshold established in UMRA ($70 
million in 2010, adjusted annually for inflation).
    This bill contains no new private-sector mandates as 
defined in UMRA.
    The CBO staff contacts for this estimate are Jeff LaFave 
(for federal costs) and Melissa Merrell (for the state, local, 
and tribal impact). The estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                           Earmark Statement

    H.R. 4445 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as 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 95-232


   AN ACT To provide for the return to the United States of title to 
certain lands conveyed to certain Indian pueblos of New Mexico and for 
  such land to be held in trust by the United States for such tribes.
  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That the 
duly authorized officials of each of the Indian pueblos of New 
Mexico are hereby authorized to convey to the United States all 
the right, title, and interest of such peublos in the land 
located in Albuqerque, County of Bernalillo, State of New 
Mexico, which was conveyed to such pueblos on behalf of the 
United States and the Secretary of the Interior by the 
quitclaim deed executed on June 17, 1969, by the Acting 
Commissioner of Indian Affairs, and by the correction quitclaim 
deed executed July 30, 1970, by the Commissioner of Indian 
Affairs, and which is described as follows:

           *       *       *       *       *       *       *

  (b) Upon approval by the Secretary of the Interior, the 
Secretary shall accept such conveyances on behalf of the United 
States. Such land shall be held in trust jointly for such 
Indian pueblos and shall enjoy the tax-exempt status of other 
trust lands, including exemption from State taxation and 
regulation. [However, such property shall not be ``Indian 
country'' as defined in section 1151 of title 18, United States 
Code.] The Secretary shall cause a description of such trust 
land to be published in the Federal Register.

           *       *       *       *       *       *       *

  (e) Prohibition on Gaming.--Gaming, as defined and regulated 
by the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), 
shall be prohibited on land held in trust pursuant to 
subsection (b).