[House Hearing, 107 Congress]
[From the U.S. Government Printing Office]



 
                   H.R. 103, H.R. 3476 and H.R. 3534
=======================================================================


                          LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             April 17, 2002

                               __________

                           Serial No. 107-105

                               __________

           Printed for the use of the Committee on Resources








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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on April 17, 2002...................................     1

Statement of Members:
    Carson, Hon. Brad, a Representative in Congress from the 
      State of Oklahoma..........................................    91
        Prepared statement on H.R. 3534..........................    92
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534.     2
    Hayworth, Hon. J.D., a Representative in Congress from the 
      State of Arizona...........................................     6
        Prepared statement on H.R. 103...........................     6
    Issa, Hon. Darrell, a Representative in Congress from the 
      State of California........................................     3
        Prepared statement on H.R. 3476..........................     5
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     3
        Prepared statement on H.R. 103...........................    57
        Prepared statement on H.R. 3476..........................     3
        Prepared statement on H.R. 3534..........................    96
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey, Prepared statement on H.R. 3476...   100
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     9
        Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534.     9
    Watkins, Hon. Wes, a Representative in Congress from the 
      State of Oklahoma..........................................    94
        Prepared statement on H.R. 3534..........................    95

Statement of Witnesses:
    Anoatubby, Bill, Governor, The Chickasaw Nation..............    79
        Prepared statement on H.R. 3534..........................    80
    Avery, Jim, Senior Vice President, San Diego Gas & Electric..    38
        Prepared statement on H.R. 3476..........................    39
    Brulte, Hon. Jim, State Senator, The State of California.....     7
        Prepared statement on H.R. 3476..........................     8
    Garcia, Joe A., Tribal Councilman, San Juan Pueblo Indians...    57
        Prepared statement on H.R. 103...........................    59
    George, Keller, President, United South and Eastern Tribes, 
      Inc........................................................    65
        Prepared statement on H.R. 103...........................    68
    Macarro, Mark, Chairman, Pechanga Band of Luiseno Mission 
      Indians....................................................    33
        Prepared statement on H.R. 3476..........................    35
    Marquez, Deron, Chairman, San Manuel Band of Mission Indians.    60
        Prepared statement on H.R. 103...........................    63
    Pyle, Gregory, Chief, Choctaw Nation of Oklahoma.............    81
        Prepared statement on H.R. 3534..........................    82
    Smith, Chad, Principal Chief, The Cherokee Nation............    85
        Prepared statement on H.R. 3534..........................    87
    Smith, Wayne, Deputy Assistant Secretary--Indian Affairs, 
      Bureau of Indian Affairs, U.S. Department of the Interior..    11
        Prepared statement on H.R. 103...........................    28
        Prepared statement on H.R. 3476..........................    12
        Prepared statement on H.R. 3534..........................    31





LEGISLATIVE HEARING ON H.R. 3476, TO PROTECT CERTAIN LANDS HELD IN FEE 
BY THE PECHANGA BAND OF LUISENO MISSION INDIANS FROM CONDEMNATION UNTIL 
 A FINAL DECISION IS MADE BY THE SECRETARY OF THE INTERIOR REGARDING A 
PENDING FEE TO TRUST APPLICATION FOR THAT LAND, AND FOR OTHER PURPOSES; 
 H.R. 103, TO AMEND THE INDIAN GAMING REGULATORY ACT TO PROTECT INDIAN 
TRIBES FROM COERCED LABOR AGREEMENTS; AND H.R. 3534, TO PROVIDE FOR THE 
    SETTLEMENT OF CERTAIN LAND CLAIMS OF THE CHEROKEE, CHOCTAW, AND 
        CHICKASAW NATIONS TO THE ARKANSAS RIVERBED IN OKLAHOMA

                              ----------                              


                       Wednesday, April 17, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Committee met, pursuant to call, at 10 a.m., in room 
1334, Longworth House Office Building, Hon. James V. Hansen 
(Chairman of the Committee) presiding.

  STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    The Chairman. The Committee will come to order. Good 
morning. It is good to see you all here. I notice there is a 
group of folks standing. We are not going to use this bottom 
tier here today. If you want to come up and take it, if you can 
stand the embarrassment of sitting up there, we would love to 
have you come up and take it.
    [Laughter.]
    The Chairman. We normally like to use 1324 for our 
hearings. That is the room on the other end, but there is some 
work being done on it right now, so we all are stuck in this 
little room.
    Today's hearing is on three bills of distinct subject 
matter. The first is H.R. 3476, which protects from 
condemnation certain fee land belonging to the Pechanga Band--
and I will probably foul up all of these words, so just ignore 
that, will you?--of the Luiseno Mission Indians, is that close, 
Darrell?--until the Secretary of the Interior renders a final 
decision on the tribe's pending fee to trust application. H.R. 
3476 was introduced by Congressman Darrell Issa of California. 
Mr. Issa will be testifying on his bill this morning, and we 
thank you for being here.
    The Chairman. The second bill is H.R. 103, introduced by 
Mr. Hayworth. H.R. 103 amends the Indian Gaming Regulatory Act 
to protect tribes from coerced labor agreements in tribal state 
gaming compacts. H.R. 103 has generated some controversy, but 
it raises issues that are important to members on both sides of 
the aisle.
    The Chairman. The third bill, H.R. 3534, was introduced by 
Mr. Carson. H.R. 3534 settles claims asserted by the Cherokee, 
Choctaw, and Chickasaw Nations for damages for the United 
States use or mismanagement of tribal trust resources from the 
Arkansas riverbed. The legislation extinguishes all the 
nations' claims to the riverbed lands at issue, and authorizes 
$41 million in appropriated claim settlement funds to be 
allocated among the Cherokee, Choctaw, and Chickasaw Nations.
    The Chairman. We look forward to some enlightening 
testimony this morning. I understand that one of our witnesses, 
California Senator Brulte, may have an unavoidable scheduling 
conflict requiring his early departure. I hope our other 
witnesses will not object to the Senator moving up in order and 
testifying immediately after Mr. Issa.
    [The prepared statement of Chairman Hansen follows:]

  Statement of The Honorable James V. Hansen, Chairman, Committee on 
                               Resources

    Today's hearing is on three bills of distinct subject matter. The 
first is H.R. 3476, which protects from condemnation certain fee land 
belonging to the Pechanga Band of Luiseno Mission Indians until the 
Secretary of the Interior renders a final decision on the tribe's 
pending fee to trust application. H.R. 3476 was introduced by 
Congressman Darrell Issa of California. Mr. Issa will be testifying on 
his bill this morning and we thank him for being here.
    The second bill is H.R. 103, introduced by Mr. Hayworth. H.R. 103 
amends the Indian Gaming Regulatory Act to protect tribes from coerced 
labor agreements in tribal-state gaming compacts. H.R. 103 has 
generated some controversy, but it raises issues that are important to 
Members on both sides of the aisle.
    The third bill, H.R. 3534, was introduced by Mr. Carson. H.R. 3534 
settles claims asserted by the Cherokee, Choctaw, and Chickasaw Nations 
for damages for the United States' use and mismanagement of tribal 
trust resources from the Arkansas Riverbed. The legislation 
extinguishes all of the Nations' claims to the riverbed lands at issue, 
and authorizes $41 million in appropriated claim settlement funds to be 
allocated among the Cherokee, Choctaw, and Chickasaw Nations.
    We welcome our witnesses and look forward to hearing from you.
                                 ______
                                 
    The Chairman. Excuse me. Mr. Miller, did you have any 
opening comment you wanted to make?
    Mr. Miller. No, sir.
    The Chairman. Mr. Kildee?
    Mr. Kildee. Are we dealing first with H.R. 3476, Mr. 
Chairman?
    The Chairman. Pardon me, sir?
    Mr. Kildee. Are we dealing first with H.R. 3476?
    The Chairman. Yes.
    Mr. Kildee. I would like to make a statement on that, Mr. 
Chairman.
    The Chairman. All right.

   STATEMENT OF THE HON. DALE E. KILDEE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Kildee. Mr. Chairman, I am in strong support of H.R. 
3476, a bill to protect certain lands held in fee by the 
Pechanga Band of Luiseno Mission Indians from condemnation 
proceedings until the Secretary of Interior makes a final 
decision regarding the pending fee to trust application for 
that land.
    Mr. Chairman, since last fall you and I have worked 
together with Chairman Macarro to find a legislative solution 
to protect the land in question from condemnation proceedings 
until the Secretary makes a final decision. Last month the 
Department of Interior gave notice of its intent to take the 
land in trust for the Pechanga Band.
    The Federal administrative process for taking land into 
trust for tribes should continue without interruption. We 
therefore should act swiftly to protect that land from the 
actions of corporations that wish to begin condemnation 
proceedings on the Pechanga ancestral lands.
    Mr. Chairman, I look forward to working with you on this 
and hearing the testimony today.
    [The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                from the State of Michigan, on H.R. 3476

    Mr. Chairman, I am in strong support of H.R. 3476, a bill to 
protect certain lands held in fee by the Pechanga Band of Luiseno 
Mission Indians from condemnation proceedings until the Secretary of 
Interior makes a final decision regarding the pending fee to trust 
application for that land.
    Mr. Chairman, since last fall, you and I have worked together with 
Chairman Macarro to find a legislative solution to protect the land in 
question from condemnation proceedings until the Secretary makes a 
final decision. Last month, the Department of Interior gave notice of 
its intent to take the land in trust for the Pechanga Band.
    The Federal administrative process for taking land into trust for 
tribes should continue without interruption. We, therefore, should act 
swiftly to protect that land from the actions of corporations that wish 
to begin condemnation proceedings on the Pechanga ancestral lands.
    I look forward to hearing the testimony today. Thank you.
                                 ______
                                 
    The Chairman. I thank the Gentleman.
    I ask unanimous consent that following his testimony, the 
Gentleman from California, Mr. Issa, be allowed to sit on the 
dais and participate in the hearing. Is there objection?
    Hearing none, so ordered.
    We are honored to have our colleague from California with 
us, and we will turn the time to him.

 STATEMENT OF HON. DARRELL ISSA, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Issa. Thank you, Mr. Chairman, and thank you for 
convening this hearing. H.R. 3476 will protect 724 acres known 
as the Great Oak Ranch property from condemnation by San Diego 
Gas and Electric until, and only until, a final decision is 
made by Secretary Gale Norton regarding the pending trust 
application.
    Mr. Chairman, just as I was sworn into office, the Pechanga 
Band of Mission Indians purchased the Great Oak Ranch. That is 
not because of any coincidence of my election, but in fact 
because they had sought this land for more than 30 years and 
its owner had sought to retain it, I guess until their death. 
As soon as this property was available, Pechanga paid the full 
list price to purchase this land, and did so because it takes 
land which has previously been missing from reuniting two 
portions of their tribal and now makes them whole. This is a 
perfect example of where land should be placed in trust because 
it makes their reservation contiguous.
    Unfortunately, the celebration surrounding the purchase of 
land was short-lived. On March 23, 2001, San Diego Gas & 
Electric released a map proposing 17 different alignments for a 
31-mile stretch of what is now a 500,000-volt line known as the 
Valley-Rainbow transmission line. Unfortunately, one of the 
alignments goes through the heart of the Great Oak Ranch 
property and the city of Temecula. The city of Temecula has 
objected to this alignment, as have the Pechanga Band of 
Indians.
    I think it is best to try to shape if I can for you the 
nature of this land in trust request. If this were the 
preferred route that went through the Pechanga Reservation, I 
certainly would be looking differently upon it. It is not. As a 
matter of fact, the San Diego Gas & Electric, in meetings 
directly with me, has said that the preferred route is an 
alignment which is presently not available to them, because 
what they would like to do is either be just on Federal 
property, part of a national forest, or on existing land, land 
in trust of the Pechanga Indians. Negotiations have been 
ongoing on that alignment, and I would expect them to continue.
    So it was with more than a little bit of consternation when 
I discovered that steadily San Diego Gas & Electric was 
opposing this land being placed in trust, and intends to appeal 
the Notice of Decision. When I asked why they would do so, I 
received no official answer. However, based on earlier 
discussions, it is very clear that this piece of land 
represents, appropriate to San Diego Gas & Electric but 
inappropriate in my opinion, leverage to get a preferred 
alignment.
    Additionally, it has come to my attention that one of the 
alignments, and you may hear about it today, which I call the 
western alignment, which goes through national forest lands, 
was never submitted, although another organization wishing to 
do a water, hydroelectric project, has requested that 
alignment. When asked why San Diego Gas & Electric did not 
choose to request that one, they said although it was a good 
alignment, it was difficult, and the water project would not go 
through.
    Today you will also hear from State Senator Brulte, who not 
only is a State Senator and former State Assemblyman, but who 
has been working on these issues for his entire tenure in the 
State House.
    Mr. Chairman, I would ask that my entire statement be put 
in the record, and I will abbreviate it in hopes that I be able 
to join you on the dais and witness if there are any new 
developments.
    [The prepared statement of Mr. Issa follows:]

   Statement of The Honorable Darrell E. Issa, a a Representative in 
          Congress from the State of California, on H.R. 3476

    Mr. Chairman, I want to thank you for holding a hearing on H.R. 
3476, which will protect a 724-acre parcel of land known as the Great 
Oak Ranch Property from condemnation by San Diego Gas and Electric 
until a final decision is made by Secretary Gale Norton regarding their 
pending trust application.
    First, I want to give you a brief background on why I introduced 
this bill. Last April, I was approached by the Pechanga Band of Luiseno 
Mission Indians concerning a developing situation involving land they 
recently purchased for the purpose of making their fragmented 
reservation whole again.
    The celebration surrounding the purchase of this property was 
short-lived. On March 23, 2001, San Diego Gas & Electric (SDG&E) 
released a map proposing 17 different alignments for a thirty-one mile, 
500,000-volt Valley-Rainbow transmission line project. Unfortunately, 
one alignment goes through the heart of the Great Oak Ranch Property. 
The City of Temecula has come out in opposition to this alignment and 
this project, questioning its need and justification.
    The interesting thing is that the Great Oak Ranch Property 
alignment selected is not SDG&E's preferred route. The preferred route 
is intended to go around the periphery of the existing reservation and 
SDG&E is using a threat of a transmission line through the Great Oak 
Ranch Property to gain an unfair advantage against the tribe into 
granting an easement.
    On March 21, 2002, the Department of Interior registered a Notice 
of Decision to accept the Great Oak Ranch Property in trust. That same 
day, a SDG&E spokesperson stated in a local paper that they would plan 
to appeal this Notice of Decision. If this happens, an appeal could 
potentially delay the Pechanga Indians' land into trust application for 
years, with the threat of condemnation hanging over them the entire 
time.
    I respect the committee's stance that placing land into trust 
should be done administratively, based on the application's merits, 
with the benefit of an environmental assessment and community input. My 
bill simply allows the Pechanga Indians application to continue through 
the administrative process and prevent any encumbrance from being 
placed on the land until a final decision is issued by the Secretary of 
Interior.
    The Pechanga reservation has received overwhelming public support 
regarding their attempts to protect the Great Oak Ranch property from 
condemnation. The city councils, state legislators, such as State 
Senator Jim Brulte, who will be testifying shortly, and members of 
Congress, including Congresswoman Mary Bono and Congressman Ken 
Calvert, a distinguished member of this committee, have all voiced or 
written support for this endeavor. Mr. Chairman, I would like to submit 
for the record a packet of letters in support of Pechanga's land into 
trust application. Many of these letters are from California State 
Assembly Members, demonstrating how important this application is to 
the state.
    Mr. Chairman, H.R. 3476 is a good bill. It will protect the 
Pechanga Indians' land from condemnation, while Secretary Norton 
decides on the application. Having finally connecting the two parcels 
of the reservation with the Great Oak Ranch Property, the Pechanga 
Indians shouldn't have to worry about the land being condemned and 
divided again.
    Thank you again for the opportunity to testify before for your 
committee. I stand ready to answer any questions that you may have.
                                 ______
                                 
    The Chairman. Without objection, and all the testimony will 
be put in in its entirety, if people would like to speak off 
the cuff.
    I appreciate the Gentleman. Do we have any questions for 
our colleague from California? Mr. Miller?
    Mr. Miller. I have no questions. I am obviously in strong 
support of the legislation. I thought we were going to get this 
done last year, and it didn't happen. Hopefully we will have 
the success this year. Thank you for your testimony, and I look 
forward to Senator Brulte's testimony.
    The Chairman. I thank the Gentleman from California.
    The Gentleman from Arizona, Mr. J.D. Hayworth, has done us 
an exceptionally good job on these matters, Indian matters, and 
J.D. happens to be our expert on it. I have a military issue I 
have to take care of, so I am going to turn the chair over to 
Mr. Hayworth, who does such an admirable job in this area, and 
ask our friend from California to please join us on the dais.
    Mr. Issa. Thank you, Mr. Chairman.
    The Chairman. And thanks to all the witnesses. And let me 
reiterate for you folks standing there, we are not going to use 
this bottom tier. If you are so inclined, come on up and sit 
there. If it embarrasses you to death, so be it. We go through 
that every day.
    [Laughter.]

   STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Hayworth. [Presiding.] Mr. Chairman, thank you, and I 
hope the embarrassment does not extend to yielding the gavel to 
me.
    We also welcome the Ranking Member of the Full Committee, 
Mr. Rahall. Thank you for joining us this morning. And for 
those who join us on the lower dais, I think it lends credence 
to the notion that this is in fact the people's House.
    Mr. Issa, of course you are free to come join us here, as 
well, and we thank you for that. In fact, unanimous consent 
came earlier. It pays to be on time, Mr. Rahall. Don't start.
    Now, commensurate with staying on time, we will move now to 
Panel 2, and that means we call on our friend, Wayne Smith, the 
Deputy Assistant Secretary of Indian Affairs for the Bureau of 
Indian Affairs.
    [The prepared statement of Mr. Hayworth follows:]

Statement of The Honorable J.D. Hayworth, a Representative in Congress 
                 from the State of Arizona, on H.R. 103

    H.R. 103 amends the Indian Gaming Regulatory Act to prohibit 
tribal-state gaming compacts from including or being conditioned on any 
agreement containing any provision relating to labor terms or 
conditions for employees of tribally owned businesses located on Indian 
lands. The legislation voids any such provisions that have been entered 
into before, on, or after the legislation's enactment.
    In 1998, the California Supreme Court overturned Proposition 5, 
which confirmed California tribes' right to gaming enterprises. As a 
result, the United States attorney declared that all tribal gaming in 
the state would cease unless Tribal-State compacts were signed by 
October 13, 1999. Faced with the prospect that their most valuable 
economic assets (which help fund health care facilities, education 
facilities, and other social and economic endeavors), would be shut 
down, 61 California tribes were essentially coerced into signing gaming 
compacts with Governor Gray Davis that carried separate labor 
agreements. It was made very clear by Governor Davis that a gaming 
compact would not be signed without a labor agreement.
    As a matter of Federal law, the National Labor Relations Act does 
not apply to Indian tribes because they are recognized as sovereign 
governmental entities under the Constitution. Nevertheless, under the 
time-sensitive deadline set in California, tribes in that state were 
forced to cede their sovereignty--their constitutional rights--to the 
State of California in order to save their enterprises from being shut 
down.
    The issue here is not whether tribes should unionize their gaming 
facilities, but who should make that decision. Should it be up to the 
sovereign tribal governments, or should it be up to the states or the 
Federal Government? The U.S. Constitution states that it is the tribes, 
as sovereign government entities, that have the right to make this 
decision.
    Recently, referring to the San Juan Pueblo of New Mexico tribe's 
right-to-work ordinance, the 10th U.S. Circuit Court of Appeals stated 
that the ordinance was ``clearly an exercise of sovereign authority 
over economic transactions on the reservation.''
    H.R. 103, the Tribal Sovereignty Protection Act, will ensure that 
states do not force Indian tribes to unionize their casino employees as 
a condition of a tribal-state gaming compact made under the Indian 
Gaming Regulatory Act. The bill will allow sovereign tribes to have the 
freedom to determine their own labor policies, rather than be 
blackmailed by the state and/or Federal Government.
                                 ______
                                 
    Mr. Hayworth. Oh, I beg your pardon. There has been a late 
change, speaking of time. Forgive me, Wayne. We will bring you 
up all in due time, but mindful of the schedule that Senator 
Brulte must keep to return to serve the people in Sacramento 
and the State of California, we welcome him to the table for 
his testimony. So, Senator Brulte, welcome, and again, your 
entire statement will be put into the record and you may 
summarize in the time for which we recognize you. Welcome.

    STATEMENT OF HON. JAMES BRULTE, STATE SENATOR, STATE OF 
                           CALIFORNIA

    Mr. Brulte. Thank you, Mr. Chairman and members, and thank 
you for the opportunity to testify on this legislation today. I 
am here to support H.R. 3476, and the reason is quite simple. A 
vast majority of State and local interests support the 
protection of the Great Oak Ranch and its return to the 
Pechanga Reservation. This support is demonstrated by a list 
and a stack of letters that I would like to provide the 
Committee today.
    I think the depth and breadth of the support here is a 
strong indication of the uniqueness of the property in question 
and the need for this legislation. Later in this hearing 
Chairman Macarro will provide you a moving and powerful story 
about this land, a particular tree and its cultural 
significance. It is a story that he has shared quite 
effectively throughout Riverside County and the corridors of 
our State Capitol. It is a story of pictures, one of which is 
here today, this 1500-year-old tree with its 26-foot diameter 
trunk.
    I am here today on behalf of myself and many State 
legislators and local officials to ask the Committee to take 
favorable action on the bill introduced by Congressman Issa and 
cosponsored by Congresswoman Bono, so that our efforts to 
protect the Great Oak Ranch are successful.
    H.R. 3476 does not impede California's right to act through 
its Public Utilities Commission to determine the need for 
better electrical transmission capability. H.R. 3476 does not 
take a position on the March 2002 position of the United States 
Department of Interior to take this land into trust. H.R. 3476 
simply calls a time out in the condemnation process until the 
United States Department of Interior makes a final 
determination on taking that particular piece of land into 
trust.
    Mr. Chairman, thank you for allowing me the opportunity to 
speak, and particularly for allowing me the opportunity to 
speak out of order, and I will provide my written testimony to 
the Committee.
    [The prepared statement of Mr. Brulte follows:]

  Testimony of The Honorable James Brulte, Senator, California State 
                         Senate--31st District

    Mr. Chairman and Members, thank you for the opportunity to testify 
today on this important legislation. I also want to publicly thank our 
Congressman, Darrell Issa, for his leadership role on this matter.
    I am here in support of H.R. 3476. My message to you is simple. A 
vast majority of state and local interests support protection of the 
Great Oak Ranch and its return to the Pechanga Reservation. This 
support is demonstrated by this list and the stack of letters I am 
providing the committee.
    I do not need to tell members of this committee how unusual it is 
to have such strong local support for the protection of lands on behalf 
of a tribe. I think the depth and breadth of the support here is a 
strong indication of the uniqueness of the property in question and the 
need for this legislation.
    Chairman Macarro has presented to you the moving and powerful story 
of this land, its tree, and its cultural significance. It's a story 
that he has shared quite effectively throughout Riverside County and in 
the corridors of our state capitol. It's a story with pictures, one in 
particular, that he has shared with you today--that 1500-year old tree 
with its 26-foot diameter trunk. As incredible as that picture is, it 
still doesn't do the tree justice. The next time you're in our part of 
the world, I hope you will contact me or Chairman Macarro and arrange a 
visit so you can stand under the tree and really grasp its grandeur.
    I am here on behalf of myself and many other state and local 
officials to ask the committee to take favorable action on the bill 
introduced by Congressman Issa and co-sponsored by Congresswoman Bono 
so that our efforts to protect the Great Oak Ranch are successful.
    It should be no surprise to anyone here today that as a state 
senator, I am quite partial to the final amendment in the Bill of 
Rights. The 10th Amendment is the foundation of our Federalist form of 
government and is what protects the notion that what might be good for 
Californians isn't always the best solution for Arizonians--and vice 
versa.
    I'd be remiss if I did not thank those of you who first looked at 
this legislation with a skeptical eye and through the prism of the 10th 
Amendment. However, as demonstrated by the chart on the easel and by my 
attendance at this hearing today, rest assured that the action taken by 
you and the Department of Interior is not only appropriate in the eyes 
of local officials, but, in my opinion, is required.
    As a legislator, I could give you a very technical overview about 
Section 625 of the California Public Utilities Code, which has been 
cited here today. But, in a nutshell, SDG&E's efforts to condemn this 
property before the CPUC has made a decision on the necessity of the 
line is why we are here today and why this legislation is necessary. 
But rather than get into a detailed discussion about Public Utilities 
Code Section 625, I am submitting a briefing on the issue for the 
record.
    The bottom line is that the community supports the protection of 
the Great Oak Ranch and this legislation. The Issa/Bono bill tracks our 
state law in the sense it gives the benefit of the doubt to the private 
property owner and puts the burden of proof on the utility company.
    This legislation merely protects the status quo with respect to 
this particular piece of land that the Federal Government has deemed 
worthy of being taken into Federal trust on behalf of the Pechanga 
Tribe.
    Mr. Chairman, I again thank you for the opportunity to testify 
today and I again urge the Committee's favorable and expeditious action 
on H.R. 3476. I look forward to answering the committee's questions.
                                 ______
                                 
    Mr. Hayworth. And, Senator, we thank you for that, and we 
thank the other witnesses and the Full Committee for the 
accommodation to allow you to appear at this point.
    If you could, briefly summarize and just reaffirm for the 
Committee the benefits, in your opinion, that the transfer of 
the Great Oak Ranch into trust would bring to the surrounding 
community.
    Mr. Brulte. Well, this is a historic growth. We have so 
much land in California. Much of it is being taken into 
development. This is a piece of land that divides a 
reservation. It is land that is part of the ancestral home of 
the Pechanga Indian Nation. It is land that ought to be saved, 
set apart, and not devastated by any type of development, by 
any entity whatsoever.
    Mr. Hayworth. Senator, what are the adverse impacts to the 
county or State resulting from removal of this land from the 
tax rolls? Are there any adverse impacts, in your estimation?
    Mr. Brulte. No, the tax rate on this property isn't that 
great to begin with, but the State of California is quite 
capable of dealing with any problem that might be created by 
that.
    Mr. Hayworth. It has been argued by some this legislation 
is a Federal intrusion on the right of a State-regulated 
utility to condemn land. What is your response to that 
accusation?
    Mr. Brulte. Well, the Federal Government is charged with 
the responsibility of dealing with other sovereign entities, in 
this case the sovereign Nation of the Pechanga Indians. Our 
California Public Utilities Commission has not ruled today on 
whether or not this land should be condemned and taken into 
action. This simply calls a time out in the process pending a 
final determination by the Federal Government.
    Mr. Hayworth. Senator, I thank you for those answers.
    Any questions from the minority side? The Ranking Member.

 STATEMENT OF THE HON. NICK J. RAHALL II, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman. I have no questions, 
and certainly no objection to the bill. I just wanted to make a 
comment here that we have seen Indian sacred sites around the 
country being damaged or destroyed at quite an alarming rate. 
In this regard, it is my opinion we do need a nationwide bill 
to address protection of Indian sacred sites. I do have 
legislation that would provide that nationwide protection, and 
we are working very closely with the tribes, because it is 
their feeling that we need such a Federal law as well.
    But in this particular instance there is this 1500-year-old 
tree on land that the Pechanga bought, and it is almost 
humorous to think that a Federal law may be needed, that we may 
need to pass a Federal law to buy the tree a little time, as 
you have just stated, while the BIA decides on the tribe's 
trust application. We can only imagine what this tree has been 
through over the hundreds of years it has stood there, and now 
its fate may be in the hands of the BIA's ability to make a 
quick decision. This could be the most sacred time of this 
tree's life.
    I do commend the Gentleman from California, my good friend, 
Mr. Issa, for introducing this legislation. Let's just hope and 
pray that the BIA will work to bring the land into trust status 
for protection in some sort of expeditious fashion, if that is 
possible.
    I yield my time back, Mr. Chairman. Thank you.

   Statement of The Honorable Nick J. Rahall, II, Ranking Democrat, 
      Committee on Resources, on H.R. 3476, H.R. 103 and H.R. 3534

    Mr. Chairman, there are three bills on the schedule this morning 
and it is my understanding we will be allowed an opening statement on 
each one.
    Mr. Miller will address H.R. 103, Mr. Carson his bill, H.R. 3534 
and I will speak to H.R. 3476 for the time being.
    This legislation by my good friend, Darrell Issa, would protect 
land containing a valuable piece of history and sacred sites of the 
Pechanga Tribe from possible condemnation. The Tribe has bought land in 
its ancestral area and has an application pending for it to be brought 
into trust status and it should be.
    Indian sacred sites are being damaged and destroyed at an alarming 
rate all across our nation. I believe we need to pass legislation to 
address the problem nationwide and am working with tribes on such a 
bill.
    In this particular instance, there is a 1,500 year old tree on the 
land the Pechanga bought. It is almost humorous to think that a Federal 
law may need to be passed to buy the tree a little time while BIA 
decides on the tribe's trust application.
    Imagine what that tree has been through over the hundreds of years 
it has stood there--and now--its fate may be in the hands of the BIA's 
ability to make a quick decision,
    This could be the scariest time of this tree's life. Let us just 
hope and pray that the BIA will work to bring the land into trust 
status for protection in an expeditious fashion.
    As I noted, George Miller will have some comments to make on H.R. 
103 when it is brought up for consideration.
    I would simply observe that the bill an anti-labor, anti-worker, 
and a not even thinly disguised assault on labor unions. No surprise 
there ``
    The surprise is, however, that it has been dressed up to look 
something like a pro-tribal sovereignty and that is just a bad 
political ploy.
    I welcome our witnesses and I thank them for traveling here.
                                 ______
                                 
    Mr. Hayworth. Thank you, Mr. Rahall.
    Anyone on this side with other questions?
    The Gentleman from California, Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman. I just want to say, 
Jim, welcome to the Committee, and thank you for all your work 
on behalf of these lands. You and Congressman Issa have done a 
great job in seeking to protect these lands, and work out all 
the intricacies and the nervousness of the utilities and 
everyone else.
    When we think of what is happening in some of the oak 
forests in northern California that are succumbing to sudden 
oak disease and we are losing magnificent trees, this may be 
more important than we thought when we originally started to 
save this tree and the surrounding environment. So thank you 
for your effort, and thank you for making the effort to come 
back and testify on the bill.
    Mr. Brulte. Thank you, sir.
    Mr. Hayworth. Our friend from California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    Senator Brulte, would it be fair to say that the question 
of whether or not this power line is needed and where the 
appropriate alignments are to be placed is a State issue, and 
whether or not this particular one of 17 stated alignments is 
available is a Federal issue? Would you say that is sort of the 
balance we are considering here today?
    Mr. Brulte. Sure, and the California Public Utilities 
Commission, if and when this bill is passed, will still be 
charged with the responsibility of determining whether or not 
the line is needed, and San Diego Gas & Electric will still 
have condemnation rights everywhere but this land. So I don't 
think States' rights are being impeded at all. If it were, 
Senator Burton, my majority party counterpart, and local 
elected officials numbering in the hundreds, wouldn't be in 
support of this legislation.
    Mr. Issa. Senator Brulte, just one last follow-up. Would my 
observation be correct that there is virtually no support on 
either side of the aisle in California, in the Senate, the 
Assembly, or local, in the surrounding areas, for this project 
at this time, and certainly this alignment?
    Mr. Brulte. I am not aware of any support for it, 
Congressman Issa.
    Mr. Issa. Thank you, Senator. Thank you for being here 
today. I realize this was quite a detour for you.
    Mr. Brulte. Well, thank you very much.
    Mr. Hayworth. Thank you, Mr. Issa.
    The Gentleman from Michigan, Mr. Kildee.
    Mr. Kildee. Just briefly, Senator, having served in my 
State Senate, I am always pleased when I find a representative 
of one of our sovereign States being sensitive to the concerns 
of our sovereign native tribes, and I just commend you for your 
position and commend you for testifying today.
    Mr. Brulte. Thank you, sir.
    Mr. Kildee. Thank you very much.
    Mr. Hayworth. And I thank my friend from Michigan for 
waxing nostalgic and hopeful all in one great statement.
    If there are no other questions or comments for our 
witness, again, Senator Brulte, thank you, and safe travels 
back to your home State and up to Sacramento. We appreciate you 
being here.
    And now a fellow who warmed up for moving front and center 
is now prepared to do that, and that again is the 
aforementioned Wayne Smith, the Deputy Assistant Secretary of 
Indian Affairs from the Bureau of Indian Affairs. Good morning, 
Mr. Smith. We apologize for the false start earlier, but we 
trust you are ready to offer testimony on these three pieces of 
legislation, and we welcome you.

 STATEMENT OF WAYNE SMITH, DEPUTY ASSISTANT SECRETARY, INDIAN 
 AFFAIRS, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

    Mr. Smith. Good morning, Mr. Chairman. Thank you for 
allowing me to be here. It is always fun to testify before this 
Committee. As a matter of process, do you want me to testify to 
all three bills at this time, or just the bill that is being 
heard at this time?
    Mr. Hayworth. We would like you to go for it. Maybe I 
shouldn't use the term ``trifecta'' but all three bills.
    Mr. Smith. Yes, that is good. I have never done very well 
at the horse track, so I won't do that.
    I thought in the interest of time and brevity I will leave 
some of the background information out of all three of the 
bills, because there are Gentlemen that will testify after me 
that are much more knowledgeable about those than I am. So what 
I would like to do is talk more about either the policies or 
the law that affects any one of these three bills.
    In terms of the instant bill, as to the Pechanga 
Reservation, on March 21st of 2002 the Acting Regional Director 
of the BIA's Pacific Region issued a Notice of Decision to 
accept the ranch property into trust status pursuant to the 
Indian Land Consolidation Act. A copy of that notice is 
attached to my complete testimony, for all of you gentlemen 
here today.
    Under 25 C.F.R. Part 151, unless an acquisition is 
mandated, the BIA must consider the following factors before 
determining to take the land into trust. One is the tribe's 
need for additional land. Two is the purpose for which the land 
will be used. Three is the impact on the State and its 
political subdivisions resulting from the removal of the land 
from the tax rolls. Four is jurisdictional problems, potential 
conflict on the land which may arise. Five is whether the BIA 
is equipped to discharge the additional responsibilities 
resulting from the acquisition of the land. And, six, whether 
or not contaminants or other hazardous material may be present 
on the property.
    The BIA found in its decision that the tribe did have need 
for the additional land; that the land would be used for 
religious and cultural preservation purposes; that there would 
be no adverse impact on the local government's financial 
situation; that there would be no jurisdictional problems or 
potential conflicts after the transfer of the title into trust; 
that we are indeed equipped to administer additional 
responsibilities resulting from the acquisition; and that there 
are no contaminants or other hazardous substances present on 
the property.
    This decision, however, is not a final decision, a final 
agency action as defined by the Administrative Procedures Act, 
and any party who is adversely affected may file an appeal of a 
Notice of Decision with the Interior Board of Indian Appeals 
within 30 days of the initial decision. Upon the conclusion of 
the 30-day period, unless there is an appeal to the IBIA, the 
Regional Director will publish notice of final agency action 
pursuant to 25 C.F.R. 151.12(b), to allow for 30-day judicial 
review.
    The Department believes that in this case the procedures 
set out in 25 C.F.R. Part 151 should continue to be followed. 
We recognize Congress has the plenary power to take the land 
into trust on behalf of the tribe. However, we remain seriously 
concerned with congressional intervention once the 
administrative process has been initiated.
    This concludes my testimony on this bill. If you would like 
to ask me some questions, I would be happy, before we move to 
the next bill, Mr. Chairman.
    [The prepared statement of Mr. Smith follows:]

 Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, 
             U.S. Department of the Interior, on H.R. 3476

    Good morning, Mr. Chairman, Members of the Committee. I would first 
like to take the opportunity to thank you for the invitation to present 
testimony today on H.R. 3476, a bill to protect certain land located in 
Riverside County, California, that is held in fee simple by the 
Pechanga Band of Luiseno Mission Indians (``Tribe'') from condemnation 
until a final decision is made by the Secretary of the Interior on a 
pending application for trust status of the lands.
BACKGROUND
    The Pechanga Reservation was established by Executive Order on June 
27, 1882, in what is now Riverside County, California and currently 
consists of 4,396 acres of trust lands. In 2001, the Pechanga Band of 
Luiseno Indians acquired a parcel of land in fee simple consisting of 
697.35 acres of land and known as the Great Oak Ranch (``Ranch''). In 
June 2001, the Tribe applied to the Department's Bureau of Indian 
Affairs (``BIA'') to have the land placed into trust status, pursuant 
to the provisions of 25 CFR, Part 151.
    The Ranch is contiguous to the Pechanga Indian Reservation and is 
home to the largest natural-growing, indigenous live oak tree in the 
United States, estimated to be over 1,500 years old. The tree serves as 
a spiritual place and has been used by the Tribe for generations for 
ceremonies.
    Additionally, there are other cultural resources located within the 
Ranch property which are of importance to the Tribe. There are seven 
archaeological sites located on the property, and along with the tree, 
the tract is eligible for inclusion on the National Register of 
Historic Places. The Tribe's stated purpose for acquiring the ranch is 
to preserve and protect the cultural resources of the Luiseno people.
CURRENT SITUATION
    On March 21, 2002, the Acting Regional Director of the BIA Pacific 
Region issued a Notice of Decision to accept the Ranch property into 
trust status pursuant to the Indian Land Consolidation Act of 1983 (25 
U.S.C. 2202 et seq.). A copy of the Notice of Decision is attached.
    Under 25 CFR, Part 151, unless an acquisition is mandated, the BIA 
must consider the following factors before determining to take land 
into trust:
    1. Lthe Tribe's need for additional land;
    2. Lthe purpose for which the land will be used;
    3. Lthe impact on the State and its political subdivisions 
resulting from the removal of the land from the tax rolls;
    4. Ljurisdictional problems and potential conflict of land use 
which may arise;
    5. Lwhether the BIA is equipped to discharge the additional 
responsibilities resulting from the acquisition of the land;
    6. Lwhether or not contaminants or other hazardous materials may be 
present on the property.
    The BIA found that the tribe did have the need for additional land; 
that the land would be used for religious and cultural preservation 
purposes; that there would be no adverse impact on the local 
governmental financial situation; that there would be no jurisdictional 
problems or potential conflicts after the transfer of the title into 
trust; that BIA is equipped to administer additional responsibilities 
resulting from the acquisition; and that there were no contaminants or 
hazardous substances present on the property.
    This decision is not a final agency action as defined by the 
Administrative Procedures Act, but any party who is adversely affected 
may file an appeal of the Notice of Decision with the Interior Board of 
Indian Appeals (``IBIA'') within thirty days of the initial decision.
    Upon the conclusion of the thirty day period, unless there is an 
appeal to the to the IBIA, the Regional Director will publish notice of 
final agency action pursuant to 25 CFR 151.12(b), to allow 30 days for 
judicial review.
    Lands held in trust by the United States for the benefit of Indian 
tribes enjoy a number of protections that land held in fee simple 
status do not. Lands held in trust are removed from local tax rolls. 
Additionally, lands held in trust may not be condemned without 
agreement of the Indian tribe involved and the lands are exempt from 
certain zoning laws.
    The procedure for taking land into trust set out at 25 CFR, Part 
151, sets high standards tribes must meet before the Department of 
Interior determines to take property into trust. It is a fair process 
which provides for a comment period during which affected parties may 
provide information to the Bureau of Indian Affairs regarding positive 
or adverse effects the decision may have, and it provides an 
opportunity for these parties to appeal a decision which is adverse to 
their interests.
    The Department believes that in this case, the procedure set out in 
25 CFR, Part 151 should continue to be followed. We recognize Congress 
has the plenary power to take the land into trust on behalf of a tribe. 
We remain seriously concerned, however, with congressional intervention 
once the administrative process has been initiated.
    This concludes my personal statement. I would be pleased to answer 
any questions you may have.
                                 ______
                                 
    [Attachments to Mr. Smith's statement follow:]



    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    
    Mr. Hayworth. Questions on H.R. 3476? Anyone have a 
question? The Gentleman from California.
    Mr. Issa. Thank you, Mr. Chairman. I really just have the 
one.
    In making the finding, you laid out the elements. The fact 
that this rejoins their reservation into a contiguous single 
reservation, was that a major part of the consideration or at 
least a part of the consideration?
    Mr. Smith. It is certainly a part of the consideration, 
absolutely.
    Mr. Issa. And is this almost universally, as long as the 
other elements of not having hazardous waste and so on, one of 
the cases in which if you are rejoining a reservation that is 
split, that you almost always come in on the side of rejoining 
reservations? Is that pretty much a universal stand that the 
bureau tries to do?
    Mr. Smith. If all the standards that I read out, that I 
just read, are followed or found, certainly trying to restore a 
reservation would be a policy concern, I guess, of this 
department.
    Mr. Issa. And, last, in your due diligence you did look at 
and were made fully aware of San Diego Gas & Electric's 
position of potentially this being one of 17 alignments?
    Mr. Smith. Yes.
    Mr. Issa. So although they undoubtedly will make their 
point known again here today, this was something that was fully 
considered and by the action was found not to be a compelling 
issue that would stop this from being placed in trust?
    Mr. Smith. I would phrase it more that our responsibility 
is to the Indian nation, and we looked under these regulations 
as to what is best for the Indian nation under these 
regulations. While we were aware of the power lines and so 
forth, our real concern and the things that we look at are 
those that I enunciated in my testimony.
    Mr. Issa. Thank you very much.
    Mr. Hayworth. Thank you, Mr. Issa.
    Questions on the minority side? The Gentleman from 
Michigan, Mr. Kildee.
    Mr. Kildee. Mr. Smith, generally the criteria you use for 
taking land into the trust, those criteria do apply to this 
particular piece of land?
    Mr. Smith. Absolutely.
    Mr. Kildee. And do you believe, then, that the BIA should 
take this particular land into trust?
    Mr. Smith. Yes.
    Mr. Kildee. Thank you very much.
    Mr. Hayworth. Thank you, Mr. Kildee.
    The Chair has a couple of questions, Mr. Smith. On March 
21, 2002, the administration released a Notice of Decision to 
take the Great Oak Ranch property into trust. Would that 
notice, in your opinion, would that Notice of Decision negate 
the need for H.R. 3476?
    Mr. Smith. We believe that the process that we have in 
place right now is adequate to sort of protect this piece of 
property. We would like to see the administrative process go 
forward, and we think that there is adequate appeal, judicial 
appeal, for that. I recognize you have plenary powers. I would 
be very cautious to say that it negates the need for you 
gentlemen to do anything.
    Mr. Hayworth. And we thank you for being respectful of the 
separation of powers. The diplomacy, Wayne, with which you 
replied to that, is great.
    Now, a chance to analyze another assertion that is often 
made, the argument that H.R. 3476 is a Federal intrusion on the 
right of a State to condemn land. What is your response to that 
assertion?
    Mr. Smith. Well, again, we have a process, the fee to trust 
process, that is actually a Federal process, and certainly that 
process would preempt, if you will, a State's ability to 
condemn land. So, again, I would refer to my first answer and 
say that I think the process we have already is based on the 
statute and based on regulations, and it certainly is a 
preemption of some of the State's ability to do things, but it 
has a complete judicial review and we are more than happy to 
let that judicial review run.
    Mr. Hayworth. Thank you, sir.
    I believe the Gentleman from California, Mr. Miller, had a 
couple of questions.
    Mr. Miller. I really had no questions. I just wanted to 
make sure that we understood--I appreciate there are problems 
with the testimony, but it is the position, your position, that 
this land should be taken into trust?
    Mr. Smith. That is correct.
    Mr. Miller. Thank you.
    Mr. Hayworth. Reaffirmed and amplified through testimony 
again. Thank you, Mr. Miller.
    Any questions from the majority side? Any others from the 
minority side? Oh, the Gentleman from Montana.
    Mr. Rehberg. Thank you, Mr. Chairman. It is a pretty simple 
question. I was just trying to work on these acreages, and one 
briefing that I have says it is 4,396 acres of trust land and 
697.35 of the Great Oak Ranch, and the other briefing says 
3,163 acres and 724 acres in the Great Oak Ranch. Which is it?
    Mr. Smith. From my recollection of what we put down in my 
testimony, it is 4,396 acres of trust land, with 695.35 as the 
current Great Oak Ranch that is being put into trust.
    Mr. Rehberg. OK. Thank you.
    Mr. Smith. I was just informed by my learned counsel that 
is correct.
    Mr. Rehberg. That your numbers are correct?
    Mr. Smith. Yes.
    Mr. Rehberg. Our other briefing is incorrect? OK, thank 
you.
    Mr. Smith. Again, I hesitate to say you are incorrect. I 
just say mine are correct.
    [Laughter.]
    Mr. Hayworth. The Gentleman from California, Mr. Issa, 
wanted to make a point.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Smith, just one last follow-up. This legislation, H.R. 
3476, am I to understand, though, it in no way ties the hands 
or does anything to limit the execution by the Bureau of Indian 
Affairs in reaching a final decision. Is that correct?
    Mr. Smith. Yes. The process that we have in place is going 
to go forward regardless of this bill.
    Mr. Issa. OK, because in crafting the bill we wanted to be 
respectful of your separation of powers and the job that you 
are already tasked by the Congress to do, and do very well. So 
hopefully we have constructed this in a way that, although it 
protects the tribe in the interim, it in no way would limit 
your final decision, whatever it may be.
    Mr. Smith. That is correct.
    Mr. Issa. Thank you. Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you, Mr. Issa.
    Any other questions or comments from the minority side on 
this particular piece of legislation? If not, then, Mr. Smith, 
if you would address your perspective and comments on H.R. 103.
    Mr. Smith. OK. Actually, I will be really brief on this 
bill. This bill, H.R. 103, is the Tribal Sovereignty Protection 
Act, whose purpose is to ensure that Indian tribes are not 
forced to provide access to or otherwise unionize their casino 
employees as a condition of obtaining Federally approved 
Tribal-State Class III gaming compacts under the Indian Gaming 
Regulatory Act or IGRA.
    The bill in its present form amends the Act by adding a 
subsection which would prohibit the inclusion of provisions 
pertaining to labor agreements in Class III gaming compacts. It 
also provides that such provisions in existing compacts shall 
be severed and considered null and void.
    This legislation, if enacted, would affect the tribal-State 
compacting process in different ways from State to State. The 
Department of Interior is not prepared to speculate at this 
time on how those effects will change the balance of 
negotiations between the tribes and the States.
    The Department is, however, concerned about Section 
11(d)(3)(D) of the bill. It would reach back into existing 
compacts that have already been agreed to by States and tribes 
and approved by the Department. This would have immediate 
impacts on existing labor agreements, and could raise a number 
of unforeseeable contract issues the Department is unprepared 
to discuss at this time.
    If you have any questions, I would be happy to answer them.
    [The prepared statement of Mr. Smith follows:]

 Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, 
              U.S. Department of the Interior, on H.R. 103

    Good morning, Mr. Chairman and Members of the Committee. I am 
pleased to be here today to provide testimony on H.R. 103, the ``Tribal 
Sovereignty Protection Act,'' whose purpose is to ensure that Indian 
tribes are not forced to provide access to or otherwise unionize their 
casino employees as a condition of obtaining a Federally approved 
Tribal-State Class III gaming compact under the Indian Gaming 
Regulatory Act (IGRA).
    The bill, in its present form, amends Section 11(d)(3) of IGRA, 25 
U.S.C. 2710(d)(3), by adding a subsection which would prohibit the 
inclusion of provisions pertaining to labor agreements in Class III 
gaming compacts. It also provides that such provisions in existing 
compacts shall be severed and considered null and void.
    This legislation, if enacted, would affect the Tribal-State 
compacting process in different ways from state to state. The 
Department of the Interior is not prepared to speculate on how those 
effects will change the balance of negotiations between the Tribes and 
the States.
    The Department is concerned about section 11(d)(3)(D) of the bill 
because it would reach back into existing compacts that already have 
been agreed to by States and Tribes and approved by the Department. 
This would have immediate impacts on existing labor agreements and 
could raise a number of unforeseeable contract issues that the 
Department is not prepared to discuss.
    This concludes my remarks and I will be happy to answer any 
questions you may have.
                                 ______
                                 
    Mr. Hayworth. Mr. Smith, would lack of preparation prevent 
you from articulating the administration's view on the role of 
organized labor in the tribal-State compact process?
    Mr. Smith. I think that is correct.
    Mr. Hayworth. So you are really just saying today you don't 
feel that you can comment, or is there a position, or is it 
being formulated, or you are just maintaining radio silence?
    Mr. Smith. Probably the latter. No, I am just kidding. We 
have no formal position about what part labor might play in the 
compacts. We do believe, however, the compacts are negotiated 
between the tribes and the State, and the degree to which 
either the tribes or the State wish to bring any other parties 
into or any other concerns into the compact process is theirs. 
So we are more mindful of the two parties that are at the table 
negotiating the compact, and so we are very reluctant at this 
time to say someone else should either have a place or not have 
a place.
    Mr. Hayworth. All right, sir. Let's turn for questions or 
comments to the minority side. The Ranking Member, the 
Gentleman from West Virginia.
    Mr. Rahall. Mr. Chairman, I don't have any questions right 
now. I would just like to ask Mr. Smith if he will be around 
later, after we have heard the other witnesses on this bill, or 
if a member of your staff will be around?
    Mr. Smith. I could certainly--I would be around or somebody 
could be around, yes.
    Mr. Rahall. OK. Thank you.
    Mr. Hayworth. Thank you, Mr. Rahall.
    The majority side, any questions or comments?
    The minority, the Gentleman from Michigan.
    Mr. Kildee. And I will later on be asking some questions on 
H.R. 103, but not at this time.
    Mr. Hayworth. OK. I thank you, sir.
    The Gentleman from Hawaii, Mr. Abercrombie.
    Mr. Abercrombie. Thank you.
    Mr. Smith, I want to make sure, are you for or against this 
bill? I don't mean you personally, but I mean does the 
administration have a position?
    Mr. Smith. No, we have no real position on this bill.
    Mr. Abercrombie. If you have no position, does that mean 
you are not opposing it?
    Mr. Smith. That means we are not opposing or supporting it. 
We do have some concerns with the retroactive application of 
one provision of the bill.
    Mr. Abercrombie. Doesn't it hurt your joints to be 
stretched that far?
    [Laughter.]
    Mr. Smith. I don't run the whole department, nor the 
administration. I am here to give you our position.--
    Mr. Abercrombie. There is not a member in here who doesn't 
understand that. Thank you.
    Mr. Hayworth. Actually, it is a part of a cultural exchange 
with our friends from Switzerland, neutrality.
    [Laughter.]
    Mr. Hayworth. Other questions or comments at this point on 
H.R. 103 for Mr. Smith?
    If not, then, friend, it is time to turn to H.R. 3534. I 
know Mr. Carson has more than a casual interest in this.
    Mr. Smith. Hopefully on my third strike.
    This bill has a long and rather sordid legal history. I 
will skip over that. It is in my testimony, but the chiefs of 
the tribes that will come after me are much more knowledgeable 
than I am about that history. I will let them speak to that.
    What I would like to speak to is the status of the current 
negotiations to try to settle this case, and the Department has 
appointed a team to attempt to negotiate a settlement of the 
Court of Federal Claims cases that are currently pending. The 
team is composed of representatives of the BIA, the Solicitor's 
Office, and the Bureau of Land Management.
    Representatives of the team have met on numerous occasions 
with the attorneys of the Cherokee, Choctaw, and Chickasaw 
Nations to reach agreement on the support of the Department of 
Interior for the bill. Such discussions have centered on the 
valuation of elements of damages claimed by the nations.
    The parties are working toward an agreement as to the 
amount that can be recommended to Congress for settlement of 
the claim. While agreement has not been reached, the parties 
are making substantial progress on the agreement. At this time 
it appears there exists substantial disagreement on only one 
element of damages. That element is the subject of ongoing 
meetings between the Federal negotiating team and the nations' 
attorneys. I would like to emphasize here that I believe we are 
very close to an agreement.
    The Court of Federal Claims is also interested in the 
settlement of the pending claims, and has held a series of 
status conferences to ensure that settlement discussions are 
proceeding. The next status conference is scheduled for June 
19th. We believe the Congress should not proceed in ratifying a 
settlement until the parties have reached agreement on all 
issues.
    We believe that continued discussion by the parties may 
result in a negotiated settlement between the Department and 
the Nations. The settlement should achieve two goals: one, 
resolve the financial elements; and, two, resolve the quiet 
title issues.
    In addition, the Federal negotiation team has discussed 
amending certain parts of the bill. The team will be working 
with the Committee to clarify the description of lands 
disclaimed, the transfer of real property interest, 
particularly in the areas where the navigation system was 
channelized across fee lands acquired by the U.S. Army Corps of 
Engineers, and certain other matters, including express waiver 
of certain future claims.
    This concludes my prepared statement. I would be happy to 
answer questions.
    [The prepared statement of Mr. Smith follows:]

 Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, 
             U.S. Department of the Interior, on H.R. 3534

    Good morning, Mr. Chairman and Members of the Committee. I am 
pleased to appear before you today concerning the Department's views on 
H.R. 3534, the ``Cherokee, Choctaw, and Chickasaw Nations Claims 
Settlement Act''. Since the subject of this legislation is pending 
litigation, I can only provide you with a background and status of the 
issue.
BACKGROUND
    This case originated in the mid-1960's when the Cherokee, Choctaw 
and Chickasaw Nations (Nations) filed suit against the State of 
Oklahoma for a declaratory judgment regarding ownership of the Arkansas 
Riverbed. The case culminated in a decision by the United States 
Supreme Court holding that ownership of the Arkansas Riverbed remained 
in the Nations. See Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970). 
The Supreme Court did not attempt to designate the particular tracts 
owned by the United States in trust for the Nations.
    Thereafter, the United States District Court for the Eastern 
District of Oklahoma, held that the State of Oklahoma had no further 
interest in the Arkansas Riverbed. Again, there was no ruling as to the 
ownership of the particular tracts of land. The Court transferred the 
ownership of certain oil and gas leases executed by the State of 
Oklahoma to the Bureau of Indian Affairs (BIA) for the benefit of the 
Nations. See Cherokee and Chickasaw v. Oklahoma, No. 6219-Civil 
(Judgment filed Jan. 21, 1977) and The Choctaw and Chickasaw Nations v. 
the Cherokee Nation, No. 73-332-Civil (Judgment filed April 15, 1975).
    The Nations then sued the United States arguing that the 
construction of the Kerr-McClelland Navigation System was a taking by 
the United States of the Tribe's ownership of the riverbed. This case 
ultimately went to the United States Supreme Court. The Court held that 
the Nations' interest was subject to the navigation servitude retained 
by the United States. See United States v. Cherokee Nation of Oklahoma, 
480 U.S. 700 (1987). The Court stated that the United States has the 
power to deepen the water or erect structures which it may believe to 
aid navigation.
    What is not directly resolved by the 1987 case is the ownership of 
specific tracts of dry lands owned by the Nations after avulsive 
changes in the river's course, as discussed by the Supreme Court in the 
first decision. After the 1970 decision, the United States obtained a 
study done by Holway and Associates, a private company located in 
Oklahoma City, Oklahoma. This study outlined the dry land areas that 
were considered to be owned by the Nations. As a result of the Holway 
study, the United States began leasing the minerals located in those 
areas. The BIA determined that there might be problems with the Holway 
study, and a second study was done by the Bureau of Land 
Management(BLM). This study, like the Holway study, examined the entire 
length of the riverbed.
    In 1989, the Nations filed two lawsuits against the United States 
in the Court of Federal Claims. See Cherokee Nation of Oklahoma v. 
United States ; No. 218-89-L (Ct.Fed.Cl.) and Choctaw and Chickasaw 
Nations v. United States, No. 630-89-L (Ct. Fed. Cl.), seeking damages 
from the United States for the failure to restore the Nations 
possession of the tracts claimed. The cases have been pending since 
that time.
    Quiet title lawsuits have been filed regarding certain tracts of 
land along the Arkansas River. The Cherokee Nation quieted title to one 
tract of land, in Cherokee Nation of Oklahoma v. Mathis, Case No. 87-
193-C (E.D. Okla. Judgment filed Nov. 27, 1989). This judgment quiets 
title in a single tract of land containing 124.942 acres in Section 9, 
Township 10 North, Range 24 East, of Sequoyah County, Oklahoma.
    The United States initiated a quiet title lawsuit covering the 
claim areas in two sections of the Riverbed. See United States v. Pates 
Farms, et al., Case No. CIV-97-685-B. This lawsuit sought to quiet 
title to tracts in Sections 31 and 32, Township 11 North, Range 27 
East, Sequoyah County, Oklahoma. The case was dismissed by the Court on 
technical grounds and has not been refiled because of the pending 
settlement efforts.
CURRENT STATUS
    The Department has appointed a team to attempt to negotiate a 
settlement of the Court of Federal Claims cases. The team is composed 
of representatives of the BIA, the Solicitor's Office and BLM. 
Representatives of the team have met on numerous occasions with the 
attorneys for the Cherokee, Choctaw and Chickasaw nations to reach 
agreement on the support of the Department of the Interior for the 
bill. Such discussions have centered on the valuation of elements of 
damages claimed by the Nations. The parties are working towards an 
agreement as to the amounts that can be recommended to Congress for 
settlement of the claim. While agreement has not been reached, the 
parties are making substantial progress on the agreement. At this time, 
it appears that there exists substantial disagreement as to only one 
element of damages. That element is the subject of ongoing meetings 
between the Federal negotiation team and the Nation's attorneys.
    The Court of Federal Claims is also interested in the settlement of 
the pending claims and has held a series of status conferences to 
insure that settlement discussions are proceeding. The next status 
conference is scheduled for June 19. We believe the Congress should not 
proceed in ratifying a settlement until the parties have reached 
agreement on all issues.
COMMENTS ON H.R. 3534
    We believe that continued discussion by the parties may result in a 
negotiated settlement between the Department and the Nations. The 
settlement should achieve two goals: (1) resolve financial elements, 
and (2) resolve quiet title issues. In addition, the Federal 
negotiation team has discussed amending certain parts of the bill. The 
team will be working with the Committee to clarify the description of 
lands disclaimed, the transfer of real property interests, particularly 
in areas where the Navigation System was channelized across fee lands 
acquired by the U.S. Army Corps of Engineers and certain other matters, 
including an express waiver of certain future claims.
    This concludes my prepared statement. I regret that I cannot speak 
more specifically on the proposed legislation due to the litigation of 
the matter. We look forward to working with the Committee on the 
settlement legislation once an agreement has been reached by all 
parties involved.
                                 ______
                                 
    Mr. Hayworth. Thank you, Mr. Smith.
    The Committee is aware that the United Keetoowah Band of 
Cherokee has concerns about whether this bill will adequately 
protect its interest. To what extent has the United Keetoowah 
Band been involved in the development of the settlement 
agreement?
    Mr. Smith. I am not really aware of that. I can't answer 
that.
    Mr. Hayworth. Could you check on that?
    Mr. Smith. I can check and get back to you, I think. Sure.
    Mr. Hayworth. We would appreciate that. Can the 
administration account for or summarize the values placed on 
the various elements of H.R. 3534 and how these values arrive 
at a total of over $41 million?
    Mr. Smith. We have a chart I would be happy to submit to 
you, rather than read it on the record, if you want me to, and 
give you the amounts that the different positions--the amounts 
that were agreed to. I would be happy to submit that to you. 
The only thing that is outstanding, Mr. Chairman, is the sand 
and gravel cost, and that is the one that is still under 
negotiation. All the rest of them have been agreed to.
    Mr. Hayworth. Mr. Smith, if the United States is unable to 
reach a settlement with the three nations on the issues in H.R. 
3534, what would be the administration's course of action?
    Mr. Smith. To continue litigation, but I don't believe that 
is what is going to happen. The litigation could go on probably 
10, 15, 20 more years, and that is just not tenable for either 
party. Like I testified to, I believe that both the government 
as well as the nations are very close to settlement, and I 
think you will hear from the nations that that is indeed the 
case.
    Mr. Hayworth. Thank you, sir.
    I turn to the Ranking Member. Any questions or comments?
    Mr. Rahall. No, thank you.
    Mr. Hayworth. Any questions or comments? The Gentleman from 
Oklahoma, Mr. Carson.
    Mr. Carson. No real questions for Mr. Smith, other than to 
thank you for being here today and thank you for the ongoing 
negotiations, and I think you have answered a couple of 
questions I had to Mr. Hayworth, and I look forward to talking 
about the issue more here in a few minutes, as well. Thank you.
    Mr. Hayworth. I thank the Gentleman from Oklahoma, who was 
born in Winslow, Arizona. We always appreciate that, the Sixth 
District of Arizona. For purposes of full disclosure, Mr. 
Rahall, we had to point that out.
    The Gentleman from Michigan.
    Mr. Kildee. I will probably wait until Governor Anoatubby 
and Chief Smith and Chief Pyle will be testifying, and have 
some statements and questions at that time.
    Mr. Smith. Thank you. They are far more knowledgeable than 
I.
    Mr. Kildee. Thank you.
    Mr. Hayworth. Thank you. Any other questions or comments 
for Wayne?
    If not, then, Mr. Smith, we thank you, and we appreciate 
your offer to stick around or have capable folks who work with 
you to hang around, lend an ear and an opinion as the day 
continues along.
    Mr. Smith. Thank you, Mr. Chairman. I will get someone more 
capable than I to stick around. Thank you.
    Mr. Hayworth. Thanks very much. Now, panel three. we will 
call on Mark Macarro, the Chairman of the Pechanga Band of 
Luiseno Mission Indians, and also James P. Avery, the Senior 
Vice President of San Diego Gas & Electric. Gentlemen, if you 
would join us front and center, we would appreciate it.
    Again, gentlemen, we welcome you, and we reaffirm from the 
Chair that your entire statements will be included in the 
record of today's proceedings, and we would appreciate a 
summarization of those statements. Chairman Macarro, when you 
are prepared to commence, we welcome you and we look forward to 
your testimony. Thank you, sir.

 STATEMENT OF MARK MACARRO, CHAIRMAN, PECHANGA BAND OF LUISENO 
                        MISSION INDIANS

    Mr. Macarro. [Greetings in native language.] My name is 
Mark Macarro. I am the Tribal Chairman for the Pechanga Band of 
Luiseno Mission Indians, and I simply said greeting in our 
Luiseno language. Hello, and it is good to be with all of you 
here today. Thank you for being here, and hi to all my friends 
and relations from here, and fellow Indians.
    Mr. Chairman, I want to thank also Congressman Darrell Issa 
for introducing this bill, and Congresswoman Bono and 
Congressman Calvert for cosponsoring this bill on behalf of our 
people. With all my heart, I ask for your full support of H.R. 
3476. Simply, H.R. 3476 would temporarily protect unique and 
sacred lands called the Great Oak Ranch. While we want the 
Great Oak protected forever, H.R. 3476 just keeps these special 
lands from utility line condemnation until a final decision is 
made by the U.S. Secretary of Interior on our pending fee to 
trust application.
    Last May we culminated a 20-year effort to purchase the 697 
acres now known as the Great Oak Ranch, to join together the 
two existing portions of our reservation. Our people have 
worked long and hard over many years to reacquire these 
ancestral lands, so we filed an application with Interior 
through the BIA to have the Great Oak Ranch placed into trust 
as part of our existing reservation.
    For the people of Pechanga, returning ancestral lands to 
our reservation is a duty that transcends easy expression by me 
here today. For example, in 1875 our last aboriginal village 
for our people, we were the subject of an eviction through a 
Federal decree of ejectment. It was a forced eviction that took 
place in the Temecula Valley. And for 7 years, until the 
establishment of our reservation in 1882 by executive order, we 
had no lands.
    So the rugged, undeveloped landscape of the Great Oak Ranch 
is rich with spiritual, cultural, and archaeological resources. 
These lands are where the Pechanga people came into being, and 
these lands are where the Pechanga people will always be.
    These lands are likewise important to the entire Temecula 
community and valley, and home to many irreplaceable resources, 
both cultural and natural. These ranch lands include the former 
home of Erle Stanley Gardner, author of the famed Perry Mason 
novels.
    And the centerpiece of these lands is its namesake, the 
Great Oak. Dated by UCLA at more than 1,500 years, it is 
heralded as the oldest known coastal live oak, Quercus 
agrifola. It stands majestically at more than 96 feet in height 
with a massive trunk nearly 20 feet in circumference. Each 
branch, larger than most live oak trunks, rises to touch the 
sky and then bends down to touch the earth, creating a natural, 
serene, cathedralesque sanctuary. It was underneath these great 
branches that Pechanga members held sacred ceremonies eons ago, 
and now at the dawn of a new century the Pechanga people are 
once again gathering under the Great Oak canopy.
    Just days ago we were notified by the BIA Pacific Regional 
Office of their intent to take the Great Oak Ranch into trust 
for the Pechanga people, acknowledging the following, and I 
quote:
    ``The sole purpose of the acquisition is the preservation 
and protection of Luiseno people's natural and cultural 
resources. The Pechanga Band is committed to protecting and 
preserving the invaluable and irreplaceable cultural resources 
of the Pechanga and Luiseno people. The cultural resources 
located within the Great Oak Ranch provide the Pechanga Band 
with unique opportunities to protect and preserve such 
resources on property owned by the Band itself.''
    These words from the Federal Government validate the 
emotion in our hearts about the Great Oak Ranch, and that it 
should come home to its native family.
    It is our understanding, however, that this decision by the 
BIA will be appealed by Sempra Energy so that they can run a 
massive power line within feet of the Great Oak Ranch itself. 
And while Interior's Notice of Intent specifically states, I 
quote, ``Sempra Energy's proposed route across the Great Oak 
Ranch is only one of several possible routes for a new 500,000-
volt power line,'' Sempra has relentlessly pressed for this 
route. They have indicated to the court, the Department of 
Interior, and the public that they will appeal the proposed 
Notice of Decision, and we know these precious lands are 
vulnerable to their condemnation unless you, who are charged 
with the protection of America's natural wonders and America's 
first people, act to preserve the status quo.
    Just as the Great Oak does not stand alone, the people of 
Pechanga do not stand alone. Elected local officials, 
Republicans and Democrats, business and community leaders, the 
elderly and Boy Scouts, have all stepped forward to stand with 
this Temecula Valley gem.
    Our Members of Congress, Mr. Issa, Ms. Bono, Senators Diane 
Feinstein, Barbara Boxer, and our State legislators, including 
State Senator and Republican leader Jim Brulte, Assemblyman 
Dennis Hollingsworth, and our Lieutenant Governor Cruz 
Bustamente, have all stepped forward, and we now ask you to 
step forward. Stand with them, stand with us, and stand with 
the Great Oak. And Mr. Calvert, I add you to the list, too. 
Thank you. And I thank the Committee. Thanks.
    [The prepared statement of Mr. Macarro follows:]

  Statement of The Honorable Mark Macarro, Chairman, Pechanga Band of 
                        Luiseno Mission Indians

    Mr. Chairman, I thank you and the other distinguished members of 
the Committee for the opportunity to present testimony on behalf of the 
Pechanga Band of Luiseno Mission Indians (``Tribe'' or ``Pechanga 
Band''). I am here today to respectfully ask your support of H.R. 3476 
which, if passed into law, would protect the Great Oak Ranch property 
from condemnation until the Secretary of the Interior makes a final 
decision regarding our pending fee to trust application for that land.
    In this testimony, I will describe the efforts that my Tribe has 
taken to return and protect the Great Oak Ranch as part of the Pechanga 
Indian Reservation. I will also describe the unique and irreplaceable 
resources of this land, including the 1500 year old Great Oak, as well 
as other cultural, religious, archaeological and biological features. I 
will outline the unanimous local support that we have received for our 
trust application, and the ongoing efforts of San Diego Gas & Electric 
Company (``SDG&E'') to impede and threaten the Great Oak Ranch with 
continuing threats of appeals and condemnation of our property.
   THE PECHANGA TRIBE'S FEDERAL PETITION TO TAKE THE GREAT OAK RANCH 
     PROPERTY INTO TRUST AS A LEGACY FOR THE TRIBE AND ITS MEMBERS
    On June 29, 1882, an Executive Order issued by the President of the 
United States established the Pechanga Indian Reservation (``Pechanga 
Reservation''), which is located within the ancestral and aboriginal 
lands of the Tribe. Additional acreage has been added over the years, 
for a total of 4,396.44 acres. The Pechanga Reservation consists of 
Federal trust property held for the beneficial use of the Tribe. The 
Reservation is intended to be a permanent homeland in order to further 
the Federal policy of Indian self-determination, including economic 
development and self-sufficiency.
    On May 15, 2001, the Tribe acquired thirty-one parcels totaling 
688.73 acres, and owns the property in fee. This land is located 
adjacent to the Reservation. These parcels (also referred to as the 
``Great Oak Ranch'' property) are located within portions of Sections 
28, 29, 32 and 33, Township 8 South, range 2 West, San Bernardino Base 
Meridian, in Riverside County, California. The property is located 
approximately 5 miles southeast of Temecula, and is adjacent to the 
boundary of San Diego County, California.
    As part of its trust relationship with Indian tribes, the United 
States may take title to property in trust for Federally-recognized 
Indian tribes pursuant to the provisions of Section 5 of the Indian 
Reorganization Act, 48 Stat. 985, Act of June 18, 1934, 25 U.S.C. 
Section 465, and Section 203 of the Indian Land Consolidation Act of 
1983, 25 U.S.C. Section 2201, et seq., as amended. The United States 
Department of Interior has adopted regulations that specify the 
procedures and substantive criteria used to process tribal applications 
to take land into trust for the benefit of Federally-recognized Indian 
tribes. See 25 Code of Federal Regulations Part 151.
    On December 31, 2000, the General Council of the Tribe, consisting 
of all adult members of the tribe, duly adopted Resolution 001231-C. 
This resolution directed the Tribal Chairman to submit an application 
to the United States to take the Great Oak Ranch property into trust. 
This resolution also directly requested that the Secretary approve the 
application. [See Exhibit A] For the people of Pechanga, returning 
these lands to our reservation is paramount. The rugged, undeveloped 
landscape of the Ranch is rich with spiritual, cultural, and 
archaeological sites. This Ranch is Pechanga's legacy.
    In June 2001, the Tribe submitted an application to the United 
States Department of the Interior, pursuant to regulations found at 25 
CFR 151 et seq., to take the Great Oak Ranch property into 
trust by the United States for the benefit of the Tribe. As outlined in 
the application, the Tribe's intended use of the property involves the 
continuation of existing agricultural activities, maintenance and use 
of three existing residences on site, and maintenance and preservation 
of the existing Luiseno Indian cultural resources found throughout the 
site. [See Exhibit B]
    Our property is home to many irreplaceable resources--both cultural 
and natural. The primary goal in acquiring the parcels of land covered 
by the trust application is to preserve and protect the ancestral 
homelands and cultural resources of the Tribe, including many sacred 
sites, archeological sites, and items. These ranchlands also include 
the historically significant former home of Erle Stanley Gardner, 
author of the famed Perry Mason novels.
    Yet the centerpiece of these lands is its namesake--The Great Oak. 
The Great Oak is believed to be more than 1500 years old and is 
heraldedas the oldest known coastal live oak tree. It stands 
majestically at more than 96 feet in height with a massive trunk nearly 
20 feet in circumference. Each branch, larger than most live oak 
trunks, rise up toward the sky and then come down to land--creating a 
natural, serene sanctuary. It was underneath these great branches that 
Pechanga members held sacred ceremonies eons more than a hundred years 
ago. As we sit at the dawn of a new century, the people of Pechanga are 
once again gathering under the canopy of the Great Oak.
    We believe the resources found on the Great Oak Ranch should be 
preserved and remain within the Ranch. The sole purpose of the 
acquisition is the preservation and the protection of Luiseno people's 
natural and cultural resources. The Pechanga Band is committed to 
protecting and preserving the invaluable and irreplaceable cultural 
resources of the Pechanga and Luiseno people. The cultural resources 
located within the Great Oak Ranch provide the Pechanga Band with the 
unique opportunity to protect and preserve such resources on property 
owned by the Tribe itself. These words spoken by the Federal Government 
validate the emotion in our hearts that the Great Oak Ranch should come 
home to its native family.
    Once the Great Oak Ranch property is accepted into trust by the 
United States, it will become part of the Pechanga Reservation. The 
Tribe will exercise powers of self-government, including civil 
regulatory jurisdiction, to protect the unique archaeological, 
biological and cultural resources, as well as the historic and sacred 
sites on the Great Oak Ranch.
  THE TRIBE RECEIVES UNANIMOUS LOCAL SUPPORT FOR ITS TRUST APPLICATION
    The people of Pechanga do not stand alone in their commitment to 
protect the Great Oak Ranch. From elected officials to business and 
community leaders, many have stepped forward to ensure the preservation 
of this Temecula Valley gem. Our Federal representatives in Congress 
Darrell Issa and Mary Bono; Senators Barbara Boxer and Dianne 
Feinstein; representatives from the state including State Senator Jim 
Brulte and Assemblyman Dennis Hollingsworth; and the Save South 
Riverside County Association, which represents the citizens of 
Riverside County, and the Temecula Valley Winegrowers Association, a 
vital part of the Valley's tourism and business sectors. Support for 
the Great Oak Ranch has transcended traditional geographic and 
political lines and serves as a symbol for all the people of Temecula 
Valley. [See Exhibit C]
     SDG&E'S THREATENED CONDEMNATION ACTION AND FURTHER LITIGATION
    The Tribe needs legislation to protect the fee-to-trust application 
process from SDG&E's threatened use of eminent domain powers. The Tribe 
is concerned that SDG&E continues to threaten the initiation of 
condemnation proceedings against the Great Oak Ranch property, even 
though SDG&E has not received a determination from the California 
Public Utilities Commission that the Valley Rainbow Interconnect 
Project is necessary or in the public interest.
    On March 23, 2001, SDG&E filed an Application for a Certificate of 
Public Convenience and Necessity and its Proponent's Environmental 
Assessment for the Valley-Rainbow 500-kilovolt (kV) Interconnect 
Project with the California Public Utilities Commission (``CPUC''). The 
CPUC application identifies both a preferred and proposed alternative 
route for the transmission line. The route preferred by SDG&E is along 
the easternmost and a portion of the southern-most sides of the 
Pechanga Indian Reservation, adjacent to the Cleveland National Forest. 
One of SDG&E's seven ``alternative'' routes pass through the Great Oak 
Ranch property, threatening several archaeological sites and the root 
system of the Great Oak tree.
    California public utilities have historically had broad powers of 
eminent domain. This has been necessary so that utilities could 
construct necessary improvements to their utility systems. However, as 
the concept of utility deregulation developed in California, the 
California Legislature determined that certain limitations would need 
to be placed upon the utilities' use of this power of eminent domain, 
in order to prevent the inappropriate use of this power as a 
competitive tool. In order to prevent the abusive use of this power, 
the California Legislature enacted Public Utilities Code Section 625. 
[See Exhibit D]
    As enacted, the law requires (with certain limited exceptions) 
public utilities to obtain prior approval by the CPUC before any 
eminent domain powers may be exercised by a public utility for 
competitive purposes.
    The section specifically provides a procedure for the review by the 
CPUC of condemnation proceedings initiated by public utilities. The 
public utility must file a petition or complaint, and provide personal 
notice to the owners of the property that is to be condemned. Before 
making a finding pursuant to this subdivision, the Commission must 
conduct a hearing in the local jurisdiction that would be affected by 
the proposed condemnation.
    SDG&E has argued that this section does not limit its ability to 
condemn the Great Oak Ranch. Last year, SDG&E initiated pre-
condemnation proceedings in Riverside Superior Court to survey the 
property of 320 property-owners along a 1,000 foot-wide corridor for 
its proposed alternative route. In this recent related litigation 
against 320 landowners, SDG&E argued that the proposed Rainbow-Valley 
Interconnect Project is not a ``competitive service,'' and therefore a 
Commission finding under Section 625 (a)(1)(A) is not required. SDG&E 
has also argued that the Project is required to fulfill a CPUC ordered 
obligation to serve (that would satisfy the exception to the 
requirement for a hearing found in (a)(1)(B) of Section 625). Both 
assertions are, at best, premature, as the CPUC is considering SDG&E's 
Application for a Certificate of Public Convenience and Necessity at 
this time.
    SDG&E, has repeatedly threatened and continues to threaten the 
initiation of eminent domain proceedings for purposes of a right of 
way. In a August 7, 2001, letter from Carolyn F. McIntyre, SDG&E Vice-
President to California Assemblymember Rod Pacheco, SDG&E took the 
position that CPUC approval of the project was not a condition 
precedent to bringing a condemnation action [See Exhibit E]:
        In response to the legal questions raised in your letter, SDG&E 
        has the legal authority to enter private land to conduct these 
        activities [notify 320 property owners along a 1,000 foot wide 
        transmission line study corridor] before the CPUC approves the 
        project.
        In Pacific Gas & Electric Co. v. Parachini (1972) 29 Cal. App. 
        3d 159, 166, the court stated that: ``...a certificate from the 
        Public Utilities Commission is not a condition precedent to the 
        acquisition of property by a regulated utility.'' Similarly, in 
        Pacific Gas & Electric Co. v. Hay (1977) 68 Cal. App. 3d 905, 
        912, the court reiterated that ``...in any event, Parachini 
        supports the view that agency approval is not a condition 
        precedent to the commencement of a condemnation 
        proceeding....''
    On March 21, 2002, the Bureau of Indian Affairs, Pacific Regional 
Office issued a notice of decision to have the Great Oak Ranch property 
taken into trust for the Tribe (``Notice of Decision''). [See Exhibit 
F] The Notice of Decision found that the Tribe established the need for 
additional land for purposes of exercising governmental jurisdiction 
and assuring the long-term protection of the Luiseno Mission Indians' 
cultural resources and in the enhancement of tribal self-determination. 
The Notice of Decision also found that the Tribe established the need 
to protect the biological resources of the Great Oak Ranch property, in 
addition to the Great Oak, elderberry bushes, buckwheat and sage 
species. The Notice of Decision noted that ``Sempra and its subsidiary, 
SDG&E, oppose the acquisition because the subject property is a 
'possible' route for a new 500,000-volt power line,'' but granted the 
Tribe's application because the Tribe had made the required showing of 
need under the regulatory process in 25 CFR Part 151.
    It is our understanding that this decision by the BIA will be 
appealed by SDG&E given the possible routing over the Great Oak Ranch 
for its proposed Valley-Rainbow Interconnect project. [See Exhibit G] 
After devoting years to secure these lands we are disappointed that our 
efforts may be further delayed. The latest evidence of SDG&E's 
intentions were outlined in a March 29, 2002, letter from Steven C. 
Nelson, Esq. to Michelle Cooke, Administrative Law Judge. In that 
letter, SDG&E stated its position to oppose the Tribe's trust 
application by appealing through the administrative process:
        In these appeals, SDG&E will explain, as it has done so in its 
        other filings at BIA, that SDG&E is not opposed to the land 
        being taken into trust so long as a right-of-way is preserved 
        for the Project. SDG&E also will reiterate that it remains open 
        to further discussions of these issues with the Tribe.
    SDG&E continues to threaten more litigation and the right to bring 
a condemnation action against the Tribe for the power to take a right 
of way corridor over the Great Oak Ranch property. The Tribe needs this 
legislation to preserve the status quo until its trust application has 
been fully decided on the merits, and all appeals have been exhausted.
                               CONCLUSION
    Mr. Chairman and Members of this Committee, thank you for granting 
me the opportunity to represent the Pechanga Band of Luiseno Indians 
today. The Great Oak Ranch represents the return of our homelands and 
its resources to our people and our community. But most importantly, 
protection of the Great Oak Ranch allows us to preserve and share 
Pechanga's history with generations to come. I respectfully request the 
expeditious passage of H.R. 3476.
                                 ______
                                 
    Mr. Hayworth. Mr. Chairman, we thank you for your testimony 
and your awareness of the atmospherics with us on the dais.
    Mr. Avery, welcome. Your testimony, please, sir.

 STATEMENT OF JAMES P. AVERY, SENIOR VICE PRESIDENT, SAN DIEGO 
                         GAS & ELECTRIC

    Mr. Avery. Thank you. This is an emotional issue, there is 
no doubt about it, but in trying to sum up my testimony, SDG&E 
is trying to preserve reliability that we provide to the people 
of Southern California.
    The region of San Diego is an area that is highly 
constrained. We rely upon two transmission corridors, one that 
extends to the east over toward Palo Verde nuclear generating 
plant, one that extends up to the north through the San Onofre 
nuclear generating facility. Essentially, we are in a 
bottlenecked area.
    There are no other routes available. We have identified 
three potential routes. One of those routes would require us to 
work or to go through the Pechanga Reservation. In our early 
discussions with them, they have told us they are opposed to 
that route. We have identified two other routes. One of those 
would go through the Great Oak Ranch. We did also have one 
other route which would require us to condemn homes and 
businesses.
    Now, we are in a situation where in moving forward on the 
Great Oak Ranch, it is not something that we want to in any way 
interfere with their right to take this land into trust. In 
fact, we are supportive of that. All we are asking for is that 
a small piece of this land be set aside until a final 
determination is made by the Public Utilities Commission that 
the need is verified and that we can move forward.
    We have not taken any action to condemn this land, nor will 
we take any action until the State determines there is a need 
and tells us to move forward with that. Any action under this 
bill would essentially circumvent or override the State's 
authority to move forward with condemnation.
    Now, as for the tree itself, it is a beautiful tree. I am 
not going to deny that. It is magnificent. Now, as for where we 
would locate our line, we are more than willing to work with 
the Pechanga Reservation and anyone else who can give us the 
ability to move the line further away. As to what we have 
proposed, we are roughly a tenth of a mile from the tree. We do 
not believe we will have any impact on this at all.
    I think I would also like to point out the fact that 
essentially we believe this bill is not necessary. We believe 
that we should be allowed to continue. Allow the Indians to 
move forward with their request to take this land into trust.
    As my colleague here has pointed out, we will be appealing 
the BIA's action to take this into trust, but it is not because 
we don't think the land should go into trust. All we are asking 
for is a corridor through this land, and that is it.
    Thank you.
    [The prepared statement of Mr. Avery follows:]

   Statement of James Avery, Senior Vice President, San Diego Gas & 
                         Electric, on H.R. 3476

    Good afternoon, my name is Jim Avery, Senior Vice President of San 
Diego Gas & Electric (SDG&E). I am responsible for managing all aspects 
of electric transmission for SDG&E, a distribution utility that 
provides service to 3 million customers through 1.3 million electric 
meters and 775,000 natural gas meters in San Diego and southern Orange 
counties. SDG&E is a California Public Utilities Commission (CPUC)-
regulated subsidiary of Sempra Energy, a San Diego-based Fortune 500 
energy services holding company. I appreciate the opportunity to 
provide testimony on H.R. 3476.
    SDG&E opposes H.R. 3476. If enacted into law, this legislation 
would preempt the laws of the State of California by overriding the 
state's authority to condemn and compensate private landowners for land 
that is needed for a public purpose. More specifically, H.R. 3476 would 
exempt a parcel of private land that the Pechanga Band of Luiseno 
Mission Indians owns in fee from the operation of state condemnation 
law until a final decision is reached on the Tribe's request to take 
the land in question into trust. It would have the practical effect of 
blocking indefinitely SDG&E's construction of the Valley Rainbow 
Interconnect, a major new transmission project that will serve as a 
critical link in the Southern California electricity system, providing 
increased reliability and access to electricity supplies for customers 
throughout southern California.
    H.R. 3476's proposed preemption of state law authorities raises 
serious Federalism concerns that go beyond the facts of this case. 
California has only recently been able to end the need for instituting 
blackouts and bring spiraling prices under control, and has a long way 
to go before it will completely emerge from a severe energy crisis that 
threatened the State's economic future and well being. Although the 
crisis was caused by many factors, a lack of transmission and an 
insufficient supply was identified as a leading contributor. 
Constraints on electricity production and transmission in California 
continue to create uncertainties in the marketplace; passage of H.R. 
3476 would send the wrong message to citizens and businesses in 
California. The bill would hold out a single parcel as being above 
state law and off-limits for a critical right-of-way that is needed to 
help resolve California's uncertain electricity situation.
    In addition to raising serious questions about the relative role of 
Federal and state authorities in installing needed electricity 
infrastructure in California and other states, H.R. 3476 represents an 
unnecessary and unwise overreaction to a land use conflict between the 
Tribe's desire to convert fee land into trust land and SDG&E's need to 
obtain a suitable right-of-way for its Valley Rainbow Interconnect 
project. This bill is the latest in a series of attempts to 
legislatively circumvent or influence the regular process of 
administrative review and decision. SDG&E does not oppose the Tribe's 
request to take the Great Oak Ranch property into trust, so long as a 
right-of-way corridor is identified and set aside for public use at the 
same time. The Company has made it clear that it is interested in 
moving forward with a consensual resolution of its land use conflict 
with the Tribe; there is no need to preempt a condemnation action that 
may never arise. The siting of this line would not be an act by SDG&E 
alone, but would be the result of a multi-year review by state agencies 
to identify the need and the optimum resolution. So no condemnation is 
pending. SDG&E is concerned that removing any possibility of such an 
action in the future, however, would send a message to the Tribe that 
there is no need to participate in discussions or negotiations on this 
issue. Indeed, SDG&E believes that Congress should encourage the 
Secretary of the Interior to assist in resolving this conflict, rather 
than helping to create more barriers to a common-sense solution to this 
matter.
 BACKGROUND AND NEED FOR THE VALLEY RAINBOW INTERCONNECT TRANSMISSION 
                                PROJECT
    The Valley Rainbow Interconnect project is a proposed 500,000-volt 
electric transmission line that would connect the existing Valley 
substation in Riverside County to a new substation 30 miles south in 
the community of Rainbow in San Diego County. The Interconnect will 
provide an important new link between the growing San Diego market and 
the rest of the State. The California Independent System Operator 
(ISO), the agency responsible for managing and planning the California 
transmission grid, has confirmed the important role that the Valley 
Rainbow Interconnect will serve in California's electricity system. I 
have attached the ISO's letter of support from September 2001.
    The business community in the greater San Diego region also 
recognizes the importance of the Valley Rainbow Interconnect project. 
In a November 2001 letter (attached for the record), the San Diego 
Regional Chamber of Commerce, the San Diego Regional Economic 
Development Corporation, and the San Diego-Imperial Counties Labor 
Council agreed that the proposed transmission line is ``critical to 
helping to solve the long-term energy demands of the San Diego region'' 
and would ``help maintain a strong regional economy and job base for 
many years to come.''
  SELECTION OF A RIGHT-OF-WAY CORRIDOR FOR THE VALLEY RAINBOW PROJECT
    San Diego Gas & Electric studied more than 80 different routes and 
hundreds of miles of alternatives to determine the corridors for its 
Valley Rainbow project that would have the least impact on the 
residents, businesses and environment in Riverside and San Diego 
counties. Three primary corridors in the southern region of Riverside 
County emerged as potential alternatives. The first route, identified 
as the preferred route, is located on the southern and eastern boundary 
of the Pechanga Reservation. This route would have the least impact on 
the environment and communities of Southwest Riverside County. A second 
route was also identified; it would go through a large undeveloped 
parcel of land known the Great Oak Ranch, west of the city of Temecula. 
This route appeared to be feasible, and potentially desirable, because 
it traversed private land, and it raised fewer environmental concerns 
than the third potential option. The third route, situated west of 
Interstate 15, has been recognized as problematic because it would 
traverse an environmentally sensitive area and, in addition, would 
enter populated areas, triggering the need to remove several businesses 
and homes.
    Based on the outcome of its extensive route analysis, San Diego Gas 
& Electric initially sought Tribal approval to site the Valley Rainbow 
line over the preferred route along the southern and eastern edge of 
the Pechanga Reservation. In June 2000, we met with Chairman Mark 
Macarro to discuss the Valley Rainbow Interconnect and our desire to 
acquire an easement along the eastern and southern borders of the 
Pechanga Reservation to locate the transmission line. During the 
following year, numerous meetings were held with the Pechanga Tribal 
Council, between Ed Guiles, CEO of the Sempra Energy Utilities and 
Chairman Macarro, and with many other members of the Pechanga Tribe.
    Unfortunately, SDG&E's efforts to negotiate a right-of-way for the 
preferred route was unsuccessful, and the Tribal Council passed a 
resolution opposing the proposed siting of the Valley Rainbow 
Interconnect line along the preferred route. Because of the Tribe's 
opposition, SDG&E focused its attention on the second route through the 
privately owned Great Oak Ranch, adjacent to the reservation. In March 
2001, SDG&E filed an application with the CPUC for approval of the 
Valley Rainbow line and the Great Oak route.
    In April 2001, SDG&E once again met with the tribe to discuss the 
possibility of using the preferred route over the proposed route. In 
May 2001, shortly after SDG&E indicated that it would be proceeding 
with the Great Oak route for the Valley Rainbow project (rather than 
the preferred route, which was opposed by the Tribe), the Pechanga 
Tribe purchased the Great Oak Ranch. When the Company learned that this 
private property had changed hands, we continued our dialogue with the 
Pechanga Tribe, making a formal offer for an easement over the Great 
Oak property and requesting another meeting between Mr. Guiles and 
Chairman Macarro to explore potential solutions. On August 14, 2001, 
Mr. Guiles and members of SDG&E management met with Chairman Mark 
Macarro, John Macarro and Tribal Council Members at the Great Oak Ranch 
to discuss alternatives. Shortly thereafter, we were informed that the 
Tribe opposed the siting of the Valley Rainbow Interconnect on the 
Great Oak property, much as it had previously opposed the inclusion of 
such a transmission corridor on tribal lands.
21SDG&E'S INTEREST IN REACHING A NEGOTIATED RESOLUTION OF THE RIGHT-OF-
                               WAY ISSUE
    During the summer and fall of 2001, the Tribe sponsored an Interior 
appropriations rider that would have overridden statutory authorities 
and mandated that the Great Oak Ranch be taken into trust without 
undergoing the required review, thereby blocking the proposed use of a 
narrow corridor on the property for the Valley Rainbow transmission 
line. That rider was removed by the House-Senate Conference Committee. 
A subsequent effort to offer a rider similar in approach to H.R. 3476 
to the Defense appropriations bill did not advance. Throughout these 
efforts, SDG&E has continued to emphasize that the Company does not 
oppose the Tribe's request to take additional land into trust, so long 
as the State's legitimate needs for a narrow transmission corridor are 
accommodated. For its part, SDG&E has not sought a legislative remedy, 
but instead has consistently recommended that the corridor issue be 
addressed, and resolved, through negotiations among the parties, under 
the auspices of the U.S. Department of the Interior.
    Earlier this year, the Interior Department agreed to seek a 
negotiated resolution of this matter. Indeed, the Department took the 
initiative and arranged for face-to-face negotiations among the parties 
in a meeting that was scheduled to take place in southern California on 
March 20, 2002.
    Regrettably, a few days before the March 20 negotiating session, 
the Tribe informed the Interior Department that it would not 
participate in the scheduled talks, and the Interior Department was 
forced to cancel the meeting. The very next day, on March 21, 2002, the 
Bureau of Indian Affairs regional office in Sacramento, California 
released a Notice of Decision to accept the Great Oak Ranch in trust 
for the Pechanga Indians without any hold-back of a transmission 
corridor, and without any effort to seek a negotiated resolution of the 
issue.
    SDG&E is appealing BIA's decision. The decision contains serious 
flaws, particularly with regard to its mischaracterization of the real 
availability of alternative routes for the siting of the Valley Rainbow 
Interconnect. Even more importantly, the decision was issued without 
apparent regard for serious public policy issues raised by the conflict 
between the Tribe and SDG&E, and prior to the convening of a dispute 
resolution process among the parties. SDG&E believes that the decision 
should, and will, be reversed on appeal. The Company continues to 
prefer, however, that the corridor issue be addressed through Interior-
led negotiations with the Tribe. If the Department is to take any 
action on the pending action, it should take the land into trust with 
the reservation of a corridor for the Valley Interconnect transmission 
line, so that the land in trust process is not used inappropriately to 
block this needed project.
                               CONCLUSION
    In summary, SDG&E opposes H.R. 3476 and asks that the Committee 
take no action on the legislation. SDG&E renews its request to 
Congress, and to the Secretary, to help it negotiate a resolution of 
the existing conflict in a manner that will meet Tribal needs, while 
also addressing the state's needs for a new right-of-way for the 
installation of the Valley Rainbow Interconnect transmission project.
                                 ______
                                 
    [Attachments to Mr. Avery's statement follow:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Hayworth. Thank you, Mr. Avery.
    Chairman Macarro, does the Pechanga Tribe have any plans 
for development of any kind on the Great Oak Ranch property?
    Mr. Macarro. No, we don't. As stated in our application to 
Interior/BIA, we stated or have designated there is no change 
of use in the property, and the intended use and purpose is to 
preserve and protect the resources that are there.
    The cultural resources in particular are also very 
significant. Along the base of all the foothills there are 
significant old village sites, dark midden soil area, cremation 
areas and associated sacred sites, one key site which we 
believe it appears the proposed transmission line would go 
over, and a tower would come either near or on that site.
    I think this information, from what I recall, actually 
comes from SDG&E's own cultural resource sensitivity maps, 
which I would like to introduce into the record. I understand 
it will be open for another 2 weeks.
    Mr. Hayworth. Without objection, we would welcome that. 
Just one follow-up, and for purposes of the record, Mr. 
Chairman, does the tribe plan to use the Great Oak Ranch for 
gaming purposes or any purposes other than what you have just 
outlined?
    Mr. Macarro. No, the tribe does not. Half a mile down the 
road, if you have the briefing book in front of you, in Tab 1 
there is an aerial photo and then there is a graphic, a two-
color graphic map. The smaller trapezoidal piece of land, it is 
almost a square, not quite, is labeled as the Kelsey tract, and 
our casino, our gaming operation, is on that piece of land 
currently.
    We are nearly complete on a major expansion of that 
operation. In fact, that expansion will open up at the end of 
June, and we have invested over $100 million of revenue and 
over $150 million in loan dollars for that project. It is a 
substantial facility. We are not going to be building a 
separate facility or having any ancillary gaming purpose type 
things just a half a mile up the road from that facility. 
Everything is integrated on existing tribal lands.
    Mr. Hayworth. Thank you, Mr. Chairman.
    Mr. Avery, of the numerous possible routes for a new 
500,000-volt power line, why has SDG&E chosen this route, one 
that initially was not preferred by your company, by your 
utility, as we understand it?
    Mr. Avery. OK, let me just set the record straight. There 
are only three routes that we have identified. The first route 
is on existing reservation land, and we do not have any rights 
to that, absent the reservation being willing to enter into an 
agreement where we could have a right-of-way. That is the 
preferred route.
    The proposed route is the route that goes through the Great 
Oak Ranch. The third route is further west from there, and that 
would require us to condemn about seven homes and two 
businesses. And we felt that the best way to proceed would be 
to go in an area where we did not have to condemn and tear down 
people's homes, and yet we would still be willing to work with 
the exact routing with the people who own the land, to 
essentially accommodate their needs.
    Mr. Hayworth. But, to reiterate and amplify, Mr. Avery, the 
initial preferred route was through reservation land that 
obviously the tribe controls, correct? That was the--
    Mr. Avery. That is correct.
    Mr. Hayworth. And that is seen as a profound difficulty to 
work that out, the preferred route?
    Mr. Avery. They have told us that they will not negotiate 
with us on that.
    Mr. Hayworth. OK, sir.
    Other questions for the Chairman or for Mr. Avery? The 
Gentleman from West Virginia.
    Mr. Rahall. Thank you, Mr. Chairman.
    Just hearing this debate and the testimony that has just 
been given reminds me of many a power line fight I have been 
through in my home State of West Virginia, so I am no stranger 
to power lines wanting to put their lines across sacred sites 
in West Virginia. Our sacred site is the New River, and the 
power company proposed some years ago to put a power line 
across the New River, and we were able to stop them.
    I think what I found out through that fight is, sometimes 
the utility companies just need a little nudge. I think they 
can find an alternative route, maybe not the one that was their 
No. 1 priority. Sometimes in life we don't always get our No. 1 
priorities. But they can find another route that will get the 
job done, but is just not their No. 1 preferable routing.
    Mr. Hayworth. Thank you, Mr. Rahall.
    The Gentleman from California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Avery, I understand that there are three routes that 
you are most considering, but in consultation and conversation 
with executives at your company, the question of a further west 
alignment, one that would go through the national forest 
nonwilderness area, that would also line up with the proposed 
LEAPS project, what would be your reasons for not considering 
that, even though it wasn't in your original consideration?
    Mr. Avery. Essentially, it would require us to go through 
Federal land, and we do not feel we have the opportunity or 
option to pursue that.
    Mr. Issa. So, if I can summarize what I am hearing here 
today, not asking for a route going on the edge, skirting a 
national forest, because obviously the alignment, it would 
potentially go either in the national forest or on the edge of 
it, is rejected even though it is one that could potentially 
have been on the list of those you would like to do but may not 
be able to get approval for, and yet one going through other 
Federal land which happens to belong to the Pechanga Band was 
put on.
    Now, I am trying to understand why Federal land belonging 
to Indians is acceptable to put onto an alignment, but Federal 
land belonging to the people in general, and by definition 
available for the public good, wasn't considered. I mean, 
doesn't there seem to be something where in retrospect you 
would say, ``Jeeze, we should have put all those possible areas 
on. If we were going to take Federal land or would like to take 
Federal land, shouldn't we list it all?''
    Mr. Avery. I think we have to look at opportunities that we 
can, through the process we go before in California, review all 
available options to us, and we did not view that as an 
available option to us.
    With respect to other interveners who have participated in 
the process in the State, they have identified the opportunity 
to move forward with another corridor. The CPUC has the right 
to review any and all opportunities that are presented before 
it, and review those. At the same time, they have the right to 
reject any opportunity or any area that we have presented.
    With respect to the corridors that we present, we have an 
obligation to pursue areas that we believe are viable. We are 
to present those to the CPUC for their jurisdiction to 
determine where is the best routing, and then once approved by 
them we would move forward with acquiring that land. We did put 
on our application that the preferred route would be to work 
with the Pechanga Indians to see if we could secure a route 
through the reservation.
    And this project, by the way, goes back well over 20 years. 
This is not something new for San Diego Gas & Electric. Roughly 
2 years ago we first approached the tribe with the notion of 
trying to work with them in going through the reservation. That 
is when we identified that as the preferred route. The proposed 
route was land that was owned in fee simple by another party. 
It wasn't until after we had moved forward with our application 
that the Pechanga acquired that land.
    Mr. Issa. Well, one question. On the proposed route, not 
preferred, when it was held fee simple by private parties for 
more than 20 years, did you approach those parties to get an 
easement?
    Mr. Avery. Again, the process we go through is to identify 
the need and work with the CPUC on routing, and then at that 
point in time move forward with the acquisition of land. It 
isn't to acquire the land in advance of the identification of 
need.
    Mr. Issa. So the answer would be no?
    Mr. Avery. That is correct.
    Mr. Issa. In the case of the other route, the one you said 
would disrupt several houses and I think, I believe you said 
two businesses, what would be the difference in the cost of 
acquisition between Pechanga's land as you would calculate it 
and paying a fair price to each of those people you would ask 
to relocate?
    Mr. Avery. Off the top of my head, I don't know. I imagine 
it would be a small percentage of the overall project cost.
    Mr. Issa. So it would be fair to say that you would be in a 
position to pay a price to these few homes and two businesses 
where they would be delighted to relocate, since in all 
likelihood there is nothing sacred about their business 
location.
    Mr. Avery. I am not aware or familiar if you are aware of 
ever going through a condemnation proceeding with a house or a 
business, but in my case I have never come across anyone who is 
delighted to have their house condemned.
    Mr. Issa. Well, no. I appreciate that, but I come from a 
business background, as you do, Mr. Avery, and we always feel 
that something which money can resolve amicably is a business 
decision, and something which cannot be resolved and thus has 
to be taken care of in the courts or administratively is a 
problem.
    And I am getting the feeling that for absence of a business 
decision to purchase the other tract, which you could do 
without condemnation--you could choose to make offers to these 
people and purchase and pay them a very fair sum--you have 
decided instead to go through an administrative route, which in 
this case asks for relief that you wouldn't get from a willing 
seller. Is that fair to say?
    Mr. Avery. No, I don't believe that is a fair 
characterization. What we have presented is the proposed route 
and an alternate to those proposed routes. It is up to the CPUC 
to decide which they want, which route they want us to pursue. 
Once they have identified that, we will move forward with that 
course of action and try in good faith to negotiate with every 
land owner. With respect to condemnation, that is really the 
last right we move forward with. But right now that right is 
vested in the State to tell us to move forward.
    Mr. Issa. It does seem like you are here before you have 
got the State right, asking for us to hold off doing something 
which, if we had never taken this land from the Pechanga more 
than 100 years ago, they would have had and this wouldn't be 
under debate here today.
    Thank you, Mr. Chairman.
    Mr. Hayworth. The Gentleman's time has expired.
    The Gentleman from California, Mr. Miller, do you have any 
questions or comments?
    Mr. Miller. No.
    Mr. Hayworth. The Gentleman from Michigan.
    Mr. Kildee. Basically you have a third route which Mr. Issa 
referred to, where there is about seven homes and one or two 
businesses. It would seem to me that the piece of land you wish 
to run your power lines through, we have numerous cultural and 
archaeological sites. Hard to put a value on that, but they are 
things that once changed, forever lose their cultural and 
archaeological value.
    It would seem to me that you should really be looking at 
that third site. No one likes to have their land condemned, 
whether it be an Indian tribe owning some land in fee which 
they hopefully will get into trust, or homeowners, but it would 
seem to me that you should pursue that third site because you 
would not be destroying or modifying archaeological and 
cultural sites, which I think is very, very important.
    And I think that as a--I mean to say this in a very 
sensitive way--as a representative of your company, you should 
probably go back and tell your superiors that there is kind of 
a bipartisan problem down here for your company.
    Mr. Avery. If I may, just again to fulfill or fill your 
record here, there are two commercial establishments which I 
mentioned. There are seven private residences. There are 79 
residences that would be within 500 feet of this third 
alternative. There is an elementary which is within 350 feet of 
the third alternative.
    There are 3.7 miles of the Santa Margarita Ecological 
Reserve which would have to be bisected by this third 
alternative. It would also impact important habitat for nearly 
50 sensitive species, including two species that are on the 
endangered species list. One is the Keno checkerspot butterfly, 
and one is the Stevens kangaroo rat. So it is not as if the 
third route is just affecting just people and homes.
    Mr. Kildee. But it is a possible route, and I think that 
very often we at this Committee, looking over the history of 
the taking of Indian land, the loss of Indian land--so much 
Indian land has been lost. My own State of Michigan, it is just 
incredible. I have got certain tribes, their sovereignty 
reaffirmed, not granted, it is a retained sovereignty, and they 
were down to zero acres of land. The land was taken away from 
them illegally, extralegally, or just gone.
    But I think that this land which the tribe is seeking to 
get back full control over, sovereignty over--they own it in 
fee right now--that this Committee is inclined to try to undo 
some of those things in the past that were unfair to the 
tribes, and I think that we are more likely to support putting 
this land back under trust with full sovereignty by the 
Pechanga Tribe. So I think you should probably go back and talk 
to your company and say that there is a problem and that this 
problem is in the minds of both Democrats and Republicans down 
here, and that you possibly should look at that third site or 
maybe even a fourth site. But I think you really have a problem 
with this Committee.
    Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you, Mr. Kildee.
    The Gentleman from California, Mr. Calvert.
    Mr. Calvert. I thank the Chairman.
    I am going to go back to the route that you didn't apply 
for, the Cleveland National Forest. Metropolitan Water District 
worked toward and got an easement, working through the 
environmental documentation, to put a water line to serve south 
Orange County in the future, to put a filtration plant in the 
Corona area and move a significant water line to service future 
water needs in that part of south Orange County.
    And the fact of the matter is that easements are given in 
national forests in a nonwilderness area, and again I would 
respectfully say to San Diego Gas & Electric, whoever made the 
determination unilaterally not to even consider that, I think 
made an improper decision, because I think many of us would 
help San Diego Gas & Electric work on that, that we can 
potentially mitigate for any environmental problems. You are 
going to have that wherever you put that line, on any of the 
alternative routes.
    It seems to me that the least opposition that you would 
have, as far as the general public and the Pechangas and 
everyone else, would be to pursue that route. And I know that I 
would be willing to try to assist you with the administration 
and with the Department of Agriculture and others to pursue 
that route. And I would again say that you didn't even take 
serious consideration to take a look at that. Is that correct?
    Mr. Avery. No, sir, that is not correct. Underneath the 
provisions of the Federal act that have the land for the 
Federal Government, it requires us to look at the use of 
private land first.
    Now, with respect to the development of a hydroelectric 
facility, if we were doing generation, for example, then we 
would have the right to look at transmission corridors through 
the national forest as part of that project, but we have no 
project for the development of a hydroelectric facility.
    And with respect to the LEAPS project that Mr. Issa 
referred to, that is a project that has been proposed and at 
this point in time is not moving forward. Should that project 
move forward and provide us an opportunity, that would perhaps 
free up or create another route, but at this point in time we 
do not see that as an option for ourselves.
    Now, should you be able to, through an act of Congress, 
provide us that route, we would love to have that, and I am 
more than willing to work with you, perhaps, and others to try 
to create or find that opportunity. But for us as a public 
utility working in the State of California, we do not have that 
option.
    Mr. Calvert. Well, I would say that we ought to take a look 
at pursuing that option. You may have a better opportunity 
through an act of Congress than the present route that you are 
taking a look at.
    Mr. Avery. I would also suggest, though, that should we 
look to move on a national forest, I think there would be a lot 
of opposition from a lot of different groups.
    Mr. Calvert. Well, I think you are going to have, in my 
opinion you are going to have less opposition with that route 
than you would with the route you are pursuing at the present 
time.
    Thank you.
    Mr. Issa. Would the Gentleman yield?
    Mr. Calvert. I will yield my time.
    Mr. Issa. I would like to echo my colleague's statement 
just very, very briefly and say that should you give us all of 
the possible alignments that you would look at from a 
standpoint of topography, and at least give us the opportunity 
to have the Federal Government explore them to find out whether 
or not appropriate mitigation for taking of that or using of 
that land would be possible, it would at least untie our hands 
here in the Federal Government in trying to work toward your 
goal of getting this power line.
    Right now, as someone who this power line is going through 
my district, I was never given those tools. And I will mention 
that when I asked one of your executives, in the case of the 
LEAPS one, they said, ``Well, the real problem is, it would 
take until 2007,'' but that is because it was never considered. 
You never thought outside the box 20 years ago.
    I yield back.
    Mr. Hayworth. Thank you, Mr. Calvert.
    Any other questions or comments from either side for these 
two witnesses?
    If not, gentlemen, we thank you for your time and 
attendance, and we appreciate you making your perspectives part 
of our record. You are excused. Thank you. And let me thank the 
Gentleman from California for joining us.
    Mr. Hayworth. Now we are going to move to panel four, as we 
move to a more complete discussion of H.R. 103. Included on 
panel four: Joe Garcia, Tribal Council Member from the Pueblo 
San Juan; Deron Marquez, the Chairman of the San Manuel Band of 
Mission Indians; and Keller George, President of the United 
South and Eastern Tribes.
    As those gentlemen come forward, the Chair would like to 
offer some perspectives and then turn to the Ranking Member to 
talk more about H.R. 103.
    H.R. 103 amends the Indian Gaming Regulatory Act to 
prohibit tribal-State gaming compacts from including or being 
conditioned on any agreement containing any provision relating 
to labor terms or conditions for employees of tribally owned 
businesses located on Indian lands. The legislation voids any 
such provisions that have been entered into before, on, or 
after the legislation's enactment.
    In 1998 the California Supreme Court overturned Proposition 
5, which confirmed California tribes' right to gaming 
enterprises. As a result, the United States Attorney declared 
that all tribal gaming in the State would cease unless tribal-
State compacts were signed by October 13, 1999.
    Faced with the prospect that their most valuable economic 
assets, which help fund health care facilities, educational 
facilities, and other social and economic endeavors, would be 
shut down, 61 California tribes were essentially coerced into 
signing gaming compacts with Governor Gray Davis that carried 
separate labor agreements. It was made very clear by Governor 
Davis that a gaming compact would not be signed without a labor 
agreement.
    As a matter of Federal law, the National Labor Relations 
Act does not apply to Indian tribes because they are recognized 
as sovereign governmental entities under the Constitution. 
Nevertheless, under the time-sensitive deadline, California 
tribes in that State were forced to cede their sovereignty, 
their constitutional rights, to the State of California in 
order to save their enterprises from being shut down.
    The issue here is not whether tribes should unionize their 
gaming facilities, but the issue is, who should make that 
decision? Should it be up to the sovereign tribal governments 
or should it be up to the States and the Federal Government? 
The U.S. Constitution states that it is the tribes as sovereign 
governmental entities that have the right to make this 
decision.
    Recently, referring to the San Juan Pueblo of New Mexico 
tribe's right-to-work ordnance, the 10th U.S. Circuit Court of 
Appeals stated that the ordnance was ``clearly an exercise of 
sovereign authority over economic transactions on the 
reservation.''
    H.R. 103, the Tribal Sovereignty Protection Act, will 
ensure that States do not force Indian tribes to unionize their 
casino employees as a condition of a tribal-State gaming 
compact made under the Indian Gaming Regulatory act. The bill 
will allow sovereign tribes to have the freedom to determine 
their own labor policies, rather than being coerced, or some 
would say blackmailed, by the State and/or the Federal 
Government.
    The Ranking Member, the Gentleman from West Virginia.
    Mr. Rahall. Thank you, Mr. Chairman. Mr. Chairman, I am 
just going to be brief in this opening statement, then get into 
it later on, but let me just say pure and simple, cut through 
the chaff and get right to the point, this bill is anti-labor, 
it is anti-worker. It is not even a thinly disguised assault on 
labor unions, and that is really no surprise there, considering 
the author of it.
    But what is surprising, though, I would say, is that it has 
been dressed up to look like something that is pro-tribal 
sovereignty. That is how the bill has been dressed up, and it 
is just a bad political ploy. It is bad legislation. And I 
expect during the course of this hearing we will go into 
further details about it, but I just want to say that at the 
very top of the agenda, so that everybody knows where I am 
coming from on this legislation.
    I now yield the balance of my time to my colleague from 
California, Mr. Miller.
    Mr. Miller. I thank the Gentleman for yielding, and I quite 
concur in what he has said. The purpose of this bill in this 
hearing really is not about supporting Indian tribes or 
preserving the sanctity of the tribe-State compact 
negotiations. It is nothing more than an outright attack on the 
rights of working men and women and unions to which they choose 
to belong.
    The author and many supporters of this bill have more or 
less always been anti-union. It is not a question of whether 
unions are representing people on tribal lands, it is whether 
they represent people in any working places in America, and I 
think the congressional supporters know exactly what they have 
done with the introduction of this bill.
    This is just a continued crusade by our friends on the 
other side of the aisle against the rights of working people 
and the rights of working people to collectively organize and 
to freely associated. They are using this forum in this 
Committee to see whether or not they think they can force 
people on our side of the aisle to choose between the people 
they support on the tribal lands of this Nation and union 
organizations and working families across this country.
    Simply not going to work. It is not how we work. We don't 
trade loyalties. And, first and foremost, it is a false choice. 
The idea that somehow we would have to choose the rights of 
collective bargaining over our friends in the tribal nations is 
simply a false choice. They are not inconsistent.
    As we know, a number of California tribes already have 
entered into collective bargaining arrangements, even predating 
the compact. Others have entered into it in other timeframes. 
And I also want to say that if you read this bill, it is a 
misstatement of the facts.
    And I am not sure that the Indian tribes in California 
would believe, as the bill states, that the Governor of 
California acted in bad faith. I am not sure that the Indian 
tribes in California would agree that they were essentially 
forced into signing these compacts.
    They had been trying for 8 years to get the previous 
Governor of the State of California to even talk to them. And 
when he finally did, it was such an egregious compact that 
almost all of the tribes would not agree to it, and even that 
compact had far stronger, under Governor Wilson, had far 
stronger language with respect to unions and representation on 
the State lands.
    What really was entered into was the right of people to 
decide, should they do so, to join a union. Upon a showing of 
30 percent, people who freely make that decision can choose to 
have a vote and decide whether or not to have a union. If they 
have a union and later they don't like it, 30 percent of the 
people can say, ``We want to decertify, we want to have an 
election,'' and they can vote not to have a union.
    So the notion that somehow this forces unionization, forces 
union membership, is simply not accurate. Simply not accurate. 
If you read from the agreement, it says ``Eligible employees 
shall have the right of self-organization to form, to join, to 
assist employee organizations to bargain collectively through 
representatives of their own choosing, to engage in concerted 
activities for the purpose of collective bargaining or other 
mutual aid or protection,'' and shall also have the right to 
refrain from doing any of that. That is according to the 
compact.
    So this is built on a mischaracterization of the situation. 
It is built upon the role, it is built upon the 
mischaracterization of the role of the Governor of the State of 
California, and it is built on the mischaracterization of what 
the compacts actually say.
    The fact of the matter is that, as set up under IGRA, when 
the tribes establish that they have a legal right to Class III 
gaming, as was done in California--it was subject to court 
review, later was dealt with in Proposition 1A--they then have 
the ability to compact, as under IGRA, with the Governor. Those 
are free and open negotiations, each party brings its agenda to 
the table, surrounding the issue of Indian gaming.
    Clearly, clearly the work force on tribal lands is a 
subject, a matter of concern of any Governor of any State. One 
Governor may choose to do something else. This Governor chose 
to make sure that collective bargaining was available to the 
employees. Not all the employees of Indian gaming, in fact a 
minority of Indian gaming employment are individuals who are 
members of the Indian nations.
    We also note that Governors have sought to do a number of 
other things, many of which I disagree with. We are well aware 
of the fact that the tribes now feel that they have been 
disadvantaged because of the Supreme Court decision on 
Seminole, which took away the rights of the tribes to sue. I 
wrote the legislation giving the tribes the right to sue. The 
Supreme Court said we have overstepped our bounds. And the real 
question is, are we going to fix, are we going to see whether 
or not we can address the Seminole decision to once again get a 
level playing field in the negotiations between the State and 
the gaming tribes who are seeking a compact?
    But that is not what is happening here. We are not 
addressing Seminole. We are not addressing the issue of 
sovereignty. We are not addressing the issue of parity of 
bargaining positions. What we are addressing here is, we simply 
want to batter down the rights of worker protections, and it is 
simply wrong for us to do that.
    My understanding, and it has been echoed to me or been told 
to me numerous times, that the Gaming Association seeks no 
amendments in IGRA until the Seminole case has been addressed, 
and that that has not changed. The fact of the matter is, to 
open up IGRA is something that we have tried to avoid because 
of the very substantial anti-gaming component of the Republican 
Caucus in this Congress, and we were concerned what was going 
to happen with IGRA and with many of the financial adversaries, 
if you will, the competitors of Indian gaming who would love to 
have an opportunity to erect additional hurdles under IGRA and 
to keep people from doing that.
    There is also the question of opening it up, and there have 
been concerns about then that people would load in other items 
that must be compacted, that have nothing to do with Indian 
gaming: the use of tribal lands, hunting and fishing rights, 
there has been a whole list of agendas of people who would love 
to be able to get the leverage of these compacts to settle a 
whole list of other scores with respect to sovereignty, 
reservations, and governance of the tribal lands.
    So I would hope that members of this Committee would reject 
this legislation. I would hope that they would see it 
immediately for what it is, a battering ram against collective 
bargaining, a policy that is absolutely inconsistent with our 
positions, and that we ought to reject it and understand that 
it is trying to present a false choice, a false choice to the 
Congress, suggesting that somehow the collective bargaining 
rights to be voluntarily entered into or not entered into by 
the employees of these entities, that somehow that is 
inconsistent with Indian gaming.
    The fact of the matter is, the proof every day on the land 
is, that is not the case. This is a situation set up under 
Federal law between the States and the tribes seeking a 
compact, and that is where it ought to remain.
    An item that was dealt with in California is the question 
of revenue sharing. Some I think almost $40 million has been 
distributed to poorer tribes who really don't have access to 
gaming because of their location or other circumstances, and we 
have created revenue sharing, I really think one of the 
hallmarks of the California compacts in terms of helping other 
tribes to provide for education, for housing, for health and 
welfare of their members.
    Other States have chosen not to do that. Some States have 
chosen to extract huge amounts of money, huge amounts of money 
from the tribes, for entering into the compact. Call it 
whatever you want, that is what is going on. Maybe that ought 
to be addressed in this situation.
    The State of Arizona I think even suggested that the gaming 
nations create a charity, contribute a huge amount to charity, 
but then the money would be given away in the State's name. 
Sounds like the government, sort of, you know; we take your 
money and then we give it away in our name.
    So there is no shortage of people's imagination about what 
they would want to put on the table in compacting, but I think 
clearly employee-employer relationships are central to the 
issue of Indian gaming, and its impact on the reservation and 
off the reservation is a proper item for compacting. And I 
would hope that we would reject this legislation.
    Mr. Hayworth. The Chair thanks the Gentleman from 
California, and the Chair would note that in addition to having 
the Ranking Member yield the time, we certainly gave the 
Gentleman from California his own 5 minutes. But not to 
interrupt a seamless point of view, we chose just to let him 
continue, so--
    Mr. Miller. I appreciate that.
    Mr. Hayworth. And we appreciate perhaps that, the relevance 
or the facts notwithstanding, certainly my friend from 
California is always eloquent. And the Chair also welcomes the 
fact that both the Ranking Member and the Gentleman from 
California chose not to indulge in personalities or get 
personal as to the authorship of the proposed legislation.
    [Laughter.]
    Mr. Hayworth. But, be that as it may, we do have a choice 
here. The Gentleman from Michigan would like to make a 
statement. I think perhaps we ought to hear from the witnesses, 
but if you feel compelled to go now, certainly I am always 
happy to yield to my friend from Michigan.
    Mr. Kildee. Thank you, Mr. Chairman. I appreciate that, and 
I am going to get personal but I am going to praise you. I 
praise your established record for protecting the sovereign 
rights of tribes. You and I have worked very closely in the 
vineyard on that, and I certainly praise you for that.
    I do, however, oppose H.R. 103, a bill that would amend the 
Indian Gaming Regulatory Act to prohibit tribal-State gaming 
compacts from including any provision relating to labor terms 
or conditions, or from being conditioned by collateral 
agreements dealing with labor terms. Mr. Chairman, I will 
briefly explain the reasons why I oppose the bill.
    The bill addresses the core problem of coerced collateral 
agreements. I think that that is what we should really be 
addressing. Since the U.S. Supreme Court ruling in Seminole 
Tribe v. Florida, tribes are prevented by the Eleventh 
Amendment, as Mr. Miller has stated, from suing States in 
Federal court without their consent. States failing to 
negotiate in good faith have a complete defense against tribes 
who seek to enter into gaming compacts. This situation has 
caused the States to have an unfair advantage over tribes in 
State-tribal negotiations that can lead to coerced collateral 
agreements.
    By enacting IGRA, Congress ought to ensure the rights of 
tribes to reach gaming compacts with States by allowing tribes 
to sue States where States refuse to negotiate in good faith. 
However, because of the Seminole decision, these tribes cannot 
sue States for refusal to negotiate in good faith. I think we 
should work together to return to the tribes the authority 
Congress sought to give them in IGRA and allow the tribes to 
sue States where they refuse to negotiate in good faith.
    Second, the bill deals only with labor issues. It does not 
address other core sovereign rights that States may seek to 
coerce tribes to give up, such as treaty rights. In addition, I 
am concerned that coerced collateral agreements extend beyond 
the gaming arena. In my own State of Michigan, the tribes are 
being asked to negotiated treaty hunting and fishing rights 
before the Governor will enter into State-tribal tax 
agreements. A similar situation exists in Wisconsin. I believe 
that we need to study the larger issue of coerced collateral 
agreements.
    I am concerned about opening up IGRA to amendments. I 
believe that we must first address the core problem of coerced 
agreements and provide a legislative fix to the Seminole case. 
By working together, we can find a solution to the issue of 
coerced agreements.
    I look forward to the testimony of the three friends who 
are ready to testify, I think now. Thank you Mr. Chairman.
    [The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                from the State of Michigan, on H.R. 103

    Mr. Chairman, while I praise your established record as an advocate 
for protecting the sovereign rights of tribes, I oppose H.R. 103, a 
bill that would amend the Indian Gaming Regulatory Act (IGRA) to 
prohibit tribal/state gaming compacts from including any provision 
relating to labor terms or conditions, or from being conditioned by 
collateral agreements dealing with labor terms.
    I will briefly explain the reasons for which I oppose this bill.
    First, while I share your concern that the State of California may 
have pressured some tribes into signing labor agreements before 
entering into gaming compacts, I do not believe that this bill 
addresses the core problem of coerced collateral agreements.
    Since the U.S. Supreme Court ruling in Seminole Tribe v. Florida, 
tribes are prevented by the Eleventh Amendment from suing states in 
Federal court without their consent. States failing to negotiate in 
good faith have a complete defense against tribes who seek to enter 
into gaming compacts. This situation has caused the states to have an 
unfair advantage over tribes in state/tribal negotiations that can lead 
to coerced collateral agreements.
    By enacting IGRA, Congress sought to ensure the rights of tribes to 
reach gaming compacts with states by allowing tribes to sue states 
where states refused to negotiate in good faith. However, because of 
the Seminole decision, tribes cannot sue states for refusal to 
negotiate in good faith.
    We should work together to return to the tribes the authority 
Congress sought to give them in IGRA and allow the tribes to sue states 
where they refuse to negotiate in good faith.
    Second, the bill deals only with labor issues. It does not address 
other core sovereign rights that states may seek to coerce tribes to 
give up, such as treaty rights.
    In addition, I am concerned that coerced collateral agreements 
extend beyond the gaming arena.
    In my own State of Michigan, the tribes are being asked to 
negotiate treaty hunting and fishing rights before the governor will 
enter into state/tribal tax agreements. A similar situation exists in 
Wisconsin.
    I believe that we need to study the larger issue of coerced 
collateral agreements.
    Finally, although I am concerned about opening up IGRA to 
amendments, I believe that we must first address the core problem of 
coerced agreements and provide a legislative fix to the Seminole case.
    By working together, we can find a solution to the issue of coerced 
agreements.
    I look forward to hearing the testimony. Thank you.
                                 ______
                                 
    Mr. Hayworth. I thank the Gentleman from Michigan. The 
Chair is constrained to point out, the concerns that are raised 
by my friend from Michigan and the Gentleman from California, 
the only way I would bring this bill to the floor is under a 
rule that would prevent any other amendments. If that doesn't 
happen, it would not go forward, and I wanted to make that part 
of the record.
    But, as my friend from Michigan points out, we have 
witnesses who very patiently have been waiting to offer their 
testimony. We will have that testimony now, beginning with 
Council Member Garcia from the Pueblo of San Juan. Welcome, and 
your complete statement will be made part of the record.

 STATEMENT OF JOE A. GARCIA, TRIBAL COUNCIL MEMBER, PUEBLO OF 
                            SAN JUAN

    Mr. Garcia. [Remarks in native language.] I have asked for 
your guidance and I have asked for your respect in allowing me 
to speak at this time. So, Mr. Chairman, I will speak.
    Mr. Chairman, Committee members, and one of our own, Mr. 
Tom Udall from New Mexico, greetings from San Juan Pueblo. My 
name is Joe Garcia, and I am a former Governor. One of the 
issues we addressed some time ago when I was Governor, it dates 
back a few years, but it has to do with labor and unions. 
Nonetheless, thank you for inviting me and allowing me to come 
before you. It is an honor always to speak before congressional 
delegates.
    I am here to give testimony on H.R. 103, a bill to amend 
the Indian Gaming Regulatory Act of 1988 to protect Indian 
tribes from coerced labor agreements. I want to make one point 
clear, that although our court case did not deal with gaming 
per se, it dealt with labor and the right for tribes to set 
their own ordinances, policies and acts. My tribe, the Pueblo 
of San Juan, supports this bill.
    On January 11, 2002, the 10th Circuit Court of Appeals in 
National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 
1186, 10th Circuit, affirmed the power of my pueblo to outlaw 
compulsive union membership on its land. In this case, the NLRB 
wanted to force every employee working for the sawmill on our 
land to financially support a certain union. The Tribal 
Council, of which I am a member, felt strongly that the Tribal 
Council rather than the NLRB should make the labor policy for 
Pueblo land. By a vote of 9 to 1, the 10th Circuit agreed.
    The important principle of this case is that Congress has 
recognized that the Indian tribes are solely responsible for 
making the labor policy for Indian lands, not any Federal 
agency. We understand that some States believe that they can 
and should make the labor policy for Indian lands. The States 
of California and New York, for example, are forcing Indian 
tribes to enact tribal laws that mandate labor unions in Indian 
casinos. Otherwise, the States threaten not to sign compacts 
with the Indian tribes.
    Unfortunately, these Indian tribes have no legal recourse 
against these bad faith actions because of Seminole Tribe v. 
Florida. Consequently, these tribes may ultimately be forced to 
accept the State's labor policy demands or give up any hope of 
obtaining a gaming compact.
    The Pueblo of San Juan believes that Congress never meant 
for these States to use the Indian Gaming Regulatory Act in 
this fashion. Moreover, nothing in the Indian Gaming Regulatory 
Act gives these States the power to extort tribal labor policy 
in exchange for a gaming compact.
    Congress made it clear that only those matters that are 
directly related to the regulation and licensing of gaming are 
proper subjects for negotiation of a compact. Senate Report No. 
100-446 states, ``The committee does view the concession to any 
implicit tribal agreement through the application of State law 
for Class III gaming as unique, and does not consider such 
agreement to be precedent for any other incursion of State law 
onto Indian lands.
    Gaming by its very nature is a unique form of economic 
development, economic enterprise, and the Committee is strongly 
opposed to the application of the jurisdiction elections 
authorized by this bill to any other economic or regulatory 
issue that may arise between tribes and States in the future.'' 
1988 U.S.C.C.A.N. 3071, 3084, and others: ``Congress does not 
intend for the States to use the gaming compact as a tool to 
impose their regulatory or public policy will on Indian 
tribes.''
    The presence or absence of labor unions in Indian casinos 
has nothing to do with the direct regulation and licensing of 
gaming. We urge Congress to restore the balance in the Indian 
Gaming Regulatory Act that was lost by the Seminole decision. I 
believe that H.R. 103 is a step in the right direction.
    And the testimony is available. I will take any questions 
if there are any, Mr. Chairman.
    [The prepared statement of Mr. Garcia follows:]

Statement of Joe A. Garcia, Tribal Council Member, Pueblo of San Juan, 
                              on H.R. 103

    Thank you for inviting me to give testimony on H.R. 103, a bill to 
amend the Indian Gaming Regulatory Act of 1988 to protect Indian tribes 
from coerced labor agreements.
    H.R. 103 is about protecting tribal sovereignty'sovereignty that 
has not been taken away by the National Labor Relations Act or the 
Indian Gaming Regulatory Act. Several States, such as California, have 
improperly tried to take away this sovereignty from Indian tribes 
through the so-called compact ``negotiation'' process. The balance 
intended in the Indian Gaming Regulatory Act has been upset by the 
Supreme Court's Seminole decision, and States now have the power to 
force illegal compact provisions on Indian tribes. H.R. 103 would 
restore that balance, at least, in the area of labor relations.
    At the outset, I want to say that my tribe, the Pueblo of San Juan, 
recognizes the contributions that labor unions have made in this 
Country. I am here in support of H.R. 103 solely because it confirms 
the sovereign governmental right of Indian tribes to make their own 
labor relations policies based on the economic conditions existing on 
Indian reservations. Many Indian tribes may well exercise that 
sovereign authority to welcome labor unions and encourage union 
organization. But that is a choice for Indian tribes, not for States, 
and, ultimately, not for the Federal Government.
    It is imperative that the Committee on Resources understand that 
labor policy on Indian lands is an important aspect of economic 
regulation that should be, and heretofore has been, left to Indian 
tribes as sovereign governments. The National Labor Relations Board has 
concluded that the National Labor Relations Act does not apply to 
Indian tribes and their wholly-owned business entities, including 
tribal casinos, on Indian lands because of the Act's exemption for 
governments. Absent the unbalanced compacting process, it is undisputed 
that Indian tribes can and do make policy decisions regarding labor 
relations for their tribal casinos without State interference.
    Indian tribes also retain regulatory authority over labor relations 
with respect to non-tribal employers on Indian lands to the same extent 
as States. My tribe, the Pueblo of San Juan, has won every round of 
litigation over precisely that issue. On January 11, 2002, the Tenth 
Circuit Court of Appeals, in National Labor Relations Board v. Pueblo 
of San Juan, 276 F.3d 1186 (10th Cir. 2002) (en banc), affirmed the 
power of my Pueblo to outlaw compulsory union membership on its land. 
In that case, the NLRB wanted to force every employee working for a 
sawmill on our land to financially support a certain union. The Tribal 
Council, of which I am member, felt strongly that the Tribal Council, 
rather than the NLRB, should make the labor policy for Pueblo land. By 
a nine to one margin, the Tenth Circuit agreed. The important principle 
of this case is that Congress has recognized that the Indian tribes are 
solely responsible for making labor policy for Indian lands, not any 
Federal agency and certainly not the States.
    Thus, it is clear that States cannot lawfully impose their policies 
regarding labor relations on Indian tribes. Nevertheless, we understand 
that some States believe that they can and should make the labor policy 
for Indian lands. The States of California and New York, for example, 
are forcing Indian tribes to enact tribal laws that mandate labor 
unions in Indian casinos. Otherwise, these States threaten not to sign 
gaming compacts with the Indian tribes.
    Unfortunately, these Indian tribes have no legal recourse against 
these unlawful and coercive tactics because of Seminole Tribe v. 
Florida, 517 U.S. 44 (1996). As you may recall, the Supreme Court's 
ruling in the Seminole case prevents Indian tribes from suing States 
for negotiating compacts in bad faith, even though Congress expressly 
intended to maintain the balance of power between Indian tribes and 
States by allowing the Indian tribes to sue States in Federal court. 
Consequently, Indian tribes can now be illegally forced to accept the 
States' labor policy demands (and a host of other demands, for that 
matter) or give up any hope of obtaining a gaming compact.
    The Pueblo of San Juan is certain that Congress never meant for the 
States to use the Indian Gaming Regulatory Act in this fashion. The 
Senate Committee Report on the IGRA put it plainly:
        ``The Committee does not intend that compacts be used as a 
        subterfuge for imposing State jurisdiction on tribal lands.'' 
        (S. Rep. No.100-446, at 14, reprinted 1988 U.S.C.C.A.N. 3071, 
        3084.)
    And yet, that it essentially what the States of California or New 
York have done or are attempting to do: they have forced their views of 
labor policy on the Indian tribes in those states.
    Other statements by members of Congress at that time underscore 
that gaming compacts were not meant to be tools for States to impose 
their policies on Indian tribes, especially when those policies are not 
directly related to gaming. As Senator Inouye, IGRA's sponsor, stated 
on the floor shortly before IGRA cleared the Senate:
        ``There is no intent on the part of Congress that the 
        compacting methodology be used in such areas such as taxation, 
        water rights, environmental regulation, and land use. On the 
        contrary, the tribal power to regulate such activities, 
        recognized by the U.S. Supreme Court . . . remain fully intact. 
        The exigencies caused by the rapid growth of gaming in Indian 
        country and the threat of corruption and infiltration by 
        criminal elements in Class III gaming warranted utilization of 
        existing State regulatory capabilities in this one narrow area. 
        No precedent is meant to be set as to other areas.'' (134 Cong. 
        Rec. S24024-25, Sept. 15, 1988)
    As the Senate Report and Senator Inouye made clear, the intent of 
IGRA was to allow States a sufficient role in the regulation of Class 
III Indian gaming to insure that issues, such as infiltration by 
organized crime were addressed. The compacting process was not intended 
to allow States to impose their will regarding ancillary issues, such 
as taxation and labor relations. Labor relations is simply not 
``directly related to, and necessary for, the licensing and regulation 
of such [Class III gaming] activity,'' as IGRA, 25 U.S.C. 
Sec. 2710(d)(3)(C), requires.
    In summary, the skewed compacting process under IGRA is being used 
improperly by the States to impose non-gaming related regulatory or 
public policies on Indian tribes. We urge Congress to restore the 
balance in the Indian Gaming Regulatory Act that was lost by the 
Seminole decision. I believe that H.R. 103 is a step in the right 
direction.
                                 ______
                                 
    Mr. Hayworth. And we thank you very much, Council Member 
Garcia, for your testimony.
    Now, Chairman Marquez of the San Manuel Band of Mission 
Indians, welcome, and we appreciate your testimony today.

   STATEMENT OF DERON MARQUEZ, CHAIRMAN, SAN MANUEL BAND OF 
                    SERRANO MISSION INDIANS

    Mr. Marquez. My name is Deron Marquez, and I am the 
Chairman of the San Manuel Band of Mission Indians located in 
San Bernardino County in California. I am too speaking in 
support of H.R. 103 sponsored by Congressman J.D. Hayworth, to 
amend the Indian Gaming Regulatory Act in a way that would 
protect Indian tribes from being forced, through the 
withholding of State compact approvals, to enter into labor 
agreements. I will be testifying from our own historical and 
tribal perspectives and experiences, which we would appreciate 
being considered by you as you debate the merits of this 
important bill.
    By way of tribal background, we are among the earliest 
tribes to enter gaming, which in our case began in the mid-
1980's before IGRA was enacted. For many years our tribe has 
operated, on its own and without any outside management company 
or financing, one of the most successful tribal government 
casinos in California and perhaps in the country. Our gaming 
project is not only vitally important to our tribe and our 
reservation, having lifted us out of poverty, high unemployment 
and limited educational opportunities, but also to our entire 
community, which continues to have one of the highest 
unemployment and personal bankruptcy rates, not related to 
gaming, in the country.
    We are a relatively small tribe, so many of our employees 
are nontribal. Our casino employees number in the thousands in 
total, work entirely on the reservation, and are employed by 
our tribal government. Both members and nonmembers alike seek 
to become our employees because of our solid reputation as a 
fair, safe, and secure work place. We rank among the best and 
the highest paying and benefitted employers in our community.
    We are not unique among tribes, however, in believing that 
employees deserve a safe and healthy environment and that 
tribal governments should be, and typically are, responsive to 
their needs. Indian gaming is dedicated, structured, and 
oriented to benefit tribal self-sufficiency and people, not 
Wall Street or private businesses and their interests.
    Our tribe, like other tribes engaged in gaming throughout 
the Nation, continue to rank at the top among those 
participants in the gaming industry that make charitable 
contributions, assist local governments and other public 
institutions with our profits, and, importantly, combat 
compulsive gambling. Those activities and achievements reflect 
the fact that our priorities and goals are substantially 
different than those who engage in gaming solely as a business. 
Congress understood that basic difference when it enacted IGRA 
to enable us to protect those objectives, a fact that must not 
be lost in the dialog over this bill.
    It is also important in considering my remarks that you 
know that a few years ago, without any compulsion whatsoever 
from the State or Federal Government, or anyone else for that 
matter, our tribe engaged in voluntary negotiations with a 
major labor union that was representing some of our employees, 
and that we reached a collective bargaining agreement that is 
still in effect. We are one of the few tribes that have done so 
in the gaming industry, although labor agreements have been 
reached in other tribal industries in the past. Indeed, tribes 
have sometimes been frustrated, and had to be vigilant in their 
efforts to ensure that unions admitted its members and provided 
the job training and employment opportunities on reservations 
that were being made available in the same location to the non-
Indian community.
    Therefore, neither my testimony nor the support of this 
bill by the others should be viewed as for or against employers 
or employees, or as pro or con for labor unions. Just as State 
governments have strong interests in regard to their own 
employees as well as others employed by others within their 
jurisdiction, tribes have fundamental policy and governmental 
interests in regulating employment relationships and activities 
that take place within their jurisdiction.
    This is particularly true in the case of the tribal 
governmental gaming which is so important for funding tribal 
functions, the arbitrary disruption of which could be 
disastrous to governmental programs and operations. How those 
relations are governed must be determined in accordance with 
tribal governmental policies, since to do otherwise gives rise 
to the potential and to the assumption that forces outside the 
reservation can and should control tribal governmental 
operations. That is a concept that has been sought by some who 
seek to destroy tribal existence, but has never been the law of 
this country.
    Our support for H.R. 103 demonstrates an unfailing belief 
that attempts by those who would seek to leverage control of 
tribal governmental operations and work places through the 
potential economic leverage available through the IGRA compact 
process should be resisted and prohibited. Let me illustrate 
these dangers through what happened, and nearly happened, in 
our own State of California.
    In the mid-1990's the California tribes and the State, 
following years of negotiations, were at best able to reach an 
agreement on a tribal gaming compact that was acceptable to 
only a handful of over 100 Federally recognized tribes within 
the State. Tribal-state compacts are required under IGRA where 
the nature of the gaming is neither based on bingo, on games 
traditionally associated with bingo, such as pull tabs and the 
like, or on nonbanking card games such as poker.
    Other forms of gambling require a compact, the purpose of 
which, as stated in the act, is to govern the conduct of gaming 
activities. A compact is intended to be reached by good faith 
negotiations between the State and the tribe over such 
traditional gaming regulatory matters as employee licensing, 
the kinds of gambling games that will be permitted, regulatory 
standards, and other topics specific to the operation of gaming 
activities.
    The act is full of references to the regulation of gaming, 
but nowhere suggests that a State can use its own compact 
consent opportunity under IGRA to obtain control over tribal 
governments and their employees. Yet that was exactly what was 
attempted in order to further the agenda of a few commercial 
interests that were opposed to any gaming by tribes in 
California in the late 1990's.
    When the majority of California tribes opposed a compact 
that was being negotiated in secret, but that was clearly 
intended to serve as a model for all California tribes, they 
proposed that the issue be taken to the people in the form of a 
constitutional amendment setting forth the proposed terms of a 
compact, so that it can be openly debated and voted up or down 
by everyone.
    That suggestion appeared to have overwhelming bipartisan 
support of the State legislature, only to be thwarted, 
ironically, by some out-of-State gaming interests who persuaded 
some that the compact initiative should compel collective 
bargaining on terms far beyond what is required under law, and 
certainly far in excess of any terms those companies would have 
supported or tolerated if anyone had tried to enact them under 
the laws of their own State. As a result, the debate became 
highly politicized, and the tribes were left with no 
alternative but to place the measure on the ballot as a 
statutory initiative without legislative support.
    The problem should have never arisen. It is simply 
inappropriate to permit the compact process, which was intended 
to govern the fundamentals of regulating gaming, to be hijacked 
by unrelated goals, such as the opportunity to serve 
competitors and to otherwise control tribal jurisdiction. Labor 
relations was one vehicle for such an attempt, but there are 
others as well. They stray from the gaming regulation under the 
guise of trying to solve complex issues of tribal-State 
relations. The compact process is not the place for that to 
occur, and to permit the process diminishes not only tribal 
sovereignty but the role that Congress has historically played 
in this debate.
    The footnote to California's story is of course that the 
first compact did go to the people without any labor 
provisions, but with significant protections for workers which 
were written in at the insistence of the tribes themselves, and 
which passed by 64 percent, only to be stricken down by the 
courts because, due to the legislative split over the labor 
issue, it could not be placed in the constitution as originally 
intended.
    A second initiative, this time amending the California 
constitution, did pass, but only as to the forms of gaming to 
be included in a compact. Simultaneously, tribes reached 
agreement with a new Governor and agreed to compromise 
provisions governing negotiations, but not agreements for 
collective bargaining.
    Even those provisions, however, which each compacting tribe 
is required to enact as a tribal labor relations ordinance as a 
condition of obtaining the compact, violates the tribe's 
sovereign right to govern the subject of employee labor 
relations within its jurisdiction, just as other governments 
now do, and strays dangerously far from the gaming regulation 
which the compacts were intended to address. One would be 
surprised to find labor relations provisions in a section of 
State law governing gaming regulation, but that is essentially 
what results when compacts like these contain such provisions. 
They are inappropriate and beyond the scope of IGRA.
    This bill would correctly uncouple the gaming regulatory 
process from a State's goals or agendas with respect to labor 
relations. In fact, my only criticism would be that it does not 
go far enough in prohibiting negotiations over all unrelated 
issues. IGRA calls for two areas to be negotiated, scope of 
gaming and regulation. These critical programs should not be 
used as a shortcut to try and coerce solutions to complex and 
serious questions regarding the relationship between tribes and 
States that have been and will continue to be with us for many 
years.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Marquez follows:]

   Statement of Deron Marquez, Chairman, San Manuel Band of Serrano 
                            Mission Indians

    Good morning. My name is Deron Marquez. I am the Chairman of the 
San Manuel Band of Serrano Mission Indians, a Federally recognized 
Indian tribe with a reservation in San Bernardino County, California. I 
am speaking in support of H.R. 103, sponsored by Congressman J.D. 
Hayworth, to amend the Indian Gaming Regulatory Act in a way that would 
protect Indian tribes from being forced, through the withholding of 
state compact approvals, to enter into labor agreements. I will be 
testifying from our own historical and tribal perspectives and 
experiences, which we would appreciate being considered by you as you 
debate the merits of this important bill.
    By way of tribal background, we were among the earliest tribes to 
enter gaming, which in our case began in the mid-1980's before IGRA was 
enacted. For many years our tribe has operated, on its own and without 
any outside management company or financing, one of the most successful 
tribal governmental casinos in California, and perhaps in the country. 
Our gaming project is not only vitally important to our tribe and our 
reservation, having lifted us out of poverty, high unemployment, and 
limited educational opportunities, but also to our entire community, 
which continues to have one of the highest unemployment and personal 
bankruptcy rates in the country.
    We are a relatively small tribe, so many of our employees are non-
tribal. Our casino employees number in the thousands in total, work 
entirely on the reservation, and are employed by our tribal government. 
Both members and nonmembers alike seek to become our employees because 
of our solid reputation as a fair, safe and secure workplace. We rank 
among the best and highest paying and benefitted employers in our 
community. We are not unique among tribes, however, in believing that 
employees deserve a safe and healthy environment, and that tribal 
governments should be, and typically are, responsive to their needs. 
Indian gaming is dedicated, structured and oriented to benefit tribal 
self-sufficiency, and people; not Wall Street or private business 
interests. Our tribe, like other tribes engaged in gaming throughout 
the nation, continually rank at the top among those participants in the 
gaming industry that make charitable contributions, assist local 
governments and other public institutions with our profits, and, 
importantly, combat compulsive gambling. Those activities and 
achievements reflect the fact that our priorities and goals are 
substantially different than those who are engaged in gaming solely as 
a business. Congress understood that basic difference when it enacted 
IGRA to enable us to protect those objectives, a fact that must not be 
lost as the dialogue over this bill continues.
    It is also important in considering my remarks that you know that a 
few years ago, without any compulsion whatsoever from the state or 
Federal Government, or from anyone else for that matter, our tribe 
engaged in voluntary negotiations with a major labor union that was 
representing some of our employees, and that we reached a collective 
bargaining agreement that is still in effect. We are one of the few 
tribes that have done so in the Indian gaming industry, although labor 
agreements have been reached in other tribal industries in the past. 
Indeed, tribes have sometimes been frustrated, and have had to be 
vigilant, in their efforts to ensure that unions admitted its members 
and provided the job training and employment opportunities on 
reservations that were being made available in that same location to 
the non-Indian community. Therefore, neither my testimony nor the 
support of this bill by other tribes, should be viewed as for or 
against employers or employees, or as pro or con labor unions. Just as 
State governments have strong interests with regard to their own 
employees as well as those employed by others within their 
jurisdiction, Tribes have fundamental policy and governmental interests 
in regulating employment relationships and activities that take place 
within their jurisdiction. That is particularly true in the case of 
tribal governmental gaming, which is so important to funding tribal 
functions, the arbitrary disruption of which could be disastrous to 
governmental programs and operations. How those relations are governed 
must be determined in accordance with tribal governmental policies, 
since to do otherwise gives rise to the potential, and to the 
assumption, that forces outside the reservation can and should control 
tribal governmental operations. That is a concept that has been sought 
by some who would seek to destroy tribal existence, but has never been 
the law in this country. Our support for H.R. 103 demonstrates an 
unfailing belief that attempts by those who would seek to leverage 
control of tribal governmental operations and workplaces, through the 
potential economic leverage available through the IGRA compact process, 
should be resisted and prohibited. Let me illustrate these dangers 
through what happened, and nearly happened, in our own state of 
California.
    In the mid-1990s, the California tribes and the state, following 
years of negotiations, were at best able to reach agreement on a 
tribal-state gaming compact that was acceptable to only a handful of 
the over 100 Federally recognized tribes within the state. Tribal-state 
compacts are required under IGRA where the nature of the gaming is 
neither based on bingo, on games traditionally associated with bingo, 
such as pull-tabs and the like, or on non-banking card games such as 
poker. Other forms of gambling require a compact, the purpose of which 
as stated in the Act is to govern ``the conduct of gaming activities.'' 
1 A compact is intended to be reached by good faith 
negotiations between the state and a tribe over such traditional gaming 
regulatory matters as employee licensing, the kinds of gambling games 
that will be permitted, regulatory standards, and other topics specific 
to the ``operation of gaming activities.'' The Act is full of 
references to the regulation of gaming, but nowhere suggests that a 
state can use its own compact consent opportunity under IGRA to obtain 
control over tribal governments and their employees. Yet that was 
exactly what was attempted in order to further the agenda of a few 
commercial interests that were opposed to any gaming by tribes in 
California in the late 1990's. When the majority of the California 
tribes opposed a compact that was being negotiated in secret, but that 
was clearly intended to serve as a model for all California tribes, 
they proposed that the issue be taken to the people in the form of a 
constitutional amendment setting forth the proposed terms of a compact, 
so that it could be openly debated and voted on, up or down, by 
everyone. That suggestion appeared to have overwhelming bipartisan 
support of the state legislature, only to be thwarted, ironically, by 
some out of state gaming interests who persuaded some that the compact 
initiative should compel collective bargaining on terms far beyond what 
is required under law, and certainly far in excess of any terms those 
companies would have supported or tolerated if anyone had tried to 
enact them under the laws of their own state. As a result, the debate 
became highly politicized, and the tribes were left with no alternative 
but to place the measure on the ballot as a statutory initiative, 
without legislative support.
---------------------------------------------------------------------------
    \1\ 25 U.S.C. 2710 (d)(3)(A). All future references to the 
Act are in Title 25 of the U.S. Code.
---------------------------------------------------------------------------
    The problem should have never arisen. It is simply inappropriate to 
permit the compact process, which was intended to govern the 
fundamentals of regulating gaming, to be hijacked by unrelated goals, 
such as the opportunity to serve competitors and to otherwise control 
tribal jurisdictions. Labor relations was one vehicle for such an 
attempt, but there are others as well. They stray far from gaming 
regulation under the guise of trying to solve complex issues of tribal-
state relations. The compact process is not the place for that to 
occur, and to permit that process diminishes not only tribal 
sovereignty, but the role that Congress has historically played in 
these debates.
    The footnote to the California story is, of course, that the first 
compact did go to the people without any labor provisions, but with 
significant protections for workers which were written in at the 
insistence of the tribes themselves, and which passed by 64%, only to 
be stricken down by the courts because, due to the legislative split 
over the labor issue, it could not be placed in the constitution as 
originally intended. A second initiative, this time amending the 
California constitution, did pass, but only as to the forms of gaming 
to be included in a compact. Simultaneously, tribes reached agreement 
with a new governor and agreed to a compromise provision governing 
negotiations, but not agreements, for collective bargaining. Even those 
provisions, however, which each compacting tribe is required to enact 
as a ``Tribal Labor Relations Ordinance'' as a condition of obtaining 
the compact, violates the tribe's sovereign right to govern the subject 
of employee labor representation within its jurisdiction, just as other 
governments now do, and strays dangerously far from the gaming 
regulation which the compacts were intended to address. One would be 
surprised to find labor relations provisions in a section of state law 
governing gaming regulation, but that is essentially what results when 
compacts like these contain such provisions. They are inappropriate and 
beyond the scope of IGRA.
    This bill would correctly uncouple the gaming regulatory process 
from a state's (or others') goals or agendas with respect to labor 
relations. In fact, my only criticism would be that it does not go far 
enough in prohibiting negotiations over all unrelated issues. These 
critical programs should not be used as a shortcut to try and coerce 
solutions to complex and serious questions regarding the relationship 
between tribes and states that have been, and will continue to be, with 
us for many years.
    Thank you, Mr. Chairman.
                                 ______
                                 
    Mr. Hayworth. Thank you very much, Mr. Chairman.
    And now our friend, President George of the United South 
and Eastern Tribes. Welcome, Mr. President, and we would 
appreciate your testimony.

STATEMENT OF KELLER GEORGE, PRESIDENT, UNITED SOUTH AND EASTERN 
                             TRIBES

    Mr. George. Good morning, Mr. Chairman, Congressman Rahall, 
and members of the Committee. My name is Keller George. I am 
President of the United South and Eastern Tribes, known as 
USET, which is a confederation of 24 Federally recognized 
tribes ranging from the tip of Florida to Maine and from South 
Carolina out into Texas. We cover 12 States in the USET region. 
And I am also a member of the Oneida Nation Tribal Government.
    Thank you, Mr. Chairman, for convening this hearing to 
address the issues of unionization clauses to tribal-State 
gaming compacts. This is an increasingly controversial issue, 
and it is one that is important for Congress to take a strong 
look at.
    As I have stated in my written testimony, I do not believe 
that this issue has anything to do with whether you support or 
oppose unions. Many enrolled Oneida people are proud card-
carrying members of unions. They are carpenters, construction 
workers, iron workers, and the other skilled tradesmen that are 
needed with strong union representation.
    In addition, when the Oneida Nation begins a new project, 
we open the bidding process to all companies, and we don't care 
if we get a bid from a union shop or a nonunion shop. In the 
end, we approve a bid strictly on the merits.
    Also, I think we can agree that unions have championed many 
workers' rights that we now take for granted. They work for 
good wages, reasonable hours, and decent benefits. A recent 
radio ad said that unions were even responsible for creating 
the weekend, so let me just say on a personal note to any union 
representative here, thank you for that.
    The reason that I agree to testify is that I believe 
Congressman Hayworth's bill raises an important, very important 
to Indian country, an issue that is very, very important to 
Indian country. As you know, a controversy has developed over 
so-called unionization clauses which would be included as part 
of a tribal-State gaming compact, and we know that happened in 
California, and recently in New York the State legislature 
passed a law that would include unionization clauses in future 
gaming compacts.
    Unfortunately, States are using the process in the Indian 
Gaming Regulatory Act to undermine the National Labor Relations 
Act. In other words, one Federal statute is being used to 
overturn a different one, in a way Congress did not intend. I 
am not a labor lawyer, but I know that when Congress passed the 
National Labor Relations Act, it struck a delicate balance 
between the rights of companies and the rights of unions. What 
Congress accomplished, however, is now being undermined by some 
States.
    For example, in New York the legislature passed a law 
requiring that future tribal-State gaming compacts include a 
provision that Indian governments must remain neutral during 
union campaigns. This provision means that Indian nations 
cannot educate their employees on issues relating to 
unionization. As a result, employees are forced to decide 
whether or not they want a union with only the union's version 
of the issue. This one-sided approach is not only unfair to 
employees, it is also contrary to the system established by 
Congress under the National Labor Relations Act.
    As I understand it, Congress through the National Labor 
Relations Act specifically allows employers to express their 
views on whether they thing it is a good idea for the employees 
to organize. States are changing that by making it a breach of 
the compact for an Indian nation to exercise its right to 
express its opinions. That is not fair, and that is not what I 
believe that Congress intended.
    The New York law also undermines another fundamental 
concept of the NLRA, that elections take place by secret 
ballot. The reasons for a secret ballot are obvious. Congress 
recognized that employees should be free to cast a vote for or 
against unionization without fear of retaliation. The New York 
legislation, however, would require Indian-run casinos to 
recognize a union based merely on a card count.
    A card count is simply where union organizers try to get 
workers to sign a card that indicates the worker's support for 
the union, and there is no time limit on it. If they do it the 
first time around, they don't get enough signatures, then they 
can continue and it could go on for maybe years until they get 
the correct amount and then present it, and we have to accept 
that union. Under the New York law, once the union presents the 
Indian nation with cards from a majority of the employees, the 
Nation must recognize that union.
    The problem with a card count, it is a system that can be 
abused both by the employer and the union. Employees obviously 
may vote differently if they know that their vote won't be 
secret. They might be afraid of retaliation by the union; they 
might be afraid of retaliation by the employer. And that is why 
secret ballots make sense. That is why Congress included them 
when it passed the National Labor Relations Act.
    But this issue is more than just a conflict between two 
different Federal laws. This issue also involves tribal 
sovereignty. Sovereignty is a word that gets thrown around here 
quite a lot, and I know because I am probably one of those 
people that throws it around a lot, and I am always careful to 
raise it in a way that doesn't diminish the meaning and 
importance of the word.
    What does sovereignty mean in this case? It means that 
Indian governments ought to be able to decide whether they want 
unions in their government businesses. Again, this has nothing 
to do with being for or against unions. American Indians have a 
long and proud history of participating in trade unions, but an 
Indian government should have the right as a sovereign entity 
to decide whether it is in its best interest to allow unions 
into its work place. And it appears that the Federal courts 
time and time again have agreed with me.
    This Committee knows Indian casinos are government 
businesses, and by law are used to support tribal government 
operations and services. Indian gaming supports schools, health 
care, roads, affordable housing, insurance, law enforcement, 
and many other government activities. Many of you have seen 
firsthand how these revenues have enabled Indian nations to 
support their people.
    In the Oneida Indian Nation's case, not only has it allowed 
the Nation to provide for its people, it has also allowed us to 
be the first Indian nation in the country to turn back Federal 
tribal priority allocation funds, back to the BIA. To date, we 
have turned back more than $3 million in Federal assistance.
    Why do we turn these back, that we are lawfully entitled 
to? It is because of sovereignty. Our people decided that 
sovereignty meant that we would no longer ask for Federal 
handouts, as soon as we were economically able to support 
ourselves. This distinguishes Indian casinos from their private 
sector counterparts in Las Vegas and Atlantic City.
    Without gaming revenues, many Indian governments would no 
longer be able to provide essential services currently given to 
their members. Because this revenue is so essential to many 
Indian governments, I can understand why some Indian nations 
would feel that the possibility of a strike or work stoppage 
would threaten their ability to provide essential government 
services, and I can understand why some Indian nations feel 
that they cannot subject the welfare of their people to the 
threat of a labor dispute.
    This is why I believe that whether you support unions or 
not, Indian nations ought to be left with making the choice for 
themselves. They ought not to be coerced into unions, into 
unionization, or be forced to adopt policies that undermine 
Federal labor law.
    Mr. Chairman, I appreciate the invitation to appear before 
this Committee, and would be glad to answer any questions.
    [The prepared statement of Mr. George follows:]

 Statement of Keller George, President of the United South and Eastern 
 Tribes, Assistant to the Nation Representative, Oneida Indian Nation, 
      Chairman of the Oneida Indian Gaming Commission, on H.R. 103

    Mr. Chairman, Congressman Rahall, Members of the Committee, my name 
is Keller George. I am President of the United South and Eastern Tribes 
(``USET''), which is a confederation of 24 Indian nations ranging from 
Florida to Maine, South Carolina to Texas. In addition to being 
President of USET, I am an enrolled member of the Oneida Indian Nation 
in New York, where I serve as Special Assistant to the Nation 
Representative. I am also Chairman of the Oneida Indian Gaming 
Commission, the principal regulatory body that supervises gaming at 
Turning Stone Casino and Resort, an enterprise of the Oneida Indian 
Nation.
    Thank you for this opportunity to appear before the Committee on 
Resources to present our view on the increasingly controversial matter 
of adding ``unionization'' clauses to tribal-state gaming compacts.
    Included among the members of USET are some of the largest gaming 
tribes in the United States, such as the Mashantucket Pequots, the 
Mohegan Tribe, the Oneida Indian Nation, the Mississippi Band of 
Choctaw, the Seminole Tribe, and the Miccosoukee Tribe.
    In fact, of the 24 Indian nations that comprise USET, 15 engage in 
Indian gaming pursuant to the Indian Gaming Regulatory Act of 1988 
(``IGRA'' or ``the Act''). Nine tribes conduct Class III gaming 
pursuant to a tribal-state compact, and six tribes engage in Class II 
gaming. To the best of my knowledge, none of these gaming facilities 
has a unionized workforce.
    Let me make it clear that the purpose of my testimony is not to 
oppose unions. I have nothing against unions. I think most reasonable 
people would agree--no matter which side of the political spectrum they 
represent--that unions have been responsible for many very positive 
developments in the workplace. They have championed the fundamental 
rights of employees to a safe place to work. They have advocated on 
behalf of employees for reasonable wages and decent benefits. The have 
successfully argued in support of reasonable shifts and for time off to 
spend away from the workplace. In fact, I recently heard on the radio 
an advertisement by a labor union, which said: ``This ad was paid for 
by the people who brought you the weekend.'' So, let me just say on a 
personal note to the union representatives here: ``Thank you for 
that!''
    In addition, at the Oneida Nation, when we begin a new business 
development project, we accept bids from any company regardless of 
whether it is a union shop. And, the bid we approve is based solely on 
the merits of the application. I should also mention that quite a few 
enrolled Oneida men and women are proud, card-carrying members of labor 
unions. We have Oneida members that are carpenters, ironworkers, and 
other trades that have significant union representation.
    Just as the purpose of my testimony is not to oppose unions, I am 
not here to endorse them either. In fact, I believe that this issue 
should have nothing to do with whether you support or oppose organized 
labor.
    The reason that I agreed to testify is that I believe that 
Congressman Hayworth's bill, H.R. 103, the ``Tribal Sovereignty 
Protection Act,'' raises some important issues and questions that 
deserve Congress' attention.
    As the committee is aware, a controversy has developed over so-
called ``unionization agreements,'' which would be included as part of 
tribal-state gaming compacts. In California, it has been asserted that 
tribes were pressured into signing labor agreements before they could 
execute gaming compacts with the governor. In other cases, like New 
York, the legislature has passed a law that would include several 
``unionization clauses'' to be made a part of any future compact.
    My concern is that some states are using the process set up by the 
Indian Gaming Regulatory Act to undermine Federal labor policy as 
endorsed by Congress under a different Federal statute--the National 
Labor Relations Act (``NLRA''). In other words, one Federal statute is 
being used to overturn a different one in a way that Congress did not 
intend. Let me explain.
    I am not a labor lawyer; however, my understanding is that in 
passing the National Labor Relations Act, Congress worked very hard to 
find a middle ground, protecting the rights of employees to determine 
whether they wish to join a labor union. Congress struck a delicate 
balance between the interests of unions conducting organizational 
campaigns and employers to oppose unions.
    The National Labor Relations Act strikes just the right balance of 
allowing the unions and employers each a right to present their 
positions to the employees who must ultimately decide whether they want 
a union.
    What the NLRA has accomplished, however, many states are now taking 
away. These states are using IGRA to circumvent the NLRA by imposing 
rules that tip the delicate labor-management balance strongly in favor 
of unions. These provisions deny employees of Indian-run casinos the 
right to a free choice in deciding whether or not they want to joint a 
union. As a matter of Federal policy, Congress already decided through 
the NLRA that employees should have that free choice. The states' use 
of IGRA to take away the employees' free choice should be illegal.
    Here are some examples of what I am talking about. In New York, the 
legislature recently passed a law requiring that tribal-state gaming 
compacts include a provision that Indian governments must remain 
neutral during certain union organizational campaigns. I understand 
that a similar requirement was included in the California unionization 
agreements.
    This provision means that Indian nations cannot educate their 
employees on issues relating to unionization. As a result, employees 
are forced to decide whether or not they want a union with only the 
union's version of the issue. This one-sided approach is not only 
unfair to employees; it is also contrary to the system established by 
Congress under the National Labor Relations Act.
    The NLRA specifically includes a section protecting the right of 
employers to express their ``views, argument, or opinion'' in written, 
printed, graphic, or visual form. The law expressly states that the 
employer's presentation of its opinions to its employees does not 
constitute an unfair labor practice. Yet states like New York and 
California have single-handedly changed that law by making it a breach 
of the compact for Indian tribes to exercise their right under the 
National Labor Relations Act.
    The New York law also undermines another fundamental concept of the 
NLRA'that elections take place by secret ballot. The reasons for a 
secret ballot are obvious. Congress recognized that employees should be 
free to cast a vote for or against unionization without fear of 
retaliation by either their employer or by the union.
    My understanding is that the National Labor Relations Board has 
repeatedly stressed the importance of a secret ballot. The NLRB stated:
        ``The Board is under a duty to preserve [the secret ballot] and 
        it is a matter of public concern, rather than a personal 
        privilege subject to waiver by the individual voter. Moreover, 
        to give effect to such a waiver would remove any protection of 
        employees from pressures, originating with either employers or 
        unions, to prove the way in which their ballots had been cast, 
        and thereby detract from the laboratory conditions which the 
        Board strives to maintain in representative elections.''
    Despite the obvious importance of secret ballots, the New York 
legislation requires Indian-run casinos to recognize unions based 
merely upon a ``card count,'' in which union organizers can pressure 
their peers and co-workers to sign union authorization cards. Under the 
New York law, once the union presents authorization cards from a 
majority of the employees in a bargaining unit, the Indian nation must 
recognize the union--even if the employees were coerced into signing 
the cards. This destroys the whole purpose of the secret ballot and is 
contrary to the intent of the NLRA to protect the free choice of 
employees in selecting a union.
    I have been informed that in some instances, unions are able to 
collect authorization cards from a majority of employees in a 
bargaining unit, but during the election by secret ballot the employees 
reject the same union that collected cards. Why does this happen? Well, 
it could happen because union organizers pressured employees to sign 
the cards. Or, it could happen because employees thought that 
unionization was a good idea when they signed the card, but they 
changed their minds when they were able to hear the employer's 
perspective.
    Whatever the reason, it is no wonder that Congress felt that secret 
ballots and employer participation in campaigns were important tools to 
maintain the delicate balance between the rights of employers, 
employees, and the unions.
    This issue also involves tribal sovereignty. Indian governments 
ought to be able to decide whether they want to accept unions in their 
government businesses. Again, this has nothing to do with being for or 
against unions. American Indians have a long and proud history of 
participation in trade unions. But an Indian government should have the 
right as a sovereign entity to decide whether it is in its best 
interest to allow unions into its workplaces.
    As this committee well knows, Indian casinos are government 
businesses that by law must be used to support tribal government 
operations or programs; provide for the general welfare of the Indian 
tribe and its members; and promote tribal economic development. Indian 
gaming supports schools, health care, roads, affordable housing, 
insurance, law enforcement, and many other government activities. This 
is an essential distinction between Indian casinos and their private 
sector counterparts in Las Vegas and Atlantic City. Without this gaming 
revenue, many Indian governments would no longer be able to provide the 
essential services currently given to their members. Gaming revenues 
have allowed some Indian nations to end the centuries-old cycle of 
poverty and reliance on Federal dollars.
    Because this revenue is so essential to many Indian governments, I 
can understand why some Indian nations would decide that they cannot 
afford to allow unions to organize in their businesses. I can 
understand why some Indian nations would feel that the possibility of a 
strike or work stoppage would threaten their ability to provide 
essential government services. I can understand why some Indian nations 
feel that they cannot subject the welfare of their people to the threat 
of a labor dispute.
    That is why I believe that whether you support unions or not, 
Indian nations ought to be left with making the choice for themselves. 
They ought not to be coerced into unionization. And, as I have 
mentioned, states should not be allowed to let the one Federal statute 
undermine Federal labor policy as decided by Congress under the 
National Labor Relations Act.
    I appreciate that this Committee is holding this hearing to 
highlight and discuss this important and complicated issue. Thank you 
for the opportunity to participate in this hearing, and I would be glad 
to answer any questions from the Committee.
                                 ______
                                 
    Mr. Hayworth. Thank you, President George, and our thanks 
to all three witnesses.
    Chairman Marquez, in the episode in California, coercion is 
a strong term, but was it your perception that to come up with 
compacts the Governor of California essentially forced tribes 
to adopt rules forcing unionization?
    Mr. Marquez. I wasn't present at the actual compact 
process, but it was my understanding from those who were there 
as well as our legal staff that in the eleventh hour the 
compact was dropped on the table and said basically, ``Agree to 
this, or no compact.'' So to me, no, it is not a strong word. 
It is very appropriate and fitting for the occasion.
    Mr. Hayworth. So again, to amplify, there was in essence 
coercion, take it or leave it, here is the deal, you make way 
for unions regardless of sovereignty to get this compact?
    Mr. Marquez. Yes, sir.
    Mr. Hayworth. Thank you, Mr. Chairman.
    President George, you talked about in your testimony the 
challenge confronting some tribes in terms of delivery of vital 
services if compulsory union agreements are demanded or 
coerced, as we saw in California by virtue of the compact 
situation. Could you amplify on that a little bit?
    Mr. George. Yes, Mr. Chairman. Under the State law that has 
just recently passed in New York, we don't have much of a 
choice. We don't have the ability to say the reasons why we 
believe that unions should not be established in our country. 
We had that obligation.
    We are probably one of the most liberal nations in giving 
benefits to our people. We provide health insurance to all of 
our employees, also with the option of them including in there, 
on a pro rata basis, for their entire families to be included 
in that health insurance policy. It is very liberal.
    We have probably two more holidays than the Federal 
holidays that we have. We have a National Indian Day in New 
York--not a national, but a State Indian Day in New York, where 
we give all our employees that particular day off, and also the 
day after Christmas and the day after Thanksgiving, so there 
have been added--we of course do not acknowledge Columbus Day, 
so we added one holiday to make up for that.
    But we have a very liberal benefits package, and we feel 
like the reason why no unions have started to try to unionize 
with us is because we offer that liberal package and have a 
system. If there is a problem with an employee, there is a 
system that they go through, through our Human Resources 
Department, on getting rid of those issues, similar to what you 
would have with a committee person at a union that goes through 
and advocates for that employee for whatever grievances they 
might have.
    Mr. Hayworth. Thank you, Mr. President.
    Councilman Garcia, what do you see as the future effect of 
the 10th Circuit Court of Appeals Decision, NLRB v. Pueblo San 
Juan, in gaming compact negotiations?
    Mr. Garcia. I think, Mr. Chairman, that the two are tied. 
If the decision had gone the other way, it is a wide open shop 
all over Indian country, because that is the impact that it 
would have. But there are some potential fixes in labor 
relations.
    I think that had the union, the local union in San Juan 
Pueblo, had been courteous enough to come before the tribal 
council at our invitation, we would not have even reached this 
point. But it was the force of the local entity that forced 
itself upon the company, and I think that is really where it 
all started. We were forced, in essence, to pass the ordinance, 
and the ordinance was questioned, and the local union went up 
to the national level.
    But I think that absent any local negotiations, any local 
respectful ways of operating, there is really the answer. And 
it is the same thing with the compacts, that negotiations, the 
tribes have been so willing to negotiate but, you know, there 
are terms within the gaming compacts that are used to--not to 
that respectful approach but different approaches.
    And I hope that this legislation at least will also reach 
the other party, in that the real solutions are mutual 
solutions, and that they are not one party versus another or 
one entity versus another. I think that we are all one nation, 
and if we don't begin to do that as family members, community 
members, extended families, then we will continue to see 
legislation here, legislation there.
    And the solutions are not in that, in a roundabout way. The 
solutions are mutual. We should work toward that end, and if 
this legislation forces us to that point, come to the table. 
Let's talk about it. Let's find some real solutions. And it is 
well-intended, so--
    Mr. Hayworth. I thank you, Councilman Garcia. My thanks to 
all three witnesses for their support of the legislation. 
Again, what I think we are going to see subsequently is a case 
study about how some perceive sovereignty to be situational, 
and that is something that is a cause for concern.
    Having said that, I am pleased to recognize the Ranking 
Member, the Gentleman from West Virginia.
    Mr. Rahall. Thank you, Mr. Chairman. Mr. Chairman, this 
legislation is so abhorrent--mind, I just said this 
legislation, not the author, whom we love very dearly, so it is 
not a personal attack--that I am just simply going to repeat my 
opening statement.
    And since, Mr. Chairman, you were so impressed with my 
colleague from California's eloquent opening statement, I am 
going to yield my time plus what time he has of his own so that 
he may further impress you. I yield my time to the Gentleman 
from California.
    Mr. Miller. I thank the Gentleman for yielding. And 
President George and Chairman Marquez and Council Member 
Garcia, welcome to the Committee and thank you very much for 
your testimony.
    It has been suggested that--and I am more familiar with the 
California situation--that somehow the California situation 
mandates unionization, and let me make it very clear that it 
doesn't, because if it did, all the tribes would have unions in 
their casinos.
    But the fact is, what it says is that people have a right 
to engage in collective bargaining with the casino operators, 
should they so desire to do so and they get the 30 percent 
required to go forward. The fact of the matter is that a very 
small minority of the casinos have union representation within 
their casino operations, among the eligible employees, so this 
isn't about mandating that.
    But let us also understand--and I think I will match my 
credentials on sovereignty, in defense of sovereignty of the 
Indian nations over my 28 years here, with anyone in the 
Congress--that it isn't absolute, just as nations all over the 
world find out from time to time their sovereignty isn't 
absolute, and that is a fact of life.
    That is not to suggest that it should not be robustly 
protected, and obviously the Indian nations have done a very 
good job of that. But we had the situation where we could have 
had free and open gaming, under Cabizon, among all the Indian 
nations in the country, and it is very clear that the Congress 
of the United States decided that that was not going to be 
acceptable, for whatever reasons. Some were good and some were 
not so good. Some motivation was proper and some was improper. 
But the fact of the matter is, an overwhelming majority of the 
Congress said this isn't going to happen.
    So once again the Congress has stepped in, as it has from 
time to time, and developed laws that govern the tribes, and 
part of that was the arrival of compacts. We thought there 
would be more parity between the parties to the compact. 
Seminole obviously changed all that.
    But even the tribes understand it is not a question, Mr. 
Chairman, of whether it is situational. The question is in what 
context does the sovereign, can a sovereign power survive. Even 
the tribes are recognized. They are recognized in Proposition 
5. They are recognized in Proposition--I believe also in 1A, 
that they could not ask the people of California to approve the 
gaming and say that we are not going to comply with the Clean 
Water Act, we are not going to comply with health and safety 
codes, we are not going to comply with those kinds of 
operations. Not that they would, but they had to make an 
affirmative statement that they would in fact provide for that.
    And in the negotiations they also said that they would 
comply with the health and safety codes, that they would 
provide for nonmembers of the tribe to pay into unemployment 
insurance, to collect taxes, to develop a worker's compensation 
policy equal to, or let us know, or get into the State system. 
So they understood that these are conditions that people would 
start to think about when you are talking about a major 
employer, and these are major and successful employers. So they 
agreed to, and later it was reflected in the contract, that 
State inspectors can come onto land to look at health and 
safety codes, to look at occupational codes, to look at food 
safety, to look at water quality issues.
    The question of employment is central to this. That is why 
the question was raised and was put into the compact and was 
put into the propositions, about the employees would be 
eligible for unemployment, they would be eligible for worker's 
compensation. Alcoholic beverage, central to the operation, 
applicable laws would apply, State laws.
    So it is not situational sovereignty. The question was, 
under the system that was set forth by the Congress of the 
United States, that there would be an agreement reached. If the 
tribes had come in and said, ``We're going to serve minors 
alcohol, we're going to use child labor, we're going to do all 
these things,'' obviously the compact would have never been 
agreed, but Proposition 5 would have never passed and 
Proposition 1A would have never passed. Because the sovereign 
understood you are going to have to conduct business in a 
manner which is acceptable to the general community of, in this 
case, the State of California.
    In those negotiations that resulted, the Governor, the 
State legislature, felt very strongly that people ought to have 
a right to engage in collective bargaining. It goes to the 
conditions of employment on the reservation, just as worker's 
compensation, just as unemployment and others do.
    I don't think this is a question of bad faith. I mean, I am 
very disturbed in the legislation that it says that the 
Governor of the State of California acted in bad faith. I don't 
think that is in bad faith. And the suggestion, and Chairman 
Marquez, I disagree with you, a take it or leave it offer is 
not coercion.
    Take it or leave it offers are made every day in business 
transactions all over the country and in negotiations in this 
Congress and in your tribe and in your family and a lot of 
other places. You will say, ``Hey, you want to use the car 
Saturday night? Be home by 10. You don't want to be home by 
10:00, don't use the car.'' The person figures out how 
important it is I use the car on Saturday night. So I think we 
ought to be careful about the use of these words, because the 
suggestion obviously is a reflection on our Governor and also a 
reflection on the process.
    So what are we left with? We are left with a piece of 
legislation, that its intent and purpose is to deny people the 
access to collective bargaining. I happen to believe that 
collective bargaining or the access to collective bargaining is 
a proper subject for the compact negotiations, the terms and 
conditions of employment on a reservation by a major economic 
entity.
    And so I think it is very important that we understand what 
this legislation is about. This legislation isn't saying 
sovereignty and only sovereignty, because it isn't saying we 
shouldn't use IGRA to negotiate health and safety codes. It 
isn't saying we shouldn't use IGRA to make sure that liquor 
laws are applied with, we shouldn't use IGRA to make sure that 
child labor is applied with, abusive work places aren't applied 
with. We wouldn't do that. That would be an unacceptable 
definition of sovereignty. We wouldn't do that with any other 
sovereign, with, you know, a city, county, State situation.
    And so I really think that we have got to have some clarity 
here to what it is, and I appreciate--look, many of the 
situations you describe are traditional labor negotiations that 
go on, day in and day out, and you have had some have had 
success. You with the Communication Workers. You didn't do, I 
guess it was Millworkers, or I don't know who was trying to 
organize the sawmill. And you are right, you are right in your 
lawsuit, that the NLRB does not apply. That was a determination 
lawsuit. You are right to pursue that, absolutely.
    But I think in this situation we ought to clearly 
understand what this legislation is about, and obviously if I 
have time, Mr. Chairman, I would certainly welcome response by 
any of the panelists to anything I have said. You may and 
probably very well do disagree with me.
    Mr. Hayworth. Are there any responses you would like to 
offer?
    Mr. Marquez. I do. With all due respect, sir, when you are 
left with the alternative of not having revenue share, not 
having your special distribution share by the State of 
California, not having funds to operate in my tribe, to write 
health care for my membership, that is not an alternative.
    And I take issue with the fact that you say I had a choice. 
We did not have a choice. You know as well as I know, the 
process starts 10 years from the day it was finalized. So just 
to walk away from the table at the last hour when you are told, 
``Take it or leave it,'' what are you left with? A court case 
that says you can't operate. That is not a choice.
    Mr. Miller. That is the law of the land.
    Mr. Marquez. Yes, but you make it sound like that we had 
other alternatives. We did not.
    Mr. Miller. No, I didn't say you had other alternatives. I 
said this is a rough and tumble negotiations, but that the 
suggestion that--
    Mr. Marquez. With all due respect--
    Mr. Miller. --the offer itself is coercive, I don't think 
is accurate.
    Mr. Marquez. With all due respect, you made it sound like 
we had another avenue to pursue. We did not, so I just want to 
be clear on that. And that is all I have to say, sir. Thank 
you.
    Mr. Miller. Thank you, Mr. Chairman.
    Mr. Hayworth. Thank you, Mr. Miller.
    The Gentleman from Michigan.
    Mr. Kildee. I appreciate the testimony of my friends, and I 
really have no questions of you, look forward to working with 
you on many other issues. Thank you very much for your 
testimony.
    Mr. Hayworth. Thank you very much.
    The Gentleman from Oklahoma? The Gentlelady from 
California, any other questions?
    Ms. Solis. Thank you. I also appreciate the testimony given 
by the witnesses, but as someone coming from the State 
Legislature in California, we spent many, many years discussing 
this matter, and in fact I worked very hard with some of the 
local unions to see that we could work toward agreements, 
collective bargaining agreements.
    And I feel very strongly about that aspect because many of 
the folks that work at these different casinos and halls are 
not necessarily just Native American. Many of them, especially 
in southern California, happen to be Latino, at least in 
southern California. I want to make my remarks specific to that 
area.
    And there are a lot of folks that are striving to have a 
better life, as well. They don't have health care benefits. If 
it is not given to them in their work place, they are not going 
to get it where they live, in Palm Springs or other areas, 
because they are high distressed areas. We have a lot of 
people, especially from my population, that are uninsured, that 
need to have some sense of security to make better wages.
    That is not to say that you don't provide in some way maybe 
competitive wages, but there is also that sense of having some 
security and being able to be treated right, and not being 
harassed or being discriminated because maybe you are not a 
Native American, as well. I mean, I have heard of those 
instances as well.
    So I am empathetic to what you have to say, but I am also 
equally concerned about the work force, particularly in the 
case of California, where I know many people right now are 
losing their jobs. And let's face it, the service industry is 
one area right now where a lot of folks are unemployed, and 
particularly in California.
    I know that there are issues with respect to trying to 
provide other health-related services and educational services, 
and I am wholly in support of trying to provide that. In fact, 
I even have a bill to recognize a Native American organization 
group in my district, not for the purposes of gaming but so 
that they could receive assistance through the Federal 
Government to provide health care and education.
    To me, those are the No. 1 issues about keeping family, 
keeping unity, and making sure that people have good working 
conditions, and I think we can agree on that. I haven't heard 
anyone really say that they are not for providing a good work 
place, but again, there are laws in place in California. We do 
have high standards, and I would hope that all of us could work 
toward that.
    I would just want to associate my comments with my 
colleagues on this side of the aisle, and just state my 
opposition to this legislation. I don't think we have to go 
this route. And I know that there are other Native American 
tribes who are much better off financially than some of the 
tribes in California, and they can afford to maybe make those 
payroll payments that they need to. But it is not all 
competitive. I mean, it is not all crystal clear.
    So I would just ask you to take a look at those factors and 
to work with those of us that really do want to see some good 
work happen in the next few years. And I really am disappointed 
that this piece of legislation has to be discussed here in this 
manner, because I do take it personal, that it is a shot at our 
Governor and at those of us that really do care about trying to 
provide some protections for people in the work place and 
obviously on tribal lands.
    Thank you.
    Mr. Hayworth. I thank the Gentlelady for her comments.
    In the time remaining, do you Gentlemen have any comments 
you would like to address to the Gentlelady and to the 
Committee? Yes, sir.
    Mr. Garcia. Mr. Chairman, no, I just wanted to relay my 
thanks from our tribal council and from our Governor, Wilford 
Garcia, for this opportunity, and that I know it is a hard job 
for all of you, and I know that you also do what is best in 
your heart for the real solution. So thank you for this time.
    Mr. Hayworth. Thanks. Thanks to you, Councilman Garcia. And 
Chairman Marquez?
    Mr. Marquez. I just want to say thank you as well, and to 
point out the fact that San Manuel, we are not anti-labor. We 
don't propose that we don't allow unions into a facility. 
Obviously, we allowed that to take place prior to Prop 1A and 
the compacts.
    I am proud to state the fact that the people who have 
unionized under the CWA are looking to get out of that union 
because they no longer want to be part of that union because we 
have offered better benefits than the union allows. You bring a 
good point. We can do that. We can provide 100 percent medical 
and the likes, so we do provide a better work place. What I 
don't agree with is being told by another sovereign that we 
have to do this. Give the choice back to us.
    Thank you.
    Mr. Miller. Mr. Chairman, will the Gentleman yield? Just 
yield, if I might, on that comment.
    The choice is really there because, as you said, if the 
people want to leave the CWA, they will make that decision to 
leave. The fact is that you can probably argue that you have 
made organizing very difficult by the fact that of jobs that 
you do provide, the benefits that you do provide, the wages 
that you do provide. Otherwise, you know, people would be in 
there in constant turmoil, trying to organize, thinking this is 
ready for it.
    I mean, that is a comment on the fact that the law in many 
ways is working. Collective bargaining is a means by which 
employees who feel disenfranchised or somehow disrespected in 
some fashion with respect to their job, have an outlet to try 
to bring an action against the employer. The fact that that 
isn't happening on these properties suggests that they are 
probably very well run, and they are offering not only 
competitive but maybe better jobs than in the surrounding area.
    But the choice is there to ask for that because you don't 
think your employer is responding, and the same choice is what 
you may be talking about, to say ``We no longer want to 
participate in the unionized operation, in the collective 
bargaining arrangement, and we therefore want to petition for 
decertification.'' I mean, so the fact of the matter is, that 
is about the way it is supposed to work, and the choice is 
there.
    You know, the suggestion was in one of the testimonies that 
this mandated that you had to have the union. It doesn't do 
that at all. And so it sounds to me like it is kind of working 
the way it should, with people freely determining whether or 
not they want to trade their work place or not.
    You know, my mother used to run a restaurant, and the 
unions went to organize her restaurant. She put it up to all 
the employees and they said no. So then they started picketing 
it because, you know, her son was a Congressman, and she kept 
saying no and no and no and no. I never ate at my mother's 
restaurant, OK, because I couldn't cross the picket line. But 
her employees made a choice, you know. That is kind of the 
system.
    Mr. Marquez. Our tribe made a choice to allow unions to 
come in and do that--
    Mr. Miller. I understand that, right.
    Mr. Marquez. But also, as your mother has done, it is also 
a sovereign right to say no.
    Mr. Miller. No, no.
    Mr. Marquez. And a tribe should have that right--
    Mr. Miller. It is the right of her employees to have that 
choice.
    Mr. Marquez. Yes, yes, but the tribe should have that right 
to allow a union to come in or to adopt an ordinance to allow 
the unions to come in. That is a tribal decision.
    Mr. Miller. I appreciate that, but I still think it is a 
legitimate part of compacting.
    Mr. Hayworth. Any other--
    Mr. George. Mr. Chairman?
    Mr. Abercrombie. Mr. Chairman?
    Mr. Hayworth. I would be happy to recognize the Gentleman 
from Hawaii. I just think President George had a comment, I 
believe.
    Mr. George. Mr. Chairman, I too would like to give you my 
thanks for having us here and letting me reiterate the nation's 
views. But under New York law it is different than in 
California. It is very different, the law that the legislature 
passed, and that is what we are concerned about.
    We have been operating our casino for almost 10 years now 
under the--when we got our compact in 1993, and the compact 
works. But in this new legislation, that we have to allow 
unions to come in and collect cards, we don't have--we have to 
remain neutral. We can't say these are the benefits that we 
have offered, this is what the jobs start with.
    I dare say that we are probably $2 over the minimum wage 
for entry-level jobs, and that is why we are able to get our 
employees and retain our employees with health insurance, 
liberal benefits for time off, liberal benefits for sick time 
and all of those types of things. But with this we don't have 
any option. We have to let them come in. Say if we have 2,000 
employees and they get the majority of cards signed over a 
period of time, the law says we have to recognize that union, 
and that is pretty much what we are concerned with.
    So we have been in that situation, too, because we do offer 
jobs above the pay scales that you can get in the general 
community or other jobs in the State. We have been able to 
retain our employees, and we have a very satisfactory level. 
That is why we haven't had any attempts of unions to organize 
up to now, but it is mandated by law, and that is what we are 
saying.
    But if we had that same authority or same ability such as 
grocery stores that are in the news lately, that they can tell 
their employees, ``These are the benefits you are going to 
get,'' and offset what the unions are telling them that is all 
we are saying.
    I am not against the union and I am not necessarily for 
unions. I have never belonged to a union because the majority 
of my time of being around was in the military and then working 
for my nation. So we are not opposed to unions, but there 
should be a level playing field on how the process is. That is 
all we are saying, and we appreciate this, because the debate 
has started and I think we have to take a closer look at this, 
because some States, as I said, are using this one law to 
bypass another law, and we are very concerned about that.
    Mr. Hayworth. The Gentleman from Hawaii, Mr. Abercrombie.
    Mr. Abercrombie. Well, I couldn't help but observe, Mr. 
Chairman, that even though Mr. Miller couldn't eat in his 
mother's restaurant, he apparently was able to find some other 
venues. He doesn't look too undernourished to me.
    [Laughter.]
    Mr. Hayworth. Rising to the defense of my colleague on the 
minority side--
    Mr. Abercrombie. Well, Mr. Chairman, I might observe you 
are not exactly the one that should be rising to--
    [Laughter.]
    Mr. Hayworth. I was going to point out, Mr. Abercrombie, 
that though you are blessed with the figure of Adonis, you also 
perhaps have some--
    Mr. Miller. I think we ought to stop this whole 
conversation.
    Mr. Hayworth. But we are not going to go there any longer. 
We all appreciate the chance to understand that there is a 
preponderance of physical evidence that we certainly enjoy the 
finer points of gourmet eating.
    Mr. Miller. Mr. Abercrombie has been known as a scratch 
knife and fork man for a lot of years.
    Mr. Abercrombie. Mr. Chairman, I will admit that I did bulk 
up for winter, but I have seen the light.
    Mr. Hayworth. Well, that is good to know, and we look 
forward to other nutritional guidelines in the days ahead, 
perhaps not through an act of Congress but informal advice for 
all of us.
    We also welcome to the dais the Gentleman from Idaho, and 
he is happy to be here. And I would ask, as I thank our 
witnesses for being here with this panel, we will continue to 
have the debate and we appreciate you coming in and being with 
us today. Thank you for your time and your testimony.
    As we welcome up panel five, I would also ask unanimous 
consent that the Gentleman from Oklahoma, Mr. Watkins, be able 
to join us here for the testimony. Objection?
    Hearing none, so ordered.
    Mr. Hayworth. And we welcome Congressman Watkins even as we 
welcome Governor Bill Anoatubby of the Chickasaw Nation, 
Principal Chief Chad Smith of the Cherokee Nation, and Gregory 
Pyle, the Chief of the Choctaw Nation of Oklahoma, as they come 
to testify on H.R. 3534, to provide for the settlement of 
certain land claims of the Cherokee, Choctaw, and Chickasaw 
Nations to the Arkansas River bed in Oklahoma. Thank you 
gentlemen for coming. Governor Anoatubby, welcome. Appreciate 
your coming, Bill, and look forward to your testimony.

    STATEMENT OF BILL ANOATUBBY, GOVERNOR, CHICKASAW NATION

    Mr. Anoatubby. Good morning, Mr. Chairman and members of 
the Committee. Thank you very much for including us in this 
hearing, and to say we are privileged to be here to speak to 
the gist of an issue that is certainly of great importance to 
us and to the other two tribes here. You have my written 
testimony, Mr. Chairman, and we certainly know that is part of 
the record so we will keep the comments brief this morning, or 
excuse me, this afternoon.
    This is an issue that has been on our table for many, many 
years. In fact, as a result of the Supreme Court ruling in 
1970, these three tribes have been restored ownership of the 
bed and banks of the Arkansas River, and you will hear more of 
the details regarding that ownership and history of that 
ownership and the legal history from the other two witnesses.
    Let me just simply express a few thoughts here. For 32 
years, actually for 95 years, the three tribes were denied 
access, denied the fact that they owned this property. Then 
after the Supreme Court ruling, we have actually been denied 
access. It is time for us to bring this to a settlement.
    At this point we are further ahead and closer to settlement 
than perhaps we have been in many years.
    We are thankful that this Congress is taking up this 
legislation. We are thankful for the authors, for Mr. Carson 
and his effort to bring this bill forward, and we are also 
thankful at this point for the Bureau of Indian Affairs; some 
people may wonder how you could hear those words uttered from 
the lips of a tribal chairperson and a Governor, but we are 
thankful that they have come to the table and appointed a 
negotiation team to deal with this. We are so very close now in 
coming to agreement.
    This legislation that you have before you is beneficial not 
only to the Indian tribes in question but also to many citizens 
of the State of Oklahoma, especially those who are residing in 
property, on property, or utilizing property that is in 
question here. So this is not just a good thing for the tribes 
but it also is good for Oklahoma to settle this issue.
    I listened to Mr. Smith's testimony, and I think that if 
you listened carefully you see that it shows some encouragement 
and that there are some decisions that we are getting close to 
making. But one thing that he indicated that I respectfully 
request that this Committee please do not take into account and 
listen wholeheartedly, we do not need to delay this legislation 
in any way.
    In fact, this bill has brought us closer and closer to 
reaching a settlement or calculating a number that we can agree 
to. Also the court case, the judge is awaiting how this 
legislation should proceed. So I would ask humbly that this 
august body continue to consider this legislation and to move 
it forward. We have been trying to resolve this issue for over 
30 years, and if it weren't for this legislation and the court 
case, it is highly likely we would not be where we are today 
and as near to a settlement as we are.
    So I am here to support the legislation. I am here to ask 
your consideration and your support for it, and I ask you 
please, move it forward. Thank you.
    [The prepared statement of Mr. Anoatubby follows:]

 Statement of The Honorable Bill Anoatubby, Governor, Chickasaw Nation

    Mr. Chairman and members of the Committee:
    I am Bill Anoatubby, Governor of the Chickasaw Nation. It is a 
pleasure for me to appear before this committee and I appreciate your 
inviting me to do so. As you will be hearing (or have already heard) 
from the other tribal leaders, I will keep my remarks brief.
    This committee is presented with the opportunity to begin to right 
an injustice on behalf of the United States that has endured for almost 
a century. We are here before you after an almost 40-year struggle in 
dozens of courts, including the U.S. Supreme Court; however, it has 
been made abundantly clear to all who have visited this situation that 
it can only be resolved by Congress. We seek your help.
    Please allow me to briefly outline the history of this matter that 
brings us to where we are today. In the early 19th century, these three 
tribes entered into treaties with the United States Government to give 
up millions of acres of land in the east and to remove westward to 
allow for growth and expansion of the country's frontiers. In exchange, 
we were conveyed lands in what is now Eastern Oklahoma. For the 
remainder of the century, the tribes had complete governance over their 
respective territories and domains; however, subsequent actions by 
Congress, particularly the allotment process under the Dawes Act, 
reduced their domains to a little more than 100,000 acres. Those lands 
include the bed of the Arkansas River from its confluence with the 
Canadian River eastward to the Arkansas-Oklahoma state line, 
approximately 65 miles.
    It has been determined through various court decisions and 
agreements that from Muskogee, Oklahoma to the confluence of the 
Canadian, Cherokee Nation owns the entire riverbed. From the Canadian 
confluence down to the Arkansas State Line, the Cherokee Nation owns 
the north half of the riverbed and the Choctaw and Chickasaw nations 
own the south half. Due to meanderings of the river over the past 
century, the wet bed and dry lands of the bed comprise over 25,000 
acres of land, the title to which is held by the United States in Trust 
for the three tribes.
    The tribes' problems began when Oklahoma became a state in 1907. 
Relying on an erroneous opinion in 1908 by the solicitor, the U.S. 
Department of the Interior incorrectly assumed that Oklahoma became the 
owner of the riverbed. In 1946, the government began construction of 
the Kerr-McClellen Navigation System on the river. Because of the 
misplaced belief that the state of Oklahoma owned the riverbed, the 
tribes were neither consulted nor compensated for the taking of 
thousands of acres and extensive damage to their property.
    In 1970, the U.S. Supreme Court ruled that the title to the 
riverbed was in the tribes when Oklahoma became a state and, therefore, 
it could not have passed to the state under the Equal-Footing Doctrine. 
Thus, the tribes continued to own the riverbed as they did in 1907 and 
1946, and as they do today.
    For 60 years prior to 1970, the Bureau of Indian Affairs did not 
exercise its trust responsibility to protect and exploit these tribal 
lands. As a result, adjacent landowners began to occupy the portions of 
riverbed that were dry land and continue to be in possession today 
depriving the tribes of the use of their dry surface lands. Mineral 
interests either went undeveloped or were exploited by others claiming 
to own them. Millions of tons of sand and gravel were mined from the 
riverbed and used to construct the structures required in the 
navigation system without compensation to the tribes. The tribes have 
lost tens of millions of dollars for which they would have otherwise 
been compensated but for the mistaken belief by the government that 
they were not the rightful owners.
    In 1989, the tribes brought suit in the Claims Court seeking 
damages for the failure of their Trustee to properly manage this 
property. That litigation is still pending but would be dismissed if 
this settlement is approved.
    For 20 years after the 1970 decision, the boundaries of the tribal 
lands went undetermined. Finally, in 1990, the Bureau of Land 
Management began and has completed a cadastral survey of the riverbed 
lands. However, due to the fact that the boundaries were created by 
river meanderings, the title to the lands remained in question until 
the survey was completed about 1995. During this 25-year period, it was 
difficult to properly and completely exploit the oil and gas interests 
due to the title situation. Thus, income was not received that would 
otherwise have been paid to the tribes, contributing to the tens of 
millions of dollars already lost.
    The tribes have spent countless hours over the past 30 years and 
hundreds of thousands of dollars calculating their losses, meeting with 
various government officials and litigating in the courts. Our experts 
and advisors have meticulously studied the records and made estimates 
and appraisals to determine those losses and evaluating our riverbed 
property. You have or will have that information before you.
    As I said earlier, the government and the tribes can only extricate 
themselves from the quagmire they find themselves and achieve justice 
with your help. The legislation you are considering will benefit 
everyone concerned. The tribes will finally be compensated for the 
long-standing damages they have endured because of the circumstances 
that bring us here. The litigation in the U.S. Court of Claims will 
end. The tribes will disclaim their interest to the thousands of acres 
of land occupied by others who thought they were the rightful owners. 
For this, the tribes would also be fairly and justly compensated. The 
government will be relieved of its Trust responsibility to remove the 
thousands of third-party occupants which could take up to 20 years to 
litigate at a cost of tens of millions of dollars. But, just as 
importantly, with the passage and implementation of this legislation, 
this tragic saga would finally come to an end.
    Thank you very much for having me here today. I respectfully ask 
you to approve H.R. 3534.
                                 ______
                                 
    Mr. Hayworth. Thank you, Governor, and now we will hear 
from Chief Smith. Welcome.
    Mr. Smith. Mr. Chairman, with regard, Chief Pyle goes next.
    Mr. Hayworth. OK, then, we will turn to Chief Pyle and we 
will await Chief Smith after a while.

STATEMENT OF GREGORY E. PYLE, CHIEF, CHOCTAW NATION OF OKLAHOMA

    Mr. Pyle. Thank you, Mr. Chairman, and members of the 
Committee. My name is Greg Pyle. I am Chief of the Choctaw 
Nation of Oklahoma. Today I had submitted 10 pages of written. 
I will condense it down to one page, if it pleases everyone, 
for time constraints.
    I am here today to support passage of a long-awaited 
resolution, the tribal claims relating to the Arkansas River 
bed in eastern Oklahoma. That would be H.R. 3534, introduced 
and supported by Congressmen Carson, Watkins, Kildee, and 
Largent. The Choctaw, Cherokee, and Chickasaw Nations come 
before you today to present a proposal of settlement of 
disputes regarding Arkansas River bed. We prefer a settlement 
rather than litigation to displace thousands of occupants along 
the river.
    Prior to the 1800's, the three tribes lived in the 
southeastern region of the United States. The lands occupied by 
the tribal people made tempting targets for European neighbors 
moving in during the late 1700's and early 1800's. Aggressive 
efforts were made to force the tribal people to move off their 
lands, and in 1831 the Choctaws were the first of three tribes 
to travel the Trail of Tears to what is now Oklahoma.
    As part of the resettlement process, the tribes signed 
treaties giving up lands in the homelands and taking ownership 
of lands and waters in the new territories. The terms of the 
treaties were dictated by the United States, and included 
transfer in fee simple of all title and rights to the riverbed 
of the Arkansas River.
    Over the course of the years, the riverbed has shifted, 
creating over 7,500 acres of dry land. Farmers moved onto the 
property and are farming it today without legal authority. 
Also, sand, gravel, coal and gas resources associated with the 
river were extracted and sold by non-Indians, without any 
consideration or compensation to the tribes. This creates a 
problem with tribal ownership being asserted.
    In the 1940's the Kerr-McClellan Dams and power generation 
system was developed and built on the Arkansas River. Without 
any regard to tribal rights, millions of tons of sand and 
gravel and stretches of useable land associated with the river 
were taken by the Federal Government. To this day, there has 
been no compensation to the tribes for this taking. This is 
possibly the only instance where tribal trust property 
supposedly under Federal protection was taken by the Federal 
Government without any consideration or compensation.
    In 1970 the Supreme Court held that the three tribes owned 
all rights to the Arkansas River and its resources. In 1989, 
action was filed in Federal court for damages for mismanagement 
of tribal trust properties.
    We do not want the disruption of personal lives and 
fortunes which would be caused if the United States had to file 
between 600 and 800 cases to clear the tribal title and 
displace current possessors of the 7,500 acres of land on the 
river and that the tribes are reclaiming. Once the first acts 
are filed, title to property along the river could be clouded 
for decades.
    We proposed to the congressional committee that 
compensation be paid from the Federal Government rather than 
penalize the individuals using the property along the riverbed. 
The tribes proposed legislation beginning at over $100 million, 
and now proposed at $41 million, in compensation of loss of 
tribal resources, and it buys 7,500 acres of land, minerals, as 
well as makes provision for the government to take steps to 
clear the title of land for the current occupants. The bill 
also contains a one-time payment of about $8 million for the 
continued production of electricity by power heads located on 
the river.
    Simply speaking, the tribes are willing to give up all 
their rights, past and present and future, in the 7,500 acres 
of land created by this wandering Arkansas River, in return for 
these payments. Thank you.
    [The prepared statement of Mr. Pyle follows:]

   Statement of The Honorable Gregory Pyle, Chief, Choctaw Nation of 
                                Oklahoma

    Mr. Chairman, Members of the Committee, ladies and gentlemen.
    My name is Greg Pyle and I am the Chief of the Choctaw Nation of 
Oklahoma. I am here today to support the passage of a long-awaited 
resolution to the tribal claims relating to the Arkansas Riverbed of 
Eastern Oklahoma, H.R. 3534, introduced and supported by Congressmen 
Carson, Watkins, Kildee and Largent. I say long awaited, since claims 
involving the River itself and the resources and lands associated with 
it have been before the Courts, the Tribal Councils and the Congress 
continuously over the past 35 years. We are asking today for 
legislative support which would lay to rest all these issues, and which 
would benefit the United States, the Tribes and all the citizens of 
Oklahoma. We are asking for your support today as a matter of equity 
and as a matter of fulfilling the government to government and trust 
relationships between our tribes and our Country.
Background
    Prior to the 1800s, the Choctaw and the Cherokee and Chickasaw 
Nations lived, and had lived from time immemorial, in the Southeastern 
region of the United States. We were good friends to the colonists, 
supporters of the fledgling Nation and had been very successful in 
accommodating our agrarian lifestyle to that of our new, European 
neighbors. Unfortunately, our lands made tempting targets, and soon, 
various factions were lobbying to take over the lands of the Choctaws. 
For a period we resisted, but, with the other tribes of the Southeast, 
we were forced to give up our lands. Our Tribes were forcibly removed 
to what was then the newly purchased territory of Oklahoma, the so-
called Indian territory. This removal, known as the Trail of Tears, 
took place in stages in the 1830s. As part of this policy and 
resettlement, our Tribes signed treaties giving us title to lands and 
waters in the new territories. These treaties, the terms of which were 
dictated by the United States, included transfer, in fee simple, of all 
title and rights to the riverbed of the Arkansas River.
    The ownership by the Tribes of the River, its bed and its 
resources, was renewed by the Federal government by the Act of April 
30, 1906 (34 Stat. 137), which held that all the rights of the tribes 
were reserved to them, but were to be held in trust by the United 
States. Unfortunately, when the State of Oklahoma was admitted to the 
Union, a Solicitor in the Department of the Interior gave an erroneous 
opinion on the River's ownership. In response to a State request for 
clarification, the Solicitor gave an opinion stating that the River was 
now the property of the State. Strange as it seems at this time, no one 
challenged this opinion (as a matter of fact, it is questionable at 
this time as to how many people knew of it). Based on this opinion, the 
State treated the river as part of its property, and dealt with the 
United States and other parties as if it owned the River. The Tribes 
complained a number of times that their rights in the River were being 
ignored, but the United States, which under law had the responsibility 
to protect the interests of the Tribes, refused to take any action.
    During the 50 years following the creation of the State of Oklahoma 
and the erroneous opinion, two major changes in the River occurred. 
First, the riverbed of the Arkansas River shifted. Over time, the 
course of the River moved in a meandering fashion. Through the process 
of accretion and avulsion, former riverbed became dry land. More than 
7,500 acres of land was created in this fashion. Though by law, this 
land became part of the tribal property, no Federal agency took this 
into consideration. I don't know what it is like in your States, but in 
Oklahoma, if land, which is good for farming or pasturage, is left 
vacant, the neighboring farmers have a tendency to move in. That is 
what happened. Over the past 80 years, non-Indian farmers have moved 
onto the property and are farming it or using it, without any legal 
authority. At the same time, under the authority from the State, sand 
and gravel and coal and gas resources associated with the River were 
extracted and sold by non-Indians, without any consideration or 
compensation to the Tribes. This causes a problem, now that the tribal 
ownership has been reasserted.
    Second, in the 1940's, as part of the Federal move to control 
floods and watercourses, the giant Kerr-McClellan Dams and power 
generation system was developed and built. Without any regard to tribal 
rights (which at the time existed but were not recognized) millions of 
tons of tribal sand and gravel and stretches of useable land associated 
with the River, were taken by the Federal Government. To this day, 
there has been no compensation to the Tribes for this taking. This 
constitutes the only instance, of which we are aware, where tribal 
trust property, supposedly under Federal protection, was taken by the 
Federal government without any consideration or compensation.
    In 1965, the Tribes finally gained permission to sue the State of 
Oklahoma for clarification of the title to the Arkansas River. In 1970, 
the United States Supreme Court, 396 U.S. 620 (1970), held that the 
three Tribes, together, owned all rights to the Arkansas River and its 
resources.
Current suit against the government
    For the last three decades, the Tribes have sought redress for the 
wrongs associated with past mismanagement by the Interior Department of 
the River. These include:
     Failure of our trustee to protect Indian interests to the 
7,500 acres of new property;
     Failure of our trustee to protect Indian interests to 
minerals, including sand and gravel and coal and gas.
     Failure to compensate the Tribes for the taking of 
resources involved with the Kerr-McClellan Dam system, takings which 
were done by the Federal government itself;
     Failure to make plans for the utilization of these 
properties for the benefit of the Tribes in the future.
    Sporadic negotiations with the United States have been 
unsuccessful, despite an Interior opinion in the 1970s that if the 
United States had known when the water projects were built that the 
tribes owned the river, compensation would have been paid. While 
negotiations have had their ups and downs over the years, experience 
has taught us that no one will protect our interests, if we do not do 
it. For that reason, an action was filed in Federal Court in 1989 for 
damages for mismanagement of tribal trust properties. Delay after delay 
has happened, and we are still in Court with the Department of the 
Interior over these charges.
    In the meantime, another factor has developed. The United States 
now realizes that as the trustee for the Tribes, it is the 
responsibility of the government to sue the current occupants of the 
land to quiet title and gain possession for the Tribes of the 7,500 
acres in new property. These lawsuits would involve at least 600 
litigants (that we have identified). One such action, which was filed 
by the United States, was dismissed without prejudice of renewal, for 
procedural grounds. However, the precedent for such suits has been 
established.
    If these actions go forward, total chaos regarding property rights 
and values along the Arkansas River will occur. Unless a settlement can 
be reached, the United States will have to file between 600-800 cases 
involving thousands of litigants and occupants, to clear the tribal 
title and displace current possessors. Once the first actions are 
filed, title to property along the river will be clouded for decades. 
The Tribes do not want this end to the tale, but know they must come to 
Congress to protect their rights. Mr. Chairman, let me state on behalf 
of the Choctaw Nation that we hope there will never be a need for these 
lawsuits. We do not want the disruption of personal lives and fortunes 
which these suits will cause, and we know that the political costs of 
such actions will be great. At the same time, the status quo, where the 
rights of the Tribes have not been protected, is unacceptable.
The proposal
    Due to the delay in the lawsuits and the cost involved in pursuing 
them, along with our desire to resolve these issues in such a way that 
does not disrupt the lives of any Indian or non-Indian, we have joined 
with our fellow Tribes, the Cherokee and the Chickasaw, to put forward 
a legislative proposal to resolve, once and for all and in a 
comprehensive fashion, all issues regarding the Arkansas River. In its 
entirety, the proposal is:
     Agree to pay the Tribes a sum of approximately $41M for 
compensation of loss of tribal resources for the last 9 decades of BIA 
mismanagement. It also buys 7,500 acres of land and the sand and 
gravel, coal and gas, and any other minerals, from the Tribes and makes 
provision for the government to take steps to clear the title of this 
land for the current occupants. Also, the bill contains a one time 
payment of about $8 M for the value of land used for the continued 
production of electricity by powerheads located in the River.
     The three Tribes agree to give up all rights to the 7,500 
acres of land transferred, and to settle all claims against the U.S. 
for damages from past mismanagement. No interest on the past claims is 
sought.
     Funds would be deposited in tribal shares in accounts 
which the Tribes could use for various social, educational, health and 
other programs, including the purchase of very specifically designated 
property to replace part of the 7,500 acres transferred.
    That's essentially it. Seems simple enough, and it is, though the 
attorneys take 4 pages to say it in statutory language. The Tribes, in 
exchange for one payment, give up all rights, past, present and future, 
in the 7,500 acres of land created by the Arkansas River, and claims 
for damages arising for past mismanagement, and any rights to resources 
taken from the property in the future.
    We have a representative of the Administration here to testify 
today, but it has been plain for some time that the Department of the 
Interior has supported the concept of such a political solution without 
caveat. Let's be plain in this statement, this goes way beyond a simple 
lawsuit. This is a problem crying for a political solution. This is the 
only taking of tribal property for a Federal use, without compensation, 
on record, and it continues to this day. The fact that this was all 
based on one Solicitor's misunderstanding of the law is irrelevant. 
This is where we are. The people in Interior, and in my opinion, many 
in Justice, are aware of this fact and want there to be an end to these 
problems.
    Our problem in resolving this with the Departments seems to be a 
matter of money, and to be more specific, a matter of budget. For 
decades, the Federal government has offered to settle for a $10 M token 
payment. IN ALL OF THAT TIME, NO RATIONALE FOR THIS AMOUNT HAS BEEN 
PRODUCED. We have been told this is the cost the Federal government 
would spend to sue for possession of the property. We have been told 
this is what the ``nuisance value'' of dealing with the Tribes is going 
to be. We have been told that this is the amount, because that's all 
there is.
    To be blunt, Mr. Chairman, we are caught in a budget squeeze. The 
Department of the Interior is concerned that any settlement reached 
will ultimately have to be accommodated within their budget allocation. 
Likewise, the Department of Justice is concerned that the claim will 
come out of its judgment fund. We know times are hard with budget 
constraints, but we are tired of being the pawns in a Departmental 
budget chess match.
    In contrast, the Tribes, with Federal support, have conducted 
several studies to show that the value of the land and the resources 
the Tribes have lost, or which will be lost, is much higher. 
Originally, we started this process over 15 years ago asking for over 
$100 M. dollars. Through a process of ``negotiating with ourselves'', 
we have now arrived at a figure for which we are willing to settle our 
issues for $49M. This includes a one time payment to cover the loss of 
revenue caused by the production of electricity in the future. Frankly, 
Mr. Chairman, we have come to the end of our patience. If the Tribes 
are not able to settle for a reasonable figure for these claims, we 
have to consider proceeding with our Court actions, including those for 
restitution of control over the 7,500 acres of land.
    If a statutory settlement can be reached, millions of dollars in 
attorney and litigation expense on the part of the government, the 
Tribe, and the current constituent possessors of the property can be 
saved. Finally, let me add for the benefit of my representatives, it is 
a fact that any settlement figure paid to the Tribes will stay in 
Oklahoma. It will provide the Tribes with sorely needed capital for 
economic development, and such tribal services as health care and 
education. It will benefit the entire State.
    Mr. Chairman, I want to thank you for asking me to testify on this 
measure so crucial to my tribe, and I want to ask you to fully support 
H.R. 3534.
                                 ______
                                 
    Mr. Hayworth. And we thank you very much, Chief Pyle. And 
now we hear from Chief Smith.

   STATEMENT OF CHAD SMITH, PRINCIPAL CHIEF, CHEROKEE NATION

    Mr. Smith. Let me begin by thanking you, Chairman, and 
other members of the Committee for this opportunity to testify 
today in support of this bill, H.R. 3534. I would also like to 
thank the members of the Oklahoma congressional delegation who 
sponsored the bill, Representatives Brad Carson, Wes Watkins, 
Steve Largent, as well as Representative Kildee of the 
Committee, who has always been a friend of the Cherokees and 
other Indian tribes in the United States.
    My name is Chad Smith, and I am the Principal Chief of the 
Cherokee Nation, the second largest tribe in the United States. 
The Cherokee Nation is located in northeastern Oklahoma, and we 
share a common boundary along the Arkansas River from basically 
Muskogee down to Fort Smith. The river is not only our common 
boundary, but it is also a wonderful and valuable resource that 
the three nations share.
    I just want to point out to you, for reference, what we are 
talking about. This is a map. If you would look, Muskogee, 
Oklahoma is here. Tulsa is probably up here. And Fort Smith is 
here. We own this riverbed from Muskogee down to Fort Smith.
    The river has moved, through natural and manmade causes, in 
the last 100 years, and really what we are talking about is 
damages to the whole river, but also lands that are now dry 
lands which are located in the lower portions of the river, and 
you can hardly see, but these are 7,700 acres that is indicated 
in brown here. It is those lands that are in dispute. We 
believe we own them. There are folks who have farmed those. As 
part of this bill, we would give up our claim to that title and 
let it be vested in those occupants.
    What I wanted to share with you in these few moments is 
really the dignity of the title of the Cherokee Nation and the 
other two tribes. In 1830 the Indian Removal Act was passed, 
which was unique because Congress allowed the President to 
exchange lands in the southeast for our five tribes with those 
in the Indian Territory. And what was so unique about it, it 
was an exchange of land from government to government. In fact, 
in the following treaty with the Cherokees in 1885, the Treaty 
of New Echota, which led to the infamous Trail of Tears, the 
Cherokee Nation ceded its interest in the southeast and the 
United States ceded its interest to the Cherokee Nation in 
Indian Territory.
    At statehood, when the lands were allotted, it was a 
mistake that the State acquired these lands, but in 1970 the 
U.S. Supreme Court quieted title to this riverbed to our three 
tribes. Since 1966 we have been litigating this matter. Let me 
share with you why we believe compensation is in order.
    Because of the adherence to this erroneous legal opinion 
referred to by the Department of Interior, BIA did nothing 
between statehood and 1970 to protect these riverbed interests. 
In the process, after World War II there was a mammoth economic 
project, the McClellan-Kerr navigation system, in which the 
U.S. Government dredged the river, changed the river, and did 
not compensate the tribes for the use of that riverbed or the 
damage to it. In fact, two power heads now exist, producing 
power for the last 50 years.
    If it was known then that the title vested in our three 
tribes, I believe the government would have compensated us for 
it. In fact, in the last decade Congress enacted a second 
settlement for damages to the Standing Rock Sioux and three 
affiliated tribes arising from the construction of the Garrison 
and Oahe Dams. Also, in 1994 the United States negotiated a 
legislative settlement with the Colville Tribe for the use of 
its land for power and reservoir sites, boasting to be the 
largest claims settlement ever negotiated, $53 million plus an 
annual payment of $15 million in perpetuity.
    This is a bill that is good for Oklahoma. There is 300 
landowners and we anticipate there are 7,000 interests in the 
7,500 acres that would have to be litigated. The Department of 
Justice anticipates it would take 20 years and at least $10 
million to litigate. So what we propose in this bill is to 
resolve that. We give up title to those lands. We receive 
damages for the construction of the navigation way and other 
damages to that riverbed, and it is something that is good for 
not only our three tribes but for the State of Oklahoma and all 
of our constituents.
    Thank you, sir.
    [The prepared statement of Mr. Smith follows:]

   Statement of The Honorable Chad Smith, Principal Chief, Cherokee 
                          Nation, on H.R. 3534

    Mr. Chairman and members of the Committee:
    Let me begin by thanking you, Chairman Hansen and the other members 
of the Committee, for the opportunity to testify today in support of 
this bill, H.R. 3534. I would also like to thank the members of the 
Oklahoma congressional delegation who sponsored the bill, 
Representatives Brad Carson, Wes Watkins and Steve Largent, as well as 
Representative Dale Kildee of the Committee, who has always been a 
friend of the Cherokees and other Indian tribes in the United States.
    My name is Chad Smith, and I am the Principal Chief of the Cherokee 
Nation, the second largest Federally-recognized Indian tribe in the 
United States. Cherokee Nation is located in northeastern Oklahoma, and 
we share a common boundary along the Arkansas River, from the point of 
confluence of the Canadian River to the Arkansas state line, with two 
other great Indian nations, the Choctaw and Chickasaw Nations. The 
River is not only our common boundary, but it is also a wonderful and 
valuable resource that the three Nations share.
    As the members of this Committee no doubt know, the Cherokee, 
Choctaw and Chickasaw Nations have not always been in Oklahoma, and I 
am sure that you know that how we came to be in Oklahoma is by no means 
a happy story. Although culturally and linguistically the Cherokee 
people are very different from the Choctaw and Chickasaw people, the 
members of our three Nations, along with our neighbors the Creeks and 
Seminoles, were all forcibly uprooted from our aboriginal homelands in 
what is now the southeast United States about 140 years ago and marched 
over the Trail of Tears to lands west of the Mississippi in the Indian 
Territory. The story of how that came to be, how the Government of the 
United States swept us up from our homelands east of the Mississippi 
River and deposited us in a completely unfamiliar country is the sad 
part of our histories that the three Nations share along with our 
brothers the Creeks and Seminoles. It is also the story of how we came 
to own the bed and banks of the Arkansas River within the State of 
Oklahoma.
    It should come as no surprise that the events of Indian removal 
were an integral part of the legal history of tribal ownership of the 
bed and banks of the Arkansas River in Oklahoma, because the Indian 
removal was accomplished only in part through force; it was facilitated 
by treaties of territorial cession--cessions by the Indian Nations and 
cessions by the United States. I will attempt to give the Committee an 
overview of that legal history and then explain why this is a good 
bill, one that Congress should pass into law.
    The Cherokee Nation executed treaties both with Britain and, after 
Independence, with the United States. Our first treaty with the U.S. 
was the Treaty of Hopewell, on November 28, 1785, which purported to 
set out the boundaries of the Cherokee Nation. A mere 36 days later, 
also at Hopewell, the Choctaw Nation executed its own treaty with the 
United States, one similar to that of the Cherokees. In these treaties 
and a few others that soon followed, the Cherokees and Choctaws were 
placed under the protection of the United States; their rights to the 
exclusive use and occupancy of lands not cede were ``solemnly'' assured 
by the United States 1 and assured of our right to pursue 
our own ways and govern ourselves under our own system of laws.
---------------------------------------------------------------------------
    \1\ See Treaty of Holston, July 2, 1791, 7 Stat. 39, 40.
---------------------------------------------------------------------------
    Despite solemn guarantees of protection by the United States 
expressed in treaty, waves land-hungry non-Indian settlers began 
invading the Cherokee Nation, occupying and ``improving'' lands owned 
by the Nation and used communally by its citizens for centuries. Less 
than 20 years after the signing of the Hopewell treaties, the United 
States Government first conceived of a new Indian policy'the first of a 
long series of Federal policies that would have devastating effects on 
Indian people everywhere'that would eventually come to be known as 
``Indian removal,'' whereby it was determined that the best way to 
protect Indians from the consequences of the invasions of white 
settlers would be to move them en masse to the remote country west of 
the Mississippi River that had just been acquired in the Louisiana 
Purchase. 2
---------------------------------------------------------------------------
    \2\ See the Act of March 26, 1804, 2 Stat. 289.
---------------------------------------------------------------------------
    In 1817 and 1820, respectively, the Cherokee Nation and the Choctaw 
Nation executed treaties with the United States agreeing to cede 
portions of their lands east of the Mississippi River in exchange for 
large tracts of land in the Arkansas Territory. Although some 
Cherokees, who came to be known as ``Old Settlers,'' did move soon 
thereafter to the Arkansas Territory, before the Government could 
follow through with removal it discovered that it had miscalculated the 
rate of westward expansion, for the lands in Arkansas the U.S. had 
promised to the Indian Nations had already been occupied by non-Indian 
settlers. The two Nations were then forced to relinquish their lands in 
the Arkansas Territory and to accept instead lands farther west in the 
``Indian Territory.'' This time, the United States assured them, their 
lands would, ``under the most solemn guarantee of the United States, 
be, and remain, theirs forever.'' 3
---------------------------------------------------------------------------
    \3\ See treaties of January 20, 1825, 7 Stat. 234, and May 6, 1828, 
7 Stat. 311.
---------------------------------------------------------------------------
    The failure of the Arkansas removal program did little to inspire 
confidence among Cherokees and Choctaws that the Federal Government had 
the political will to protect them from non-Indian settlement in the 
promised lands of the Indian Territory. Those who had not already moved 
to the Arkansas Territory became more determined than ever to remain in 
their aboriginal homelands in the east. At the same time, however, 
pressure was building in the states of Georgia and Mississippi for 
Congress to rid them of their Indians, and laws were passed in the 
state legislatures purporting to extend state jurisdiction into the 
Indian Country. Then, in 1830, Congress passed the Indian Removal Act. 
4
---------------------------------------------------------------------------
    \4\ 4 Stat. 411.
---------------------------------------------------------------------------
    Although the Cherokees successfully challenged the validity of the 
state laws asserting jurisdiction over Cherokee territory in now famous 
court cases that are part of foundation of modern Federal Indian law, 
5 the Indian Nations received no support whatsoever from the 
Andrew Jackson administration as political pressure for Indian removal 
continued to grow.
---------------------------------------------------------------------------
    \5\ Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831); 
Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832).
---------------------------------------------------------------------------
    Eventually the Indian Nations decided that removal was inevitable, 
that they should make the best deal they could with the United States 
while there was still time to do so. The Choctaw Nation signed the 
Treaty of Dancing Rabbit Creek 6, another removal treaty, on 
September 27, 1830; in it they agreed to move to new lands west of the 
Arkansas Territory. Similarly, on December 29, 1835, the Cherokees 
ended their resistance to removal by executing the Treaty of New Echota 
7, and those Cherokees who had not moved earlier to the 
Arkansas Territory ``agreed'' to move to lands in the Indian Territory 
ceded to them by the United States. 8 Later, by treaty with 
the United States, the Chickasaw Nation was granted a 1/4 interest in 
the lands of the Choctaws west of the Mississippi in the Indian 
Territory. 9
---------------------------------------------------------------------------
    \6\ 7 Stat. 333.
    \7\ 7 Stat. 478.
    \8\ A small number managed to avoid removal and remain near their 
homelands. Their descendants are members of the Eastern Band of 
Cherokee Indians.
    \9\ See treaty of January 17, 1837, 11 Stat. 573, and treaty of 
June 22, 1855, 11 Stat. 611.
---------------------------------------------------------------------------
    In their removal treaties, the Indian Nations were to be given 
their lands in the Indian Territory by way of patents executed by the 
President of the United States granting title to the property in fee 
simple. The Indians were assured that they would be free to govern 
themselves and never again be moved, and that their domains would never 
be embraced within the limits of any state or territory. 10
---------------------------------------------------------------------------
    \10\ See Article 5 of the Treaty of New Echota, 7 Stat. 478, 481.
---------------------------------------------------------------------------
    The years following the Trail of Tears were a time of great turmoil 
in the Cherokee Nation, when internecine fighting among Cherokee 
factions erupted over the actions of the so-called ``Treaty Party,'' 
who were alleged to have acted illegally in ceding tribal land in the 
removal process. Some members of the Treaty Party, including Elias 
Boudinot, were executed for what they did. This turmoil, though it 
happened long ago, reflects the strength of attachment of Cherokee 
people to their tribal lands and explains their strong bias against 
relinquishing title to those lands except when absolutely necessary.
    Although peace was eventually restored in the Cherokee Nation in 
the mid-1840s, in part through the efforts of the Government, 
11 it was not a long-lasting peace. The Civil War brought 
political and economic destruction and chaos to the Indian Territory. 
The membership of the Cherokee Nation, not unlike that of the other 
four Nations, was divided between the Union and the Confederacy, but 
for their unfortunate choices in taking sides in the War the Indian 
Nations were rewarded with yet another generous round of punitive 
treaties. 12 Despite the many onerous provisions in these 
treaties, however, they did expressly reaffirm all not inconsistent 
obligations of prior treaties. 13
---------------------------------------------------------------------------
    \11\ See treaty of August 6, 1846, 9 Stat. 871, declaring amnesty 
for crimes committed within Cherokee Nation during the factional 
struggles and making special monetary provisions for the Old Settlers. 
Article 1 of this treaty also affirms that the Cherokee Nation's new 
lands in the Indian Territory ``shall be secured to the whole Cherokee 
people for their common use and benefit.''
    \12\ See treaties of March 21, 1866, 14 Stat. 755 (Seminole 
Nation), April 28, 1866, 14 Stat. 769 (Choctaw and Chickasaw Nations), 
June 14, 1866, 14 Stat. 785 (Creek Nation), and July 19,1866, 14 Stat. 
799 (Cherokee Nation).
    \13\ See article 31 of the Cherokee's 1866 treaty, 14 Stat.799, 
806.
---------------------------------------------------------------------------
    Other provisions in the 1866 treaties with the five Nations 
contemplated the creation of an Indian state from the Indian Territory, 
to be governed by an inter-tribal council consisting of representatives 
of the Indian Nations 14. This idea would never become a 
reality: once again, political pressure began building to do away with 
the tribal governments in the Indian Territory. Congress eventually 
succumbed to this pressure and, in 1893, created the Commission to the 
Five Civilized Tribes. 15 The purpose of the Commission was 
to negotiate allotment agreements with the five Nations and thereby 
pave the way to the dissolution of the tribal governments. It is 
important to note here that the reason allotment agreements were 
necessary was that the United States did not hold title to the lands of 
the Cherokee, Choctaw, Chickasaw, Creek and Seminole Nations'their 
tribal lands had been ceded to them by patents of the United States'so 
that the U.S. was not in a position to convey title to allotted lands. 
This legal fact would eventually play an important role in how the 
Cherokees, Choctaws and Chickasaws came to own the bed of the Arkansas 
River.
---------------------------------------------------------------------------
    \14\ See article 12 of the Cherokee's 1866 treaty, 14 Stat. 799, 
802.
    \15\ See the Act of March of March 3, 1893, 27 Stat. 645.
---------------------------------------------------------------------------
    The Indian Nations resisted allotment as long as possible. They 
continuously rebuffed the Commission in its efforts to negotiate 
allotment. Then Congress passed the Curtis Act of 1898 16, 
legislation that in effect put an ultimatum to the Indian Nations--
allot your lands by agreement or they will be allotted by force of law. 
Within four years passage of the Curtis Act, all five Indian Nations 
had executed allotment agreements, and their tribal lands were soon 
allotted in severalty.
---------------------------------------------------------------------------
    \16\ Act of June 28, 1898, 30 Stat. 495.
---------------------------------------------------------------------------
    In 1906, Congress passed a law 17 that was intended to 
begin the process of winding up the affairs and existence of the five 
Nations. Although the 1906 Act clearly contemplated the eventual 
dissolution of the governments of the five Indian Nations, neither it 
nor any other act of Congress ever accomplished that end 18. 
Section 27 of the 1906 Act did, however, expressly provide that any 
tribal lands remaining after allotment would be held thereafter in 
trust for the Indians another important legal fact in the history of 
our Nations' ownership of the bed of the Arkansas River.
---------------------------------------------------------------------------
    \17\ Act of April 26, 1906, 34 Stat. 148.
    \18\ For an excellent legal analysis of how the governments of the 
five Nations continued to survive after and despite the 1906 Act, see 
Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff'd. sub nom., 
Harjo v. Andrus, 581 F.2d 949 (D.C. App. 1978).
---------------------------------------------------------------------------
    At the time of allotment through statehood in 1907, the Department 
of Interior assumed that the United States owned the bed and banks (to 
the highwater mark) of the Arkansas River, with the consequence that 
the bed of the River was never allotted. Until 1970, in fact the 
Department and the Federal Government persisted in the belief and an 
erroneous legal opinion that title to the riverbed went to the State of 
Oklahoma upon statehood under the ``Equal Footing Doctrine,'' whereby 
title to the beds of a navigable stream is passed to the state whose 
borders encompass it upon admission of that state into the Union 
19.
---------------------------------------------------------------------------
    \19\ See memorandum of Duard R. Barnes, Acting Associate Solicitor, 
Division of Indian Affairs, Department of Interior, to Legislative 
Counsel dated August 12, 1976.
---------------------------------------------------------------------------
    The Cherokee, Choctaw and Chickasaw Nations disagreed with the 
Government's position. Instead, these Nations contended that when the 
United States ceded lands to them pursuant to their respective removal 
treaties and the Federal land patents executed by the President, the 
United States granted all of its interest in the bed and banks of the 
Arkansas River, along with the other lands described in those treaties 
and patents, to the three Indian Nations, so that at the time of 
Oklahoma statehood the U.S. was possessed of no title to transfer to 
Oklahoma under the Equal Footing Doctrine. The Indian Nations followed 
this with an argument that by operation of section 27 of the 1906 Act, 
these unallotted riverbed lands went to the United States in trust for 
the Indian Nations.
    In 1966, the Cherokee Nation took these very arguments to the 
United States District Court for the Eastern District of Oklahoma in a 
lawsuit naming the state of Oklahoma and various oil and gas companies 
with riverbed leases from the state. Subsequently, the Choctaw and 
Chickasaw Nations intervened in the action. The Indian Nations lost at 
the trial court and again on appeal to the Tenth Circuit 20. 
The Supreme Court accepted review of the case on certiorari and 
reversed 21. The Court reviewed the three Nations' various 
treaties with the United States, the land patents executed by the 
President, and the historical and legal context in which those treaties 
and patents were made, and held that (1) when the United States ceded 
lands to the three Indian Nations in the Indian Territory, it intended 
to cede the bed and banks of even the navigable segment of the Arkansas 
River, from Three Forks near present day Muskogee down to the Arkansas 
territorial line, and (2), by operation of the 1906 Act, the bed and 
banks of the River went to the United States in trust for the Indian 
Nations.
---------------------------------------------------------------------------
    \20\ 402 F.2d 739 (10th Cir. 1968).
    \21\ Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970).
---------------------------------------------------------------------------
    Because of its adherence to the erroneous legal opinion referred to 
above, the Department of Interior did nothing between the time of 
statehood and 1970 to protect the three Indian Nations' interests in 
riverbed resources. When Congress authorized the construction of the 
McClellan-Kerr Navigation System along the Arkansas River after the 
Second World War, no provision was made for compensating the three 
Nations for the use of their resources in constructing the dams, 
revetments and levies within the system. Nor did the Department take 
steps to prevent depletion of the Nations' oil and gas reserves under 
the river, or to prevent landowners from occupying thousands of acres 
of the riverbed that became dry or ``fast'' as the result of natural or 
man-made changes in the course of the River. Today, in the lower 
reaches of the Arkansas River near the Oklahoma-Arkansas state line, 
there are approximately 7,750 ``dry'' acres of riverbed lands that 
belong to the Nations but are occupied and used by adjacent landowners 
without consent of, or compensation to, the three Nations.
    In 1989, the three Nations filed suit against the United States in 
the United States Court of Federal Claims, 22 after 
receiving special permission from the Congress to do so, seeking 
compensation from the Government for the taking of tribal resources 
along the riverbed and for it breach of trust to protect the Nations' 
beneficial interests in the riverbed. Those lawsuits are still pending 
today. In 1997, the United States brought a quiet title action against 
many dozens of landowners occupying tribal lands along a small segment 
of the River 23'representing only a small percentage of the 
total number of persons who might be occupying or claiming an interest 
in the Nations' riverbed lands but the lawsuit was dismissed without 
prejudice on technical grounds. Thus, the task of removing persons 
occupying tribal lands along the Arkansas has not even begun.
---------------------------------------------------------------------------
    \22\ Case Nos. 218-89L and 630-89L.
    \23\ United States of America v. Pates Farms, Inc., et al., Case 
No. Civ.97-685-B, United States District Court for the Eastern District 
of Oklahoma.
---------------------------------------------------------------------------
    Mr. Chairman and members of the Committee, this legislation is the 
culmination of many years of work by a succession of tribal 
administrations to resolve the complex controversies surrounding the 
Nations' ownership of the bed and banks of the Arkansas River in 
Oklahoma. Our earliest efforts to reach a settlement for lost riverbed 
resources began in the late 1970s. My predecessors in office, Principal 
Chiefs Ross Swimmer and Wilma Mankiller, worked diligently with the 
tribal leaders of Choctaw and Chickasaw Nations to bring closure to 
these controversies, not only through litigation but also through 
negotiation with Interior and Justice, but always, for one reason or 
another, settlement has proven to be an elusive thing.
    The current bill, H.R. 3534, would settle the three Nations' damage 
claims against the United States now pending in the Court or Federal 
Claims, and it would give them, in a single lump sum, the past and 
future fair rental value of the lands being used for the two powerheads 
that were constructed on tribal lands on the bed of the Arkansas. The 
bill would also compensate the Nations for the lands being occupied by 
adjacent landowners and other potential claimants in the lower segments 
of the River. In exchange for the appropriated sums, the three Nations 
would dismiss their lawsuits against the Government and disclaim any 
right, title or interest in the 7,750 of lands being occupied by non-
tribal interests. Those disclaimers will serve to eliminate the cloud 
of tribal claims in the title to lands being occupied by these people 
and relieve the Government of the very expensive burden of having to 
bring ejectment litigation against a very large number of Oklahoma 
citizens.
    Mr. Chairman and members of the Committee, this is a good bill and 
I urge that you give it your unqualified support. I also thank you for 
taking the time in the Committee's busy schedule to set this matter for 
hearing and for providing me the opportunity to testify on behalf of a 
bill that will be of great benefit not only to the people who are my 
constituents, the Cherokee people, but to many non-Indian citizens of 
Oklahoma as well.
                                 ______
                                 
    Mr. Hayworth. And we thank you very much, Chief, and the 
Chair would note that we are joined by two Oklahomans here on 
the dais. Our friend Mr. Carson is the principal sponsor. We 
will hear from him first, and then recognize our good friend 
and special guest. Wes Watkins. Mr. Carson?

STATEMENT OF THE HON. BRAD CARSON, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF OKLAHOMA

    Mr. Carson. Thank you, Mr. Hayworth, and I would like to 
thank Chairman Hansen and Ranking Member Rahall for scheduling 
this hearing today, and thank you, Governor Anoatubby, Chief 
Smith, and Chief Pyle, for your patience in sitting through the 
other hearings as well. You know this is a laborious, sometimes 
tedious process. I know you have been through it before, and we 
are grateful to have you here today.
    All three of you have ably outlined the history of this 
particular dispute, but let me just for the record say a bit 
more about that and why a settlement of this issue is so needed 
today. Disputes involving the Cherokee, Choctaw, and Chickasaw 
lands along the riverbed, as has been pointed out, have been 
ongoing since 1907, the year of statehood in Oklahoma, and in 
order to achieve justice and compensate these three tribes for 
the land and resources that have been wrongfully taken from 
them, misused and left dormant, a settlement today must occur. 
Everyone agrees on that, both the administration as well as 
tribal leaders and most of us here in Congress.
    As Chief Smith was also outlining, and also abetted by 
Chief Pyle's testimony and Governor Anoatubby's testimony, the 
tribes of course were relocated to Oklahoma in the 1830's.
    They were to occupy land ceded to them in the new Indian 
Territory on which the Arkansas River now runs.
    But in 1970, as Chief Smith pointed out, an erroneous legal 
opinion by the U.S. Government, because of that the Arkansas 
River bed was conveyed to the new State of Oklahoma. All 
navigable rivers of the United States were deemed property of 
the State under the Equal Footing Doctrine.
    However, the treaties of the three tribes came long before 
the Equal Footing Doctrine, and in 1970 in the landmark Supreme 
Court case of Choctaw Nation v. Oklahoma, the U.S. Supreme 
Court ruled in favor of the tribes and determined that the 
tribes indeed were the rightful owners of the riverbed, and not 
the State of Oklahoma.
    Despite the tribes' ownership of those lands, between 1907 
and 1970 the BIA acted on the assumption that Oklahoma owned 
the riverbed, and therefore took no action to protect tribal 
resources such as oil and gas production, sand and gravel, 
grazing, and croplands.
    Since the Supreme Court decision of now 32 years ago, there 
has been little disagreement that a settlement should be 
reached. However, there have existed substantial differences in 
thought regarding the settlement amount that should be awarded 
to the tribes.
    In 1974 Congress appropriated $1.2 million to the BIA to 
conduct an appraisal of the entire riverbed, and to survey the 
riverbed from the Arkansas line to the Three Forks area north 
of Muskogee, Oklahoma. The value of the riverbed and related 
assets were determined to be $177 million. Senator Henry 
Bellman, the Senator from Oklahoma at that time, introduced 
legislation to authorize the United States to pay the tribes 
for the value of the riverbed. However, this legislation was 
not passed, and now, 30 years later, the tribes still await 
settlement of this issue.
    Enactment of this legislation will bring about clear and 
tangible benefits. First, it will eliminate the need for the 
Department of Justice to bring hundreds of defendants into 
court due to their occupancy of parts of the nearly 8,000 acres 
of dry bed lands that the chiefs and Governor Anoatubby were 
talking about. Second, the settlement will pay the three tribes 
for the actual present value of the loss of past and future 
assets they would have had if not for the construction of the 
McClellan-Kerr navigation system.
    Third, positive movement of the legislation will result in 
the dismissal of the mismanagement case against the BIA. And, 
finally, the settlement will provide the tribes with resources 
that will in turn be used to further economic development in 
the region, benefitting Indian and non-Indian members of the 
communities alike.
    I hope that everyone on this Committee can support the 
legislation. I would like to thank Chairman Hansen and Ranking 
Member Rahall and you, Mr. Hayworth, for your past support. And 
if I could ask the panelists here to discuss something that Mr. 
Smith from the BIA testified to, you hear earlier this morning, 
let me talk to you about the ongoing status of the settlement 
negotiations. Can you tell us how those are coming along, what 
the hurdles are going to be, and the potential resolution of 
the sand and gravel matter that he was saying still remains a 
roadblock?

 Statement of The Honorable Brad Carson, a Representative in Congress 
                from the State of Oklahoma, on H.R. 3534

    Chairman Hansen and Ranking Member Rahall, I would first like to 
express my sincere appreciation to you both for scheduling this hearing 
on H.R. 3534, the Cherokee, Choctaw, and Chickasaw Nations Claims 
Settlement Act, and for inviting the leaders of the three Indian 
nations here today to testify. They certainly understand this issue 
better than anyone and can speak most eloquently about the need for 
this legislation. I would also like to take this opportunity to thank 
Congressman Wes Watkins, Steve Largent, and Dale Kildee for their 
strong support and co-sponsorship of this legislation.
    Disputes involving the Cherokee, Choctaw and Chickasaw lands along 
the Arkansas River have been ongoing since 1907. In order to achieve 
justice and compensate these three tribes for the lands and resources 
that have been wrongfully taken from them, misused, and left dormant, a 
settlement must occur.
    In order to understand the need for this legislation, I believe you 
must first turn to the history of these tribal lands. As you well know, 
in the 1830s, the Cherokee, Choctaw, Chickasaw, Creek and Seminole 
Nations were forcibly removed to the Indian Territory of Oklahoma to 
occupy lands ceded to them by the United States, through which the 
Arkansas River runs. In 1907, due to an erroneous legal opinion, the 
Arkansas riverbed was conveyed to the new State of Oklahoma. All 
navigable rivers of the United States were deemed property of the State 
under the Equal Footing Doctrine. However, the treaties of the three 
tribes came long before the Equal Footing Doctrine. And, in 1970, in 
Choctaw Nation vs. Oklahoma, the U.S. Supreme Court ruled in favor of 
the tribes and determined that the tribes, indeed, were the rightful 
owners of the riverbed and not the state of Oklahoma.
    Nevertheless, from 1907 through 1970, the Bureau of Indian Affairs 
acted on the assumption that Oklahoma owned the riverbed and, 
therefore, took no action to protect tribal resources such as oil and 
gas production, sand and gravel, grazing and croplands. The Government 
itself constructed hydroelectric powerheads and other improvements in 
the channel of the river on tribal lands, using sand and gravel 
belonging to the three Indian Nations. Due to the Bureau's inaction, 
individuals with property near the Arkansas River also began to occupy 
the three Indian Nations' ``dry-bed'' lands--amounting to approximately 
7,750 acres of land that was under water at the time of statehood but 
that is now dry due to changes in the course of the river.
    Since the Supreme Court decision of 1970, there has been little 
disagreement that a settlement should be reached. However, there have 
existed substantial differences in thought regarding the settlement 
amount that should be awarded the tribes. In 1974, Congress 
appropriated $1.2 million to the BIA to conduct an appraisal of the 
entire riverbed and to survey the riverbed from the Arkansas line to 
the three forks area north of Muskogee. The value of the riverbed and 
related assets was determined to be $177 million. Senator Henry 
Bellmon, at that time, introduced legislation to authorize the United 
States to pay the tribes for the value of the riverbed. However, this 
legislation was not passed, and, almost thirty years later, the tribes 
are still awaiting settlement of this issue.
    Recent discussions between Federal, state and tribal entities 
involved in this dispute have been extremely productive making the 
107th Congress a most appropriate time for settlement.
    Enactment of this legislation, H.R. 3534, will bring about clear, 
tangible benefits. First, it will eliminate the need for the Department 
of Justice to bring hundreds of defendants into court due to their 
occupancy of parts of the 7,750 acres of drybed lands. Second, the 
settlement will pay the three tribes for the actual present value of 
the loss of past and future assets they would have had if not for the 
construction of the McClelland-Kerr navigation system. Third, positive 
movement of the legislation will result in the dismissal of the 
mismanagement case against the Bureau of Indian Affairs. And, finally, 
the settlement will provide the tribes with resources that will, in 
turn, be used to further economic development in the region, 
benefitting Indian and non-Indian members of these communities alike.
    I ask my colleagues on the Committee to support this important 
legislation. Thank you Mr. Chairman.
                                 ______
                                 
    Mr. Smith. We have looked at different assets under 
actually the disputed lands. The value of the land has been 
agreed to. The value of the oil and gas has been agreed to. The 
value of methane gas has been agreed to. The last thing that we 
haven't come to an agreement on, and we are making great 
progress, is the value of sand and gravel.
    I can tell the Committee that in 1989 we came--our strategy 
then was to piecemeal the damages out, and in 1989 we had an 
agreement with the Bureau of Indian Affairs for the Cherokee 
portion, which we don't have, to agree for compensation of $8.5 
million for our portion of the sand and gravel. I believe that 
gives us a benchmark. I think we can get to a settlement in the 
near future, especially with the encouragement of Congress and 
this Committee.
    Mr. Carson. You also in your testimony referenced the fact 
that there are numerous lawsuits involving title to some of the 
dry bed lands. Is there any estimate from the tribes about the 
expense and duration of litigation if settlement is not reached 
through Congress or working with the administration?
    Mr. Smith. In 1989 the Department of Justice anticipated it 
would be the year 2009 before they could bring all the quiet 
title suits. In the first filing, which was dismissed based on 
technicalities, there were over 100 named defendants in one 
particular tract. We anticipate 300 to 400 named defendants and 
probably as many as 7,000 interests, individual interests in 
these lands, including mortgage companies, insurance companies, 
oil and gas companies, the farmers themselves. We have had 
widespread support all up and down the Arkansas River by these 
other parties wanting to settle this issue.
    Mr. Carson. I see my time has expired. Mr. Chairman, I 
would ask for leave to enter my full statement into the record.
    Mr. Hayworth. I am certainly happy to allow that to take 
place, Mr. Carson. The Chair would only take exception to your 
comment that somehow this hearing was tedious today, but that 
is OK.
    Perhaps you will find support from our other special guest, 
Mr. Watkins of Oklahoma. Welcome, and you are recognized.

STATEMENT OF THE HON. WES WATKINS, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF OKLAHOMA

    Mr. Watkins. Thank you, Mr. Chairman, and I appreciate Mr. 
Rahall's being here. And Dale, it is always good having you 
here. I know you have always been quite popular in the Durant 
area, Chief Pyle.
    This is I think a landmark piece of legislation, no pun 
intended by ``landmark'' because it is riverbed legislation, 
but it has been a long time. Speaking of tedious, it has been a 
lot longer. It is not very long sitting out here, right, 
because over these many years there has been a long delay.
    And let me say this to the Committee. This has been of 
interest to me along with a lot of other activities because I 
think, as a cosponsor, let me say this is also a bipartisan 
piece of legislation, my colleague from Oklahoma being a 
Democrat and part of the minority side in the Congress at this 
time. I have joined him. We have joined together, my being a 
Republican on the majority side, in helping to show the kind of 
support that we want and hopefully can gain from this Committee 
in moving forward.
    I would like to say to Mr. Chairman, when I left the Ways 
and Means Committee and he sits, Chairman Hayworth sits right 
next to me on Ways and Means Committee and we discuss a lot of 
Native American activities and legislation, they were still 
going strong when I left there. I don't know if they are still 
are. I am going to go back.
    But H.R. 3534 is, like I say, a long time in coming, and it 
will settle I think a situation that needs to have been done a 
long time ago. You have heard the history of it, but Mr. 
Chairman, really the BIA recognized or reported, they reported 
for about 60 years that this belonged to Oklahoma, the State of 
Oklahoma. But a lawsuit in 1970, the U.S. Supreme Court stated 
this river bed and all belonged to the Choctaws and the 
Chickasaws and the Cherokees. That was brought about from a 
lawsuit in 1966, if I recall correctly.
    And so it has been over 30 years since the Supreme Court 
has ruled, and they have made a lot of effort, spent a lot of 
time over these years. In 1989 there was further activity, a 
filing of lawsuits, and hopefully this legislation will prevent 
an expansion of this. I think Chief Smith hit on the head. When 
you look at it from a practical standpoint and a reasonable 
standpoint, working out a settlement is much better than could 
involve as many as up to 7,000 interests that are involved in 
the potential of the lawsuits, including hundreds of landowners 
along that river.
    So I don't think it is--I think all of us who watched these 
settlements over the years realize that that would be a whole 
lot more. This is 7,500 acres of land. It looks like to me we 
all know the hydro power situation there, the water value that 
continues to flow there, and that is going to continue 
throughout our lifetime and throughout many hundreds of years. 
And this is basically, without question, settled, the ownership 
of that has been settled. We just got to get now settling the 
value and settling the compensation for this.
    So I appreciate you, Mr. Chairman, and I appreciate my 
colleague from Oklahoma, Mr. Carson, and his leadership on this 
Committee and all of your interests in this legislation, and I 
ask that for a positive vote, Neil, if I could, later on when 
markup takes place and we move this legislation forward, and I 
can assure you will be trying to do what I can from the 
majority side to move this legislation.
    Thank you, Mr. Chairman.

 Statement of The Honorable Wes Watkins, a Representative in Congress 
                from the State of Oklahoma, on H.R. 3534

    Mr. Chairman, Mr. Rahall, and Members of the Committee, I thank you 
for conducting this hearing today and join as a co-sponsor on the 
Legislation offered by Mr. Carson of Oklahoma. Today you will hear 
about a bill that would have a significant impact on the members of the 
Cherokee, Choctaw, and Chickasaw Indian tribes of Oklahoma. The 
Cherokee, Choctaw and Chickasaw Nations Claims Settlement Act is a 
piece of legislation I fully support, and hope will be passed by the 
House of Representatives this year. H.R. 3534 would bring closure to 
both current and forthcoming lawsuits between the United States, and 
the Chickasaw, Choctaw, Cherokee tribes, and hundreds of individuals in 
Oklahoma.
    The Bureau of Indian Affairs for more than 60 years, reported that 
the State of Oklahoma owned the Arkansas Riverbed. However, in 1970 the 
Supreme Court of the United States ruled in Choctaw Nation v. Oklahoma 
that the tribes mentioned above owned the Arkansas Riverbed. After many 
attempts to settle with the Government in1989, the Cherokee, Chickasaw, 
and Choctaw Nations filed lawsuits against the United States seeking 
damages for the use and mismanagement of these tribal trust resources. 
These lawsuits are still pending in Federal court, and without this 
legislation future lawsuits will be filed.
    The Arkansas Riverbed encompasses over 7,500 acres of the Indian 
Nations' Drybed Lands have been occupied by a large number of adjacent 
landowners in Oklahoma. Without a settlement, further litigation 
against thousands of landowners would be likely. The potential of these 
lawsuits and the time and increased expense to not only the government 
and tribes, but also to private citizens is in my opinion a valid and 
strong reason to settle the Arkansas Riverbed. It is in the best 
interest of not only the tribes, but also the United States to pass 
this legislation.
    This legislation would bring a quick settlement to a claim the 
tribes have had against the United States for over 30 years. It would 
end pending lawsuits between the tribes and the United States. Most of 
all settling with the tribes would avoid thousands of future lawsuits 
brought by the United States against individuals who currently own the 
Drybed lands.
                                 ______
                                 
    Mr. Hayworth. Thank you very much.
    The Gentleman from Michigan, any questions?
    Mr. Kildee. Thank you, Mr. Chairman. I am very happy to be 
one of the cosponsors of this bill, glad to see my three 
friends here. I would try to speak, if I could, in Choctaw and 
Chickasaw, but I have a Potawatomi accent in that, but I will 
say in Cherokee, ``O-see-o,'' and I am glad that you are here, 
Chairman Smith, and also ``Owado,'' thank you very much for 
being here. Kim Chee behind me, she teaches me my Cherokee, so 
I probably have a Flint, Michigan accent in that, also.
    But I think you have been very, very patient in this 
action, more than patient, and you are certainly being more 
than reasonable in the figure, and I think that we should act 
very expeditiously on this to make sure that you are given some 
compensation so you can take care of the needs of your tribe. 
Justice is extremely important, and I think justice delayed is 
justice denied. It has been delayed for a long, long time. That 
is why I would hope that we would very, very good have a 
markup.
    And it is very good when we--I think Indian issues have 
risen above partisanship. When J.D. Hayworth and I established 
the Native American Caucus, we decided at that point to make it 
a bipartisan caucus because these things are of a bipartisan 
nature, and J.D. and I have worked very closely together. Wes 
and I came to Congress together, we won't say how many years 
ago, but we arrived in Congress together. And Brad Carson has 
been, of course, a citizen of the Cherokee Nation and certainly 
added a great deal to this Committee and to the Congress.
    So I just thank you for your testimony. I don't really have 
any questions. I think you have a very, very strong case here 
and I will do everything I can to support it.
    Thank you, Mr. Chairman.

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                from the State of Michigan, on H.R. 3534

    Mr. Chairman, I am in strong support of H.R. 3534, a bill that 
would settle certain claims of the Cherokee, Choctaw, and Chickasaw 
Nations to the Arkansas riverbed in Oklahoma. I want to thank 
Congressman Carson for his leadership in trying to resolve this legal 
dispute, which has been without resolution for more than three decades. 
I am proud to be an original cosponsor of this legislation.
    Since the Supreme Court first ruled in 1970 that the three tribes 
retain title to the Arkansas riverbed, the tribes have been seeking 
damages in Federal court for the mismanagement and uncompensated use of 
the Arkansas riverbed lands and resources.
    I want to commend the three tribal nations, the Cherokee, Choctaw, 
and Chickasaw Nations for working together to reach an agreement among 
their respective nations about settlement terms. I know firsthand by 
working with the Michigan tribes on the Michigan Indian Claims 
Settlement Act how difficult it can be to get sovereign nations to come 
together and agree to settlement terms.
    This bill would:
    1. LExtinguish the claims of the three tribes against the United 
States related to the Arkansas riverbed;
    2. LPuts an end to the threat of trespassing suits by the 
Department of Justice against hundreds of private landowners that 
occupy the drybed land;
    3. LAuthorizes an appropriation of nearly $50 million for full 
settlement of claims against the U.S.; AND
    4. LReserves the tribes' interest in the riverbed except for the 
disclaimed drybed lands.
    Mr. Chairman, it is my hope that we will honor the agreement of 
these sovereign nations and urge the Department of Interior and the 
Department of Justice to finalize negotiations soon so that we can 
finally put an end to this legal dispute by passing a settlement bill.
    I look forward to hearing the testimony today. Thank you
                                 ______
                                 
    Mr. Hayworth. Thank you, Mr. Kildee.
    The Gentleman from Hawaii?
    Mr. Abercrombie. Thanks very much, Mr. Chairman.
    Gentlemen, I want to make sure that I understand. I want to 
be supportive of this legislation. I want to make sure I have 
it down right, because I heard a couple of different figures.
    Is the intention of the legislation, in your understanding, 
to provide a continuing income, or is this a final settlement 
and some kind of--in other words, continuing income if there is 
money being made or income being derived from the selling of 
hydroelectric power and so on. Does that provide a continuing 
income to the tribes?
    Mr. Pyle. If I may, no, it is a one-time settlement.
    Mr. Abercrombie. OK, and land disputes is the same thing?
    Mr. Pyle. Although we could change on that electric if you 
would like us to.
    Mr. Abercrombie. No, no. I am just interested. So title 
then goes to the State. Is that right? Or it is no longer in 
dispute?
    Mr. Smith. The disputed lands, the 7,700 acres, title would 
vest with the present land occupants, individual land 
occupants.
    Mr. Abercrombie. Yes, I understand that, but I am talking 
about the riverbed now.
    Mr. Smith. No, the Cherokee and the Chickasaw and the 
Choctaw Nations retain title to the wet bed, to the wet bed.
    Mr. Abercrombie. But not the energy that is derived from 
the water that is flowing over it?
    Mr. Smith. That is correct. Congress has decided that with 
their navigational easement they are entitled to put that dam 
there, and it will stay there without compensation.
    Mr. Abercrombie. The reason I am asking is not to try to 
recreate a dispute or to urge any kind of renegotiation, but 
rather that in reading over this, I mean, this has been years 
and years and years this has been going on. I just want to make 
sure that if we pass thing, we don't end up missing something 
in the process, that then becomes a further grounds for 
dispute.
    You said the sand and the gravel hadn't been quite 
resolved. Does this take care of that, or is that going to 
continue to hold this up, if we do pass it, from being 
implemented?
    Mr. Smith. We anticipate a settlement on the sand and 
gravel.
    Mr. Abercrombie. Well, would this appropriation--it is $49 
million, right, approximately?
    Mr. Smith. Yes
    Mr. Abercrombie. Would that handle that?
    Mr. Smith. It would.
    Mr. Abercrombie. And so you are anticipating, this $49 
million anticipates a settlement that would be within the range 
of what your negotiations are now?
    Mr. Smith. Yes.
    Mr. Abercrombie. And the last thing is, will that cover all 
your attorneys fees?
    Mr. Smith. Yes.
    Mr. Abercrombie. Because this has gone on for 30 years or 
whatever it is. Is that intended to cover--does that cover the 
fees for this particular negotiation, or are you on the hook 
for whatever you have done in the past, or has that already 
been paid?
    Mr. Smith. We are on the hook, and this settlement will 
take care of it.
    Mr. Abercrombie. The only suggestion I would make in this, 
Mr. Chairman, is that--and I would be supportive. You know, I 
don't want to mess with your figures or try and change anything 
around. This would have to be something we would have to 
decide, but I would just like to be absolutely clear as to what 
is required of the tribes in terms of taking care of attorneys 
fees, so that everything is cleared, that all decks are 
cleared, and that perhaps we might think about adding more 
money to this rather than less to pay for those fees, so that 
the $49 million all goes to the tribes.
    Mr. Carson. If you would yield, Mr. Abercrombie--
    Mr. Abercrombie. Sure, I will.
    Mr. Carson. --we will certainly accommodate you on that, 
and I will talk to you personally and get your staff 
information, and we will try to make sure you are satisfied 
with what the bill says about attorneys fees and that it 
addresses all your concerns.
    Mr. Abercrombie. Yes. I would add them in. I mean, it is 
easy for me to say, but--
    Mr. Watkins. If I might mention to the Gentleman, too, I 
think Mr. Carson is correct. That is one thing. Surely all this 
is going to take care of that, and that is one big thing we are 
trying to--we don't want to continue a lot of lawsuits or allow 
them to continue on all these other interests. That is the one 
thing for settling this thing.
    If we can settle this, we will get out of all these maybe 
thousands of lawsuits it could be--
    Mr. Abercrombie. Oh, no, I agree absolutely. It is just in 
Section 5 here it says ``At the time the funds are paid to the 
Indian nations, the funds derived to be appropriated, the 
Secretary shall pay the Indian nations' attorneys those fees 
provided for in the individual tribal attorney fee contracts as 
approved by the respective Indian nations.''
    I read that to say that the Secretary--that we could have 
the Secretary pay it out of funds that we establish to pay it. 
It doesn't say, as I read this, that it has to come out of the 
Indian nations' end of this settlement figure. That is all. Do 
you see what I am driving at?
    Mr. Watkins. I think there is an allowable percent in the 
bill for attorney fees.
    Mr. Abercrombie. Ten percent, I think.
    Mr. Watkins. That is pretty hefty.
    Mr. Abercrombie. That is what I meant.
    Mr. Watkins. That is a lot.
    Mr. Abercrombie. It takes a lot, so that--
    Mr. Watkins. That is going to be negotiated with the tribal 
leaders and their attorneys.
    Mr. Abercrombie. Well, I wouldn't mind making this, if it 
is 10 percent, that means about $5 million, right?
    Mr. Carson. $41 million total in the settlement, so about 
$4.1 million.
    Mr. Abercrombie. OK, $4.1 million. Well, why don't we just 
add $4.1 million to this settlement and let them pay the fees 
out of it? You know, I am serious about it.
    Mr. Carson. I am sure we could find a lot of agreement from 
our panelists to do that. I think it is anticipated that the 
$41 million encompasses the $4.1, or $4 or $5 million in 
attorneys fees, already.
    Mr. Abercrombie. Oh, OK, that is included.
    Mr. Carson. But we will work with you on that, and perhaps 
the panelists can--
    Mr. Abercrombie. But this is years and years, decades. It 
is not fair to cut the compensation any more than it has to be. 
Or did you take, does the $41 million take into account the 
fees, so that the settlement is what you thought it should be?
    Mr. Smith. The $41 million actually is the value of our 
compensation, so we are taking out of the compensation our 
attorney fees, so we really--
    Mr. Abercrombie. I will conclude with this, Mr. Chairman. I 
am just saying to you that it is not their fault, and I don't 
see why the hell that the attorneys fees--in a lot of court 
cases, when you lose a case, and this is not losing exactly but 
it should be--you know, the judge can order you to pay the 
attorneys fees for the winning side. And the fact that this 
settlement in effect recognizes, that is what I am trying to 
say, that the claims of the tribes were legitimate, it seems to 
me the United States should pay those attorneys fees. That is 
my only point.
    Mr. Hayworth. I thank the Gentleman--
    Mr. Abercrombie. I appreciate it. I don't want to screw up 
the legislation or hold it up, but I am just telling you I 
believe that it is not the tribes' responsibility to pay these 
attorneys fees, because in effect this settlement is admitting 
that the United States owed this money, and therefore the 
attorneys fees should be paid by the United States. That is 
all.
    Mr. Hayworth. I thank the Gentleman from Hawaii for his 
point of view, and recognize the Gentleman from Oklahoma.
    Mr. Watkins. I would like to close. You know, Mr. Carson 
here has Cherokee ancestry and all that, and he is going to 
make sure, I think, things are fair. I grew up with the 
Choctaws down in the southern part of Oklahoma, and many of 
them I have worked with all my life, and lived with them 
literally, and Governor Anoatubby and I shared a home town 
together in the Chickasaw Nation for over 20-some-odd years, 
and I think they know that we have tried to work to have a fair 
settlement and one that--the main thing right now I think is, 
if they can get that, they can pay attorneys and get that over 
with, and they can have economic growth and development moving 
in a way that can be very positive for those tribes, for those 
members of those tribes.
    Mr. Hayworth. Thank you, Mr. Watkins.
    Mr. Carson, any closing comments?
    Mr. Carson. I would just ask that the record be kept open 
for 2 weeks on all three bills to supplement the record. And I 
was remiss in not thanking Mr. Watkins in my comments for his 
leadership and activity on this matter.
    Mr. Hayworth. The Gentleman from Michigan?
    Mr. Kildee. Mr. Chairman, I have a statement for the record 
also.
    Mr. Hayworth. Without objection, all statements will be 
there in their entirety, as will the statements of our 
witnesses. Again, gentlemen, we thank you very much, as we 
thank all the different panelists on the three different pieces 
of legislation that we considered today in this hearing, and 
this hearing stands adjourned.
    [Whereupon, at 1 p.m., the Committee was adjourned.]

    [A statement submitted for the record by Mr. Pallone 
follows:]

  Statement of The Honorable Frank Pallone, Jr., a Representative in 
          Congress from the State of New Jersey, on H.R. 3476

    I commend you, Mr. Chairman, for holding this hearing on American 
Indian and Alaska Native (AI/AN) legislation. Such hearing 
opportunities serve as valuable forums to further research and 
understand the social, economic, legal and political complexity of AI/
AN realities, before related legislation is brought to the House of 
Representatives for voting purposes. As Congressional history 
demonstrates, the decisions we make as Representatives can either 
positively or negatively impact these people, and their nations (i.e., 
tribes, bands, villages and communities).
    For example, between 1887 and 1934, the U.S. Government took over 
90 million acres of land from American Indians without compensation. 
More recently, between 1945 and 1968, Congress decided that Federal 
recognition and assistance to more than 100 tribes should be 
terminated. This termination policy created economic disaster for many 
American Indians, and their nations, resulting in millions of acres of 
valuable natural resource land being lost through tax forfeiture sales. 
This is a primary reason why AI/AN families have the highest poverty 
level of any group in the country, at a rate of 31% on some Indian 
reservations.
    By holding hearings on the impact of legislation related to 
American Indians and Alaska Natives, Congress moved to rectify its 
prior decisions by passing self-determination and self-governance 
policies. As a result of such polices, AI/AN nations and villages have 
greater control over their lands and resources, and have made great 
strides toward reversing the economic blight that resulted from 
previous Federal policies, and have revived their unique cultures and 
nations. Congress must withstand pressure from those individuals and 
groups that call for back tracking to old AI/AN policies, such as 
termination and reduction of AI/AN sovereign rights. We must 
acknowledge and learn from our mistakes, and not repeat them in the 
future because AI/AN nations and villages are relying upon our 
commitments.
    As is becoming more widely known, the United States Constitution 
recognizes that American Indian Nations are sovereign governments. 
Hundreds of treaties, the Supreme Court, the President and the Congress 
have repeatedly affirmed that Indian Nations retain their inherent 
powers of self-government. In addition, the United States Government is 
committed to a trustee relationship with the Indian Nations. This trust 
relationship requires the Federal Government to exercise the highest 
degree of care with tribal and Indian lands and resources.
    I have thoroughly reviewed H.R. 3476, a bill to protect 697-acres 
of land, known as The Great Oak Ranch, held in fee by the Pechanga Band 
of Luiseno Mission Indians from condemnation until a final decision is 
made by the Secretary of the Interior regarding a pending fee to trust 
application for that land. I have also listened to those views that are 
in opposition to the passage of this legislation. I believe that there 
exists some misunderstanding between these two opposing sides. I am 
here today to clear the record.
    This property is part of the ancestral homelands of the Pechanga 
and contains many historical, cultural and archaeological resources and 
sites that are significant to the Band. In addition, it is home to the 
largest known naturally growing California live oak tree, estimated to 
be more than 800 years old. And despite statements made to the 
contrary, there are no plans for an Indian casino to be built on this 
land.
    H.R. 3476 simply maintains the status quo until the Federal process 
for taking land into trust has run its course and the application is 
evaluated on its merits. Furthermore, it prevents a change in the 
status of the land until Interior makes a FINAL determination on taking 
the land into trust. There is no guarantee Interior will take this land 
into trust; however, I do believe that this process should be allowed 
to run its course unabated. This legislation does not take a position 
on the land to trust application, infringe on states' rights, nor 
prevent opposing groups from appealing Interior's decision. It does, 
however, allow adequate time for the Department of Interior to make a 
final determination on taking this land into trust.
    Therefore, I support passage of H.R. 3476 and would urge my 
colleagues to do the same.

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