[House Hearing, 107 Congress]
[From the U.S. Government Publishing 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
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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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
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C O N T E N T S
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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
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Wednesday, April 17, 2002
U.S. House of Representatives
Committee on Resources
Washington, DC
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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.
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\5\ Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831);
Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832).
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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
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\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.
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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
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\10\ See Article 5 of the Treaty of New Echota, 7 Stat. 478, 481.
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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
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\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.
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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.
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\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.
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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.
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\16\ Act of June 28, 1898, 30 Stat. 495.
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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.
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\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).
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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.
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\19\ See memorandum of Duard R. Barnes, Acting Associate Solicitor,
Division of Indian Affairs, Department of Interior, to Legislative
Counsel dated August 12, 1976.
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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.
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\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.
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\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.
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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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