[Senate Hearing 107-548]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-548
 
                 T'UF SHUR BIEN PRESERVATION TRUST AREA ACT
=======================================================================

                             JOINT HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES

                                AND THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                S. 2018

  TO ESTABLISH THE T'UF SHUR BIEN PRESERVATION TRUST AREA WITHIN THE 
  CIBOLA NATIONAL FOREST IN THE STATE OF NEW MEXICO TO RESOLVE A LAND 
 CLAIM INVOLVING THE SANDIA MOUNTAIN WILDERNESS AND FOR OTHER PURPOSES

                               __________

                             APRIL 24, 2002


                       Printed for the use of the
               Committee on Energy and Natural Resources
                  and the Committee on Indian Affairs





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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii              FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota        PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida                  DON NICKLES, Oklahoma
RON WYDEN, Oregon                    LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota            BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana          CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana                   RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California         CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York         JON KYL, Arizona
MARIA CANTWELL, Washington           CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware           GORDON SMITH, Oregon

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               Brian P. Malnak, Republican Staff Director
               James P. Beirne, Republican Chief Counsel
                          Mike Connor, Council
                Frank Gladics, Professional Staff Member
                              ----------                              

                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman
            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
HARRY REID, Nevada                   JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
        Patricia M. Zell, Majority Staff Director/Chief Counsel
         Paul Moorehead, Minority Staff Director/Chief Counsel










                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator from New Mexico................    12
Bryson, Nancy, General Counsel, Department of Agriculture........    21
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........     2
Craig, Hon. Larry E., U.S. Senator from Idaho....................     9
Cummins, E. Tim, County Commissioner, Bernalillo County, 
  Albuquerque, NM................................................    55
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     3
Hordes, Stanley M., Ph.D., President, HMS Associates, Inc........    29
Inouye, Hon. Daniel K., U.S. Senator from Hawaii.................     1
Leshy, John D., Former Solicitor, Department of the Interior.....    34
Miller, Anita P., Co-Chair, Sandia Mountain Coalition, 
  Albuquerque, NM................................................    59
Murkowski, Hon. Frank H., U.S. Senator from Alaska...............    11
Myers, William G., III, Solicitor, Department of the Interior....    13
Paisano, Stuwart, Governor, Pueblo of Sandia, Sandia Tribal 
  Council, Bernalillo, NM........................................    47
Riordan, Guy, Owner, Piedra Lisa Tract, Albuquerque, NM..........    82
Sansonetti, Thomas L., Assistant Attorney General for Environment 
  and Natural Resources, Department of Justice...................    17
Stern, Walter E., Esq., Modrall, Sperling, Roehl, Harris and 
  Sisk, Representing Sandia Tram Company.........................    69
Sullivan, Edward, Executive Director, New Mexico Wilderness 
  Alliance, Albuquerque, NM......................................    75

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    91

                              Appendix II

Additional material submitted for the record.....................   111








                      T'UF SHUR BIEN PRESERVATION 
                             TRUST AREA ACT

                              ----------                              


                       WEDNESDAY, APRIL 24, 2002

                               U.S. Senate,
         Committee on Energy and Natural Resources,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committees met, pursuant to notice, at 2:35 p.m. in 
room SD-366, Dirksen Senate Office Building, Hon. Daniel K. 
Inouye, Chairman of the Committee on Indian Affairs, presiding.

          OPENING STATEMENT OF HON. DANIEL K. INOUYE, 
                    U.S. SENATOR FROM HAWAII

    Chairman Inouye. We gather this afternoon to receive 
testimony on S. 2018, a bill to establish the T'uf Shur Bien 
Preservation Trust Area within the Cibola National Forest in 
the State of New Mexico, to resolve a land claim involving the 
Sandia Mountain Wilderness, and for other purposes.
    The chairman of the Energy Committee, Senator Bingaman, is 
presently actively involved in a debate in the Senate chamber, 
so he is unable to be with us and he has asked me to convene 
the session.
    As you know, this is not the first erroneous boundary 
service or the first inaccurate interpretation of the words 
used in a statement of boundaries that has come before the 
Congress. We have had need to address similar circumstances in 
several other States and so we are accustomed to the issues 
that are before the committees today.
    In reading the testimony of the witnesses last evening, I 
was particularly impressed with the thoughtful statements of 
the Pueblo of Sandia. It is clear to me that not only has this 
area always had special cultural and spiritual significance to 
the current members of the Pueblo and many generations of their 
ancestors, but that the Pueblo is committed to preserving the 
values of the wilderness designation that was brought about 
under the stewardship of the senior Senator from New Mexico, my 
good friend Pete Domenici.
    If one knows a little bit about the Pueblo, one might have 
an even better understanding of the commitment the Pueblo has 
to maintaining the status quo in this area. For those of you 
who may not know, the Pueblo of Sandia is one of the Nation's 
leaders in environmental protection and management. For 
example, in 1997 the Pueblo was the first tribal recipient of 
the U.S. Environmental Protection Agency's Partnership for 
Environmental Excellence Award, for the Pueblo's outstanding 
success in developing an environmental management program to 
protect and manage tribal resources.
    Two years later, the John F. Kennedy School of Government 
at Harvard University recognized the Pueblo of Sandia with a 
$10,000 high honor award for excellence in tribal self-
governance in the field of environmental protection. Of the 556 
federally recognized tribes in the Nation, the Pueblo of Sandia 
was one of only eight tribal governments in the Nation to 
receive this prestigious honor.
    It is clearly a further testament to the Pueblo's concern 
for the environment that they maintain an environmental 
department whose number of personnel is equal to 4 percent of 
the total tribal citizenry. So as we receive testimony on S. 
2018 today, I believe it is important that we keep in mind the 
context in which we are considering the terms of the settlement 
agreement.
    The Federal court has ruled that an earlier Interior 
Department Solicitor's opinion could not stand because it did 
not accurately take into account the circumstances surrounding 
the Pueblo's land grant. Should the Congress fail to act before 
the terms of the settlement agreement expire in November, 
should this matter then proceed to be a subject of further 
litigation, in all likelihood the claims of the Pueblo will 
prevail.
    The fact that the Pueblo has come to the table with other 
interested parties and has agreed to preserve the status quo on 
lands to which they could otherwise assert exclusive use 
demonstrates not only a measure of utmost good faith, but of 
desire on the part of the Pueblo to assure that good relations 
among neighbors will be the hallmark for the path to be 
followed by future generations.
    So I commend the parties for all that they have done to 
bring us to this point and I hope that we can bring this matter 
to a swift resolution and avoid the specter of further time-
intensive and costly litigation.
    May I now call upon my co-chairman, Senator Nighthorse 
Campbell.

          STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, 
                   U.S. SENATOR FROM COLORADO

    Senator Campbell. I thank you, Mr. Chairman. Just very 
briefly, I thank you for convening this hearing. I think that 
when we have a chance for all the affected parties to come to 
Congress and be respectful of each other's views, it is 
certainly a step in the right direction.
    It is my understanding that the exact location of the 
eastern boundary of the Sandia Pueblo has been an issue for 
decades. It is not unusual for those boundaries, as you 
mentioned, to be of some dispute since the methods of measuring 
in the days when it was negotiated were certainly not a clear 
science, often done just by where a tree stood or a rock stood 
or by what was called lengths of chains. Clearly, the method of 
transferring the land itself was suspect in many cases, some 
done by negotiation, some done at gunpoint, as everyone knows.
    But we simply cannot turn the clock back and in my opinion, 
when we have two different opinions by two predecessor 
Solicitor's opinions, when they have the opposite conclusion, 
that leaves us with the difficult task of trying to find some 
kind of a compromise and some kind of an agreement to avoid 
costly and expensive litigation that will in my view, as yours, 
probably hold in favor of the Pueblo and thereby jeopardize the 
lives of the non-Indian people who have homes in that area, who 
invested their life in that area. I do not think that is 
particularly good, either.
    There is at least one part of Solicitor Leshy's opinion 
that seems helpful. He found that a new survey was necessary, 
but postponed the implementation of his opinion in the hope 
that the parties could reach an agreement that would make such 
a survey unnecessary. The question I would have answered from 
each witness is whether you agree that we should continue to 
try to reach a settlement or we should continue to allow each 
new Solicitor, Interior Solicitor, to take his best shot at it 
and reach an opinion that might be overturned by a court.
    Finally, because of the possibility that this bill may be 
used as a model or a template for many other similar 
controversies, I trust that the Indian Affairs Committee, on 
which I serve with you and Senator Domenici, too, will have an 
opportunity to formally review any bill that we move forward 
with and consider changes which address the concerns.
    Thank you, Mr. Chairman.
    Chairman Inouye. Thank you very much.
    May I now recognize the senior Senator from New Mexico, 
Senator Domenici.

       STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Domenici. Thank you very much, Mr. Chairman.
    Since a large number of the people in the audience are from 
my State, might I say welcome to all the New Mexicans, most of 
whose faces I recognize. Those that I do not, we welcome you 
nonetheless.
    My opening statement, Mr. Chairman, is rather long and I 
will do the best I can to state it quickly. But it is my way of 
laying this entire matter before the people in my State, who 
are genuinely interested.
    I want to thank the Energy and Natural Resources Committee 
and the Indian Affairs Committee for holding this joint 
hearing. I also welcome the witnesses. We have a pretty good 
array of witnesses and in 2 or 3 hours we surely ought to get a 
good flavor and a lot of questions answered.
    I would like to speak briefly about this land, its history 
and its importance to our State. Much of the area in question 
has for the past quarter century been congressionally mandated 
wilderness area, the highest level of protection for publicly 
owned lands that Congress can bestow. I worked on the creation 
of that Sandia Wilderness in 1978 during my first term here in 
the Congress.
    We were able to pass the wilderness designation giving this 
land the wilderness protection even though it is easily 
accessible by a very short walk from the city limits of 
Albuquerque. The proximity demanded wilderness designation 
because this land was facing potentially severe degradation. I 
consider designation of this wilderness area one of the most 
important legacies that I will leave as a Senator from New 
Mexico.
    More than 1 million visitors use this land each year and a 
significant commercial interest exists on the land already. You 
can see why it is important as to how we go about transferring 
this land in light of just that little bit of background.
    The stewardship of these 10,000 acres has been good, even 
in the face of dramatic increases in use and population 
increases. I believe all parties to this issue want this good 
stewardship to continue and the land preserved for posterity. 
Governor Paisano has told me that personally, as have 
homeowners and city and county officials.
    Three significant interests seem relevant here: first, the 
interest of the Pueblo of Sandia, whose members have used the 
land before any of the other parties in this matter; second, 
the interest of the private landowners in the area, who find 
themselves in some potential jeopardy as far as full use and 
access to their property; and third, an often forgotten 
interest, that of the American public that uses this unique 
urban-wilderness interface in ever-increasing numbers. They are 
the public that we must serve.
    The specific question that has haunted this land since 
legal proceedings began in 1980 is simple: Was a serious error 
made in surveying the original grant of land to the Pueblo of 
Sandia or was the original survey accurate to the best of our 
ability to determine? Our search for the truth in this matter 
faces serious historical challenges. The origin of the dispute 
began more than 200 years ago and has spanned several different 
governments, territorial, colonial, pueblo, and Federal. The 
original documents are written in an archaic Spanish not widely 
used today, even in our State.
    This property's confusing historical record is now further 
complicated with a wide diversity of current interests on the 
land, which I have just stated in my opening remarks.
    I am pleased that among the witnesses we will hear from 
today is one of the very few persons alive who has personally 
reviewed this specific question.
    The bill's main problems: we are here today to review a 
bill proposed by my colleague Senator Bingaman. I have several 
concerns with the bill's general approach as well as its 
substantive effect. First, the bill fails to resolve or even 
address the core question which has led to these 20 years of 
litigation. Senator Bingaman's bill instead takes the approach 
of attempting to embody in legislation the basic points of a 
settlement agreement entered into last year by only some of the 
parties involved in this litigation.
    Senator Bingaman's bill thus departs from the normal 
avenues established by Congress to deal specifically with 
claims such as these, the so-called Indian Claims Commission 
Act, ICCA, that is used quite often in similar cases in our 
State and throughout Indian country; or the use of conservation 
easements to ensure that historical use be retained, but that 
management of public lands be left in the hands of the public 
agencies. That is two approaches.
    Secondly, Senator Bingaman's bill operates to effectively 
give the Pueblo veto power over all future uses of this land. 
This situation, while at first blush it might appear to be 
appropriate, could lead to disastrous consequences. Let me give 
you just one example.
    The management plan for the area that would become law if 
S. 2018 is passed requires the development of a comprehensive 
fire management plan. The legislation requires that the Pueblo 
of Sandia and the counties must agree with all new uses in this 
area. To the extent that the fire management plan fails to meet 
the needs of either the Pueblo or the county, there will be a 
conflict. If these conflicts are not resolved up front, when 
fire occurs I am concerned that fire crews will not be able to 
implement suppression efforts in a timely and effective manner. 
This should be determined in advance or in a manner better than 
prescribed in the Senate bill.
    I also suspect that private land owners will likely have a 
different goal for the fire plan. They will likely want 
immediate and complete suppression of fires, while Forest 
Service and perhaps the Pueblo may support the introduction of 
more prescribed burns and let-burn policies for the forests. 
Given our experience in the Los Alamos fires of 2000, I for one 
would like to know about what the fire plan for this area might 
be before we legislate.
    Finally, the bill operates to legislatively ratify a new 
management plan for the area that has not enjoyed the benefit 
of a formalized public review. The management plan as some read 
it is not subject to review under the National Environmental 
Policy Act. In fact, the plan has not been reviewed under any 
of the relevant statutes that Congress has passed and various 
presidents have signed into law.
    Now, it may very well be that it is the position of some, 
that this is immune from those laws. We hear so much from 
Americans that we cannot have any kind of transaction that is 
even close to a major Federal action without those laws. I just 
raise it here today.
    While it is true that any future amendments to this 
proposed management plan might be subject to some public and 
agency review, the underlying plan S. 2018 ratifies, if it is 
ratified, is exempt, I repeat exempt, from such review. This 
strikes me as a significant departure from the entire 
environmental regime imposed on the resources of the West 
during the past 25 years.
    I have made it clear to Senator Bingaman, my good friend, 
and others that I have other problems with S. 2018, the 
underlying settlement agreement and the management plan it 
proposes to ratify. I will include those concerns with my 
formal statement.
    Before I conclude, I understand that the Pueblo of Sandia 
supports most of the Bingaman legislation. The Pueblo will 
speak for itself this afternoon and it will be helpful to know, 
if they don't, what they don't. I am told that some of 
Bernalillo County's concerns and those of the city of 
Albuquerque also have been addressed. That would mean, if it is 
only some, that there are some that are not. We will hear from 
the county and home owners later.
    I understand that many points of clarification remain. The 
devil is always in the details. We will hear these details 
today. I know that home owners and the county have spent 
hundreds of thousands of dollars on this issue and, to quote 
one of them, they are about ``bled dry.'' Yet in this country 
we try to find justice, not on the basis of who has the most 
money, but who has the most facts.
    With that, I welcome today's hearing and look forward to 
the witnesses' testimony. There are two other issues that I 
would quickly raise. They are addendums to my statement. One is 
veto power. I believe that we have to look at that carefully. 
The Federal Government must--there is another issue. If in fact 
any laws are changed or management affecting the area is 
changed by the Federal Government, the Federal Government must 
compensate the Pueblo as if they own the land in fee, full 
compensation in that event.
    Tribal law precedent raises another interesting issue and 
there are two others, but I will just ask that they be inserted 
in the record as if I had stated them.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Domenici follows:]
       Prepared Statement of Hon. Pete V. Domenici, U.S. Senator 
                            From New Mexico
                                 intro
    First, I want to thank the Energy and Natural Resources Committee 
and the Indian Affairs Committee for holding this joint hearing. As a 
long-time member of both committees, I believe that the important 
subject before us today merits such an unusual joint hearing. I also 
welcome the witnesses, especially those New Mexicans who have traveled 
a long way to testify today. The large number of other New Mexicans 
present at this hearing dramatizes the interest that many of my 
neighbors in Albuquerque and the surrounding region have in this 
matter.
                                history
    Before I comment directly on the bill that is the subject of 
today's hearing, I would like to speak briefly about this land, its 
history and importance to our state.
    Much of the area in question has for the past quarter of a century 
been a Congressionally mandated Wilderness Area, the highest level of 
protection for publicly-owned land the Congress can bestow. Before most 
of the members of these two committees were Senators, I worked on the 
creation of the Sandia Wilderness Area. In 1978, during my first term, 
we were able to pass the wilderness designation, giving this land 
wilderness protection even though it is easily accessible by a very 
short walk from the city limits of Albuquerque. Indeed, its proximity 
demanded wilderness designation and without it, this land was facing 
potentially severe degradation. I consider designation of this 
wilderness area one of the most important legacies I will leave as a 
Senator from New Mexico.
    Although the land is a protected wilderness area, more than 1 
million visitors use it each year, and significant commercial interests 
exist on the land. Apparently the stewardship of these 10,000 acres has 
been good, even in the face of dramatic increases in use. I believe 
that all parties to this issue want this good stewardship to continue 
and this land preserved for posterity. Governor Paisano has told me 
that personally, as have homeowners and city and county officials.
    Three significant interests seem relevant here: first, the interest 
of the Pueblo of Sandia, whose members have used the land before any of 
the other parties in this matter; second, the interests of the private 
landowners in the area, who find themselves in some potential jeopardy 
as far as full use and access to their property; and, third, an often 
forgotten interest, that of the American public that uses this unique 
urban-wilderness interface in ever-increasing numbers.
    The specific question that has haunted this land since legal 
proceedings began in the 1980s is simple: ``Was a serious error made in 
surveying the original grant of land to the Pueblo of Sandia, or was 
the original survey accurate to the best of our ability to determine?''
    Our search for the truth in this matter faces serious historical 
challenges. The origin of the dispute began more than 200 years ago and 
has spanned several different governments--Territorial, Colonial, 
Pueblo, and Federal. The original documents are written in an archaic 
Spanish not widely used today in our hemisphere. But this property's 
confusing historical record is now further complicated with a wide 
diversity of current interests in this land.
    I am pleased that among the witnesses we will hear from today is 
one of the very few persons alive who has personally reviewed this 
specific question.
                        the bill's main problems
    We are here today to review a bill proposed by my colleague, 
Senator Bingaman. I have several concerns with the bill's general 
approach, as well as its substantive effect.
    First, the bill fails to resolve, or even address the core question 
which has led to these 20 years of litigation. Sen. Bingaman's bill, 
instead, takes the approach of attempting to embody in legislation the 
basic points of a settlement agreement entered into last year by only 
some of the parties involved in this litigation. Sen. Bingaman's bill 
thus departs from the normal avenues established by Congress to deal 
specifically with claims such as these: the Indian Claims Commission 
Act (``ICCA''), used quite often in similar cases in our state and 
throughout the nation; or, the use of conservation easements to insure 
that historical uses be retained, but that management of public lands 
be left in the hands of public agencies.
    Secondly, Sen. Bingaman's bill operates to effectively give the 
Pueblo veto power over all future uses of the land. This situation, 
while at first blush may appear appropriate, could lead to disastrous 
consequences.
    Let me give you an example. The Management Plan for this Area (that 
would become law if S. 2018 is passed) requires the development of a 
comprehensive fire management plan. The legislation also requires that 
the Pueblo of Sandia and the Counties must agree with all new uses in 
this area. To the extent that the fire management plan fails to meet 
the needs of either the Pueblo or the County there will be a conflict. 
If these conflicts are not resolved up front, and a fire occurs, I am 
concerned that fire crews will not be allowed to implement suppression 
efforts in a timely and effective manner.I also suspect the private 
landowners will likely have a very different goal for the fire plan, 
(i.e. they will likely want immediate and complete suppression of 
fires), while the Forest Service and perhaps the Pueblo may support the 
introduction of more prescribed burns and a let-burn policy for natural 
fires. Given our experience in Los Alamos and the fires of 2000, I for 
one would like to know about what the fire plan for this Area might be, 
before we legislate.
    Finally, the bill operates to legislatively ratify a new management 
plan for the area that has not enjoyed the benefit of a formalized 
public review. This management plan, as some read it, is not subject to 
review under the National Environmental Policy Act. In fact, the 
management plan in S. 2018 has not been reviewed under any of the 
relevant statutes Congress has passed and various President's have 
signed into law. While it is true that any future amendments to this 
proposed management plan might be subject to some public and agency 
review, the underlying plan that S. 2018 ratifies is exempt, I repeat, 
exempt from such review. This strikes me as a significant departure 
from the entire environmental regime imposed on the resources of the 
West during the past 25 years.
    I have made it clear to Sen. Bingaman and others that I have other 
problems with S. 2018 and the underlying settlement agreement and 
management plan it proposes to ratify. I will include those concerns 
with my formal statement today as part of the record.
    Before I conclude, I understand that the Pueblo of Sandia supports 
most of the Bingaman legislation and the Pueblo will speak for itself 
later this afternoon. I am told that some of Bernalillo County's 
concerns, and those of the City of Albuquerque, have also been 
addressed. We will hear from the County and homeowners later, also. I 
understand the many points of clarification remain, and that the devil 
is always in the details. We will hear those details today. I know that 
the homeowners and the County have spent hundreds of thousands of 
dollars on this issue and, to quote one of them, ``are about bled 
dry.'' Yet, in this country, we try to find justice not on the basis of 
who has the most money, but who has the most facts.
    With that, I welcome today's hearing and I look forward to the 
witnesses' testimony.
                                ADDENDUM
    Here are some of my specific other concerns with this legislation:
1. ``Veto Power"
   while this legislation gives greater control to local 
        parties over land use, it arguable contradicts public and 
        environmental protections such as those under NEPA. 
        Specifically, two local counties and the Pueblo are given an 
        exclusive ``right to consent'' to new uses in the area. The 
        public is left out of any management decisions.
   If Congress or the Forest Service ever changes laws or 
        management effecting the area, the federal government must 
        compensate the Pueblo as if they owned the land in fee. This 
        opens the federal government up to millions in potential 
        claims.
   This assumes that the Pueblo has what is tantamount to a 
        right in fee title. That has not been shown. To date, no court 
        of law has heard the merits of this claim based on a 
        presentation of evidence. The only finding that the claim is 
        meritorious is an opinion of one Interior Solicitor which is 
        diametrically opposed to a previous Solicitor's opinion. There 
        are clearly differences of opinion on the law and facts that 
        could be decided one way or the other.
2. Tribal Law Precedent
   There is no precedent for any Indian tribe having exclusive 
        criminal and civil jurisdiction over a tract of public land. 
        This confuses the traditional distinction between tribal land 
        and non-tribal land.
   As written, this area could be the exclusive hunting and 
        fishing domain of the Pueblo ostensibly for religious and 
        cultural purposes. This will inevitably result in conflicts 
        with non-Indian users of the area as well as the adjacent 
        landowners.
   Congress intended to settle all outstanding tribal land 
        claims under the Indian Claims Commission Act (``ICCA''). If 
        the legislation were to pass, the question becomes this: Could 
        tribes that either failed to bring claims before the ICCA or 
        tribes that received monetary compensation under the ICCA, now 
        look for an administrative boundary adjustment for additional 
        land?
   Based on former Solicitor Leshy's opinion, tribes and others 
        may consider appealing to the Department of the Interior for 
        boundary adjustments, since Mr. Leshy held that Interior can 
        administratively remove Congressionally designated land from 
        the Forest Service.
   S. 2018 purports to give trust status to certain lands 
        acquired by the Pueblo within the area. This gives the Pueblo 
        exclusive jurisdiction over these small islands of trust land 
        contained within a National Forest. For the general public, 
        this raises the specter of Interior and the Pueblo making 
        different rules and regulations for small inholdings. Thus, 
        could an inadvertant trespass by an innocent hiker land that 
        person before a tribal court?
   The jurisdiction given to the Sandia Pueblo under the bill 
        is representative of ``Indian Country''--that of tribal trust 
        land, while purporting to be maintained as National Forest 
        land. Therefore, will all tribal trust rights and 
        responsibilities also apply?
3. Wilderness Issues
   The bill eliminates section 4(d)(4) of the Wilderness Act, 
        which gives the President authority for establishment of 
        facilities for the general public interest. Not only does this 
        pick and choose the applicability of sections of the Wilderness 
        Act, but it could potentially effect needed emergency response 
        activities such as for fire.
   If modifications of the Wilderness ``nature'' of the area--
        which is a vague characterization--occur, the government will 
        be responsible for millions of dollars in damages to the 
        Pueblo.
   Finally, the bill ``freezes'' current land status and 
        management in the year 2002. At the same time, S. 2018 exempts 
        this area from some existing laws and exempts the area from all 
        future laws unless Congress specifically applies those laws to 
        the area.
   The Pueblo has claimed it seeks protection of the area, and 
        wishes only free and unrestricted access to the area for 
        traditional and cultural uses. Therefore, does S. 2018 imply 
        that: federal Wilderness designation is NOT protective enough; 
        and current federal laws to preserve and protect cultural and 
        religious resources, such as the American Indian Religious 
        Freedom Act, will not be adequate?
4. Bad Precendent
   I am concerned, in addition, about the precedent this sets 
        for similar disputes in my home state and in other states. In 
        this time of unprecedented national litigation over land and 
        water, I believe we have to be very careful. I worry about the 
        impact our actions might have on other historically-based 
        claims, not just from American Indians, but from other parties 
        who believe that their land has been withheld from them 
        unjustly. When we are in an area of great uncertainty, our 
        public responsibility is to move with great care.

    Chairman Inouye. Without objection.
    Now it is my pleasure to recognize a member of the Energy 
Committee, Senator Craig.

        STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR 
                           FROM IDAHO

    Senator Craig. Mr. Chairman, let me first ask unanimous 
consent that the testimony of Senator Frank Murkowski, the 
ranking member of that committee, become a part of the record.
    Chairman Inouye. Without objection, so ordered.
    Senator Craig. I think as we know, he is on the floor with 
the chairman this afternoon as we move to try to finalize the 
energy bill.
    I have a lengthy statement and I will ask unanimous consent 
that it become a part of the record and I will shorten it for 
the sake of those witnesses who are sitting out there 
diligently waiting to be heard by this committee. But I will 
tell you that a lot of what I have to say is reflective of many 
of the comments of the senior Senator from the State of New 
Mexico.
    While I understand these issues oftentimes take on a local 
importance and a local character as it relates to the need to 
settle, when we are dealing with public lands in our Nation 
there are processes and rules that we all play by and we must 
play by for the sake of the public. Without question, Pueblo 
Sandia and the tram company, the Forest Service, the Department 
of the Interior, as well as all of the affected parties who did 
not sign the agreement, deserve to be heard. I would hope, as I 
think my colleague from New Mexico has already stated, we can 
make an effort to resolve this issue.
    You know, claims stemming from 1859 or earlier that were 
not resolved by the Indian Claims Commission between 1946 and 
1978, well, I guess they ultimately make their way here. As a 
result of that, we have got to resolve them. At the same time, 
following those time frames and especially starting in the mid-
seventies, we developed some processes of transparency in 
decisionmaking that are critical to the public interest, 
whether it is FLPMA, the Federal Land Planning Management Act, 
or whether it is the National Forest Management Act.
    We are talking about what, 10,000 plus acres of I think 
critical importance to all parties involved, and a public 
interest that has to be addressed here. What it appears might 
be happening--and I say this with some trepidation--is that 
this legislation would convert the area into a super-
wilderness, one where the ability of a President to approve 
water development, transmission lines, and possible roads and 
overriding public needs are taken away.
    Now, clearly in a wilderness area I can understand that to 
a point of degree, but at the same time provisions under the 
Wilderness Act and the Clean Water Act and other environmental 
protections we would not want to ignore, and I think they have 
to be resolved as we move forward.
    I am worried about the ability of the Forest Service to 
deal with the very real problems that were, again, spoken to by 
my colleague as it relates to wildfires. New Mexico last I 
checked was still burning and probably will be this summer. 
Arizona is now on fire. Somehow we have grown to believe that 
fire left alone is a natural way of taking care of the 
landscape. Under normal settings, certainly not pre-Pueblo but 
pre-European man, that might be argued as a valuable and 
important tool.
    Post-European man's presence on the soil would suggest that 
we change the environment in a way for some of that management 
to control these fires and manage them accordingly. The fuel 
loading is critical. I believe that is an important issue here.
    Also, the plague or, if you will, I think it is pronounced 
``HAN-tas'' virus, is an issue that I think all of us are a bit 
concerned about.
    Mr. Chairman, let me ask you to move on with the hearing. 
At the same time, I think that a thorough review in the public 
arena of this issue and a settlement where all parties were 
not--I should say may have been at the table, but did not 
agree, that is still in conflict. While public policy does 
conflict resolve sometimes, it also creates new conflict. We 
would like to hope that in the process we could resolve all of 
that.
    Thank you.
    [The prepared statements of Senator Craig and Senator 
Murkowski follow:]
   Prepared Statement of Hon. Larry E. Craig, U.S. Senator From Idaho
    Chairman Bingaman and Chairman Inouye, I appreciate the opportunity 
to come together in a joint hearing and learn more about this land 
claim, it's Settlement Agreement, the Management Plan and S. 2018. I 
look forward to hearing from the various witnesses who have been 
invited to help us better understand the intricacies of this 
legislation.
    Normally, legislation such as this, to resolve a local land 
dispute, would draw very little attention. Given the relatively unique 
solutions proposed in this legislation and its potential to both help 
resolve other federal land disputes, as well as perhaps solicit new 
land disputes, expect this hearing will be the beginning of a 
discussion that will be interesting and at times challenging.
    I think that all parties to this dispute, the Pueblo of Sandia, the 
Tram Company, the Forest Service and the Department of the Interior, as 
well as those affected parties who did not sign the Settlement 
Agreement, and Congress are all going to have to be flexible and 
stretch to find a solution that is fair and equitable to all involved.
    I am interested in learning how it is that a claim stemming from 
1859, or earlier, was not resolved by The Indian Claims Commission 
between 1946 and 1978. I understand that several of the witnesses here 
today can help us better understand that. I am also quite frankly 
concerned about the number of tribes that lost claims in the Indian 
Claims Commission process might react to this legislation.
    Like several other Senators here today, I have concerns about some 
of the process questions. I am curious how the elimination of FLPMA and 
NFMA in this 10,000 acre area meets the commitments Congress made to 
the American Public to empower them to help shape federal land 
management and policy.
    While I understand how difficult it is to gain settlement 
agreements, I think we have a fundamental responsibility to ensure all 
potentially affected parties to these agreements are protected. I am 
told we have a number of witnesses here today that did not sign the 
agreement and I am sure they will help us understand why, as well as 
what we need to do in this legislation to protect their rights.
    I am troubled by the inconsistencies between the proposed 
Management Plan and the Settlement Agreement for this area, both of 
which will be tiered to the legislation. I wonder if we wouldn't be 
better off simply writing the important provisions of these documents 
into a longer bill to eliminate some of the inconsistencies.
    I also note, with some trepidation, that this legislation would 
convert this Area into a ``super-wilderness'', one where the ability of 
the President to approve water development, transmission lines, and 
possibly roads for an overriding public need has been taken away. If we 
are willing to legislate changes to the Wilderness Act in S. 2018, what 
other provisions of the Wilderness Act, the Clean Water Act, or other 
environmental protections will we want to ignore to help resolve other 
local land management issues?
    I worry about the ability of the Forest Service to deal with the 
very real problems such as wildfire or endemic diseases such as the 
Plague and the Hantavirus in relation to some of the limitations in 
this legislation. For instance, S. 2018 includes a provision in the 
management plan that indicates that a fire management plan must be 
developed, but provides the Pueblo of Sandia the ability to veto new 
activities--is this a conflict?
    Likewise, the documents suggest the existence of both the Plague 
and the Hantavirus, but include provisions that require the agency to 
allow the Pueblo of Sandia a full right of access to the area to carry-
out both cultural and traditional activities. In the event of an 
outbreak of either of these deadly endemic diseases will federal land 
managers have the ability to enforce a full closure of the area to keep 
all people out of the area until the problem subsides? If not and the 
Pueblo insist on exercising their valid right of access--will the 
Federal Government be liable if a Tribal member contracts either of 
these diseases?
    Finally, Mr. Chairman, I need to know more about the provisions 
that give the Pueblo of Sandia a right of claim, as if they held the 
title to this land, to demand payment from the Federal Government if 
Congress, the Forest Service, or others change the management of this 
area in the future? How much is that liability? And how do we defend 
encumbering the generations who follow us when we have no idea what the 
future issues and problems might be in this area?
    I apologize for the length of this statement, Mr. Chairman, but I 
hope you understand that this is not a simple land claim, and S. 2018 
is not a simple solution. I trust each of our witnesses today will 
provide us testimony that helps us understand the issues and provides 
us with suggestions that will help us resolve this claim in the most 
fair and equitable means possible.
                                 ______
                                 
      Prepared Statement of Hon. Frank H. Murkowski, U.S. Senator 
                              From Alaska
    Chairman Bingaman and Chairman Inouye, I am pleased that you have 
called this hearing. As a member of both the Indian Affairs Committee 
and the Energy and Natural Resource Committee this legislation is both 
interesting, innovative, and I might add perhaps a bit controversial.
    To the extent that we can find a resolution to this land claim that 
satisfies both the Pueblo of Sandia and the legitimate needs of the 
American Public, I am interested in working with you on this 
legislation.
    I am quite interested in the provisions that provide a direct role 
for tribal and community leaders federal land management. In Alaska we 
have a strong desire to help our people have more of a say in how 
federal land management is carried out. I see potential opportunity to 
use some of the provisions in S. 2018 as a model to help resolve other 
potential Native claims and concerns with federal land management in 
Alaska.
    Having said that, I am troubled by a number of issues related to 
this legislation. For example, the back and forth history of 
Solicitor's Opinions from the Department of the Interior and the fact 
that Solicitor Leshy's opinion was signed during the 23rd hour and 59th 
minute of the Clinton Administration. I hope he will help us understand 
both the content and the timing of his January 19, 2001 opinion.
    I am also troubled by tiering a Settlement Agreement and Management 
Plan that was developed outside the normal NMFA and NEPA processes. I 
am concerned because it was not signed by all affected and interested 
parties to this dispute and legislation. I am told we will hear from 
several of those parties today and I look forward to hearing their 
testimony.
    I also wonder about doing away with the 4(d)(4) provision of the 
Wilderness Act in this area and if this will open a floodgate of other 
proposals from which to pick and choose which provisions of which laws 
to live by on other National Forests.
    Finally, I believe we must carefully consider the provision of this 
proposal that would convey a property right, compensable by the Federal 
Government, to the Pueblo of Sandia if some future Congress or 
Administration changes the management of this area.
    I do not want to foreclose any of these options, because a great 
many of my constituents in Alaska would have benefitted had the federal 
government been forced to deal with them. I particularly mindful of how 
Congress ignored the effect on local industries and people in 
restricting the use of the Tongass. We now have the curious situation 
that there is more firewood harvested in New York than all the 
harvesting on the Tongass.
    Many of the native villages and corporations would like to have a 
larger say in the absentee management of other federal lands in Alaska. 
So there is much fodder in this proposal and this may be a useful 
vehicle to improve the management situation in Alaska.
    Thank you Mr. Chairman. I look forward to the testimony.

    Chairman Inouye. Thank you very much.
    Mr. Chairman, it is all yours.
    Chairman Bingaman. Well, how far have you gotten here, Mr. 
Chairman?
    Chairman Inouye. Just the opening remarks.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Chairman Bingaman. I just parachuted in.
    Let me say a couple of things. First, thank you for 
agreeing to do the joint hearing with us. This is a very 
important issue in our State. I know we have various witnesses 
here from New Mexico and I very much appreciate them coming all 
this distance.
    I want to also quickly thank the Forest Service, employees 
of the Forest Service out in our State, for the hard work that 
they put into trying to move this process forward. I think 
probably others have commented on the fact that this is a very 
complicated set of issues and there is not an easy resolution 
to it. If there were, I am sure we would have found it long ago 
and put the issue to rest.
    I introduced S. 2018 hoping that we could find a 
legislative solution so that the litigation could stop. That 
was my hope. I do not know if that will be possible or not, but 
my thought was that I was taught when I was practicing law that 
sometimes a settlement is better than proceeding with more and 
more litigation all the time. It seemed to me that a lot of 
good work had gone into trying to come up with a settlement, 
not that all parties had agreed to it, but that a lot of good 
work had gone into that and we should take that and try to 
build on it, improve upon it, and get as many people to sign 
onto it as possible.
    So that was the effort behind this legislation. I hope that 
that is the effect it has. I think we all are well aware of the 
Senate schedule and the schedule of the Congress. We are 
hurtling through this second year of this session or this 
Congress, and if we are not able to get agreement on something 
to move ahead here in the near future it is going to be 
impossible to get anything enacted through the House and Senate 
before the Congress adjourns this fall.
    I believe in November it would be expected at that point 
that litigation would commence again if nothing has been done 
by the Congress.
    I also should thank Solicitor Myers for going to New Mexico 
as he did this last week. I know he spent a couple days out 
there talking to the various parties. I very much appreciate 
all the effort he has put into it. My own staff has worked hard 
on the issue as well and I appreciate that very much.
    So thank you and I will sit and listen to some of the 
testimony. Thank you.
    [The prepared statement of Senator Bingaman follows:]
        Prepared Statement of Hon. Jeff Bingaman, U.S. Senator 
                            From New Mexico
    We are here today to receive testimony on a bill I recently 
introduced, S. 2018--the T'uf Shur Bien Preservation Trust Area Act.
    I would like to welcome the witnesses from New Mexico who have 
traveled a long way to be here today: Governor Paisano; Bernalillo 
County Commissioner Cummins; Edward Sullivan; Guy Riordan; Walter 
Stern; Anita Miller; and Dr. Stanley Hordes.
    Let me take a moment to thank employees of the Forest Service, 
particularly those working in New Mexico. I think the Forest Service 
has worked hard to help this process move forward. They have been 
accommodating to a great many different points of view. I also would 
like to thank Solicitor Myers for visiting the area last week and 
taking the time to meet with several of my constituents who are 
involved in this matter.
    To state the obvious, this is a very complicated situation. The 
matter has been litigated for a number of years and I assume that if 
Congress does not act during this session, it will continue to be 
litigated for the foreseeable future.
    I introduced S. 2018 and scheduled this hearing in order to seek a 
solution acceptable to the parties rather than one imposed by the 
courts. Here, all parties have the same overall objective--namely, to 
preserve the land at issue in an undeveloped state and continue public 
access in perpetuity. Therefore, it certainly seems possible that a 
solution should be within reach.
    However, I believe we all need to be realistic as to what may or 
may not be possible prior to the expiration date of the Settlement 
Agreement. Given that very few days remain in this Session of Congress, 
it will be challenging enough to enact a bill that all parties and the 
delegation support. Opposition will make enactment impossible.
    S. 2018 relies on a settlement as the basis for resolving the 
Pueblo's land claim. I believe this is not only the appropriate way to 
resolve this matter, but also the only realistic way by which it will 
be resolved. I recognize, though, that concerns about the settlement 
were expressed by parties who did not participate in the final stages 
of the negotiations. I worked with those parties to address their 
concerns while still maintaining the benefits secured by the parties in 
the Settlement Agreement.
    I know that some are interested in pursuing new approaches for 
resolving this claim. It seems to me, however, that any significant new 
approach will be difficult to assemble with requisite support during 
the time that remains this Session. Thus, I hope that those suggesting 
alternative approaches will be able to provide realistic proposals for 
resolving the claim. I am open to changes to the bill so long as they 
are widely supported and help bring this matter to a close.
    I look forward to all of the witnesses' testimony and hope that 
through an active dialogue, we can help alleviate any remaining 
concerns with the general approach taken in the settlement and S. 2018.

    Chairman Inouye. Do you want to take over?
    Chairman Bingaman. Why don't you go ahead, Mr. Chairman. 
You are doing such a good job.
    Chairman Inouye. Well, we are honored to have with us the 
Solicitor of the Department of the Interior, the Honorable 
William Myers III.
    Mr. Solicitor.

         STATEMENT OF WILLIAM G. MYERS III, SOLICITOR, 
                   DEPARTMENT OF THE INTERIOR

    Mr. Myers. Thank you, Mr. Chairman and Mr. Chairman. It is 
a pleasure to be here before the committees today to testify on 
S. 2018. I will make a few remarks. I ask that my full 
statement be entered into the record.
    Chairman Inouye. Without objection, so ordered.
    Mr. Myers. I will be very quick so that you can hear from 
my colleagues at the table and ask us any questions you might 
have. But as has been noted, S. 2018 would implement with some 
modifications the agreement of compromise and settlement that 
was signed by the Pueblo, the Sandia Peak Tram Company, and the 
United States on behalf of the Departments of Justice, 
Agriculture, and Interior.
    The bill and the land dispute both affect approximately 
10,000 acres of the Cibola National Forest. The administration 
supports a legislative solution and is willing to work with the 
New Mexico delegation and members of the committee to that end.
    I say in my testimony that I did, as Chairman Bingaman 
mentioned, have the opportunity to travel to the site last week 
after doing some of my homework at my desk on this issue. I do 
not pretend to suggest that I know all there is to know about 
this. I am learning a great deal even today.
    But I did go out. I talked to various interested parties in 
my office in Albuquerque. That included the Forest Service, the 
tram company, the city of Albuquerque, Bernalillo County 
council members, the Sandia Mountain Coalition, members of the 
Sandia Heights Home Owners Association, and of course the 
Pueblo of Sandia itself.
    I also took the opportunity to go by myself up to the 
Pueblo and walk the Pueblo, get a view of the crest and of the 
western slopes ahead of the crest, and also to go into some of 
the subdivisions that are, as depicted on the diorama that you 
have, hidden between what is the current boundary of the Pueblo 
and the crest of the Sandia Mountain. I did that because I 
wanted to see it for myself, to see what perhaps Mr. Clements 
the surveyor saw many, many decades ago, and to get a sense of 
the landscape and of the issues. It was a very educational 
process for me.
    Out of that I came away with a distinct impression that all 
of the parties are tired of litigation, either because of the 
time or the expense or both, that they would like to resolve 
this problem and go about living on and enjoying the land that 
we are discussing, and that they have little confidence, I 
suppose I should say, in the administrative process, and I 
expect that is a result of the fact that there was an opinion 
by one of my predecessors, Solicitor Tarr, in 1988; there was a 
second opinion by another predecessor, Solicitor Leshy. Those 
two opinions did not, obviously, agree, and now I hold the 
office and if I am called upon to make an opinion I suspect I 
will have a third opinion that will fall somewhere in the 
parameters of those two, but will not be the same as either of 
them.
    So the parties are wary of the administrative process. They 
have already spent time and money in the judicial process. That 
leaves one branch of government, which of course is yours. So 
it makes sense that we are here today to discuss with you and 
for you to hear from other interested parties the issues that 
revolve around these matters.
    I think I will simply stop there. My testimony provides 
some specific instances in which I think the legislation could 
be changed to clarify comments that I heard while I was in New 
Mexico and points that I came up with in my own review of the 
legislation as to where changes could be made. I will let those 
comments stand and speak for themselves. They are in the record 
now.
    I think, Mr. Chairman, with your indulgence, I will stop 
here and you may hear from my colleagues, or if you would like 
you could ask me questions.
    [The prepared statement of Mr. Myers follows:]
        Prepared Statement of William G. Myers III, Solicitor, 
                       Department of the Interior
                              introduction
    Mr. Chairman and members of the Committees, I appreciate the 
opportunity to be here today. I am William G. Myers III, Solicitor for 
the Department of the Interior. It is my pleasure to be here today to 
testify on behalf of the Department on S. 2018, a bill to create the 
T'uf Shur Bien Preservation Trust Area (``Area'') within the Cibola 
National Forest. S. 2018 would implement, with some modifications, the 
Agreement of Compromise and Settlement signed by the Pueblo of Sandia 
(``Pueblo''), the Sandia Peak Tram Company, and the United States on 
behalf of the Departments of Agriculture, Justice, and the Interior on 
April 4, 2000. The questions of ownership and use of approximately 
10,000 acres in the Cibola National Forest have been the subject of 
debate for nearly 20 years in both the judicial and executive branches 
of government and among the affected parties. The Administration 
supports a legislative solution and is willing to work with the New 
Mexico delegation and members of the Committees to that end.
    I have reviewed relevant portions of the record in both the 
Executive Branch and the Judicial Branch. I have recently taken the 
opportunity to look at the Area from both the ground and in the air and 
I have talked to representatives of the parties most affected by the 
legislative proposal. I quickly concluded what is perhaps obvious to 
the Committees; all sides are tired of litigating this matter and the 
non-federal parties are concerned about the uncertainty of the 
administrative process should the settlement agreement lapse in 
November 2002. I found broad support for a legislative solution. The 
following comments are offered in a spirit of reasonable compromise 
toward finality of the dispute.
                               background
    The Pueblo of Sandia claims the western face of Sandia Mountain, 
which is part of the Sandia Mountain Wilderness to the northeast from 
Albuquerque, New Mexico. The Pueblo of Sandia's claim is based on a 
1748 land grant from Spain to the Pueblo and an 1858 Act of Congress 
that confirmed the grant. The 1858 Act directed that a survey of the 
grant be made and a patent issued to the Pueblo. The survey was 
conducted in 1859 and a patent was issued in 1864. The Pueblo claims 
that approximately 10,000 acres were mistakenly excluded from the grant 
due to a survey error. This area is now part of the Cibola National 
Forest and the Sandia Mountain Wilderness and extends generally from 
the foothills to the crest of the main ridge of the Sandia Mountains.
    In 1983, the Pueblo first approached the Department requesting a 
resurvey of their Spanish land grant and the issuance of a new patent 
claiming the eastern boundary of the grant had been incorrectly 
surveyed in 1859. In 1988, Solicitor Ralph Tarr issued an Opinion which 
found that no resurvey was warranted.
    In 1994, the Pueblo sued the Department of the Interior and the 
Department of Agriculture, claiming that the Department of the 
Interior's refusal to resurvey the grant was arbitrary and capricious. 
The United States District Court for the District of Columbia vacated 
the Tarr Opinion and remanded the issue to the Department in 1998. An 
appeal was filed, but proceedings were stayed for over a year pending 
mediation efforts among the Pueblo, the Sandia Peak Tram Company, the 
United States, the City of Albuquerque, the County of Bernalillo, and 
the Sandia Mountain Coalition. These mediation efforts resulted in the 
April 2000 Agreement of Compromise and Settlement, which was signed by 
the Pueblo, the Sandia Peak Tram Company, and the United States 
(represented by the Departments of Agriculture, Interior, and Justice). 
In November 2000 the Court of Appeals of the District of Columbia 
dismissed the appeal on the grounds that it lacked jurisdiction because 
the District Court's decision was not a final decision.
    On January 19, 2001, Solicitor John Leshy issued a new opinion 
which concluded that the 1859 survey of the Pueblo of Sandia's grant 
was erroneous. Mr. Leshy determined that a resurvey was warranted, but 
recommended that the Department conduct a resurvey of the grant only if 
the April 2000 Agreement of Compromise and Settlement was not ratified 
by Congress. The Agreement binds the parties until November 15, 2002, 
and will become permanent only through the enactment of legislation.
                                s. 2018
    Pursuant to the terms of S. 2018, Congress would authorize the 
establishment of the Area within the Cibola National Forest and the 
Sandia Mountain Wilderness. Title to the Area would remain in the 
United States while granting unrestricted access to the Area to the 
members of the Pueblo or the members of any other federally recognized 
Indian tribe authorized by the Pueblo to enter the Area for traditional 
and cultural uses. In addition, the Sandia Mountain Wilderness would be 
preserved in perpetuity as part of the Cibola National Forest and 
continue to be administered by the Secretary of Agriculture though the 
Forest Service. Gaming, mineral, or timber production in the Area would 
be prohibited under the bill.
    Under S. 2018, the Pueblo, as well as Bernalillo and Sandoval 
Counties, would have the right to give consent or withhold consent to 
new uses of the Area. The Pueblo would also be given the right to 
consultation regarding modified uses and would have exclusive authority 
to administer access to the Area for traditional and cultural uses by 
its members or the members of any other federally recognized Indian 
tribe.
    The legislation would also extinguish the Pueblo's claim of title 
to the Area and would therefore clear the titles of private landowners 
in the Area. S. 2018 would grant the Pueblo the right to compensation, 
as if it were an owner in fee, if a subsequent act of Congress were to 
diminish the wilderness and National Forest character of the Area.
    S. 2018 grants irrevocable rights of way in perpetuity to the 
County of Bernalillo for roads in the Sandia Heights South Subdivision 
and Juan Tabo Canyon and the Crest Spur Trail (which crosses the La Luz 
tract). Modification or expansion of the rights of way for those roads 
would be subject to the Pueblo's written consent. The Secretary of the 
Interior would be required to grant irrevocable rights of way in 
perpetuity across Pueblo lands in existing utility corridors for 
utilities providing services to the private landowners in the 
subdivisions on Sandia Mountain.
    The aerial tramway, along with the crest facilities on Sandia 
Mountain, are excluded from the Area under the bill. Thus, the Pueblo 
would not have any civil, criminal, or administrative jurisdiction over 
the Area. However, the La Luz tract, which is owned by the Pueblo, 
would be transferred to the United States and held in trust for the 
Pueblo, subject to all limitations on use pertaining to the Area.
    The bill would not provide for the United States to take into trust 
the property owned by the Pueblo in the Evergreen Hills subdivision, 
but instead directs the Secretary of Agriculture to convey NFS land 
within the subdivision to the Pueblo.
                               conclusion
    The United States, including the Department of the Interior, is 
bound by the existing Settlement Agreement until November 2002. It is 
the Department's view that the best way, and possibly the only way, to 
resolve this longstanding dispute is through legislation. To that end, 
I have attached some detailed comments to my testimony.
    The Department looks forward to working with you, Mr. Chairman, the 
New Mexico delegation, and the other members of the Committees on this 
legislation. This concludes my testimony. I would be happy to answer 
any questions the Committees may have.
                               Attachment
    In addition to our testimony, we are providing the following 
detailed comments:
Section 4(c)(3)
    Bernalillo and Sandoval Counties are provided the right to consent 
or withhold consent to new uses in the Area. This provision parallels 
the right given to the Pueblo in Section 5(a)(3)(i). The Administration 
supports local governmental involvement in federal land management 
decisions. It is not clear, however, that either of the two counties 
would exercise this authority if given to them. If the authority to 
veto new uses remains in the bill, those uses should be defined with 
particularity in the legislation so that both the federal agency and 
the party exercising the right have some direction from Congress as to 
what is intended. A definition of new uses is contained in the 
Management Plan which is an attachment to the Settlement Agreement, and 
this would be a good place to start.
Section 12
    The confusion and concern arising out of the lack of a definition 
of new uses, as discussed above, illustrate the concerns generally with 
Section 12. That section ratifies and confirms the Settlement Agreement 
and Management Plan. The Administration believes that it would be 
better to legislate all necessary provisions of the Settlement 
Agreement and the Management Plan and forego incorporating these 
documents by reference. Otherwise, the potential for protracted 
litigation could arise after good-faith efforts to reconcile the law, 
the Agreement, and the Plan fail.
Section 4(g)
    The last sentence of this section could be clarified if rewritten 
to read, ``Establishment of the Area does not in any way modify the 
existing boundary of the Pueblo grant as depicted on the map defined at 
Section 3(g).'' This will eliminate any confusion as to the definition 
of the ``boundary'' which has been at the heart of the dispute for 
nearly twenty years.
Section 7(b)(3)(B)
    This section is one of several sections that uses the phrase 
``traditional and cultural.'' Further definition of this phrase would 
be useful.
Section 14(d)
    The first sentence regarding land acquisition is ambiguous because 
it could be read to encompass, for example, the La Luz tract, as ``any 
other privately held lands within the Area.'' Under Section 8(e), the 
La Luz tract cannot be acquired by the Secretary of Agriculture because 
this tract is transferred to the United States to be held in trust for 
the Pueblo and to be administered by the Secretary of the Interior.
Other Comments
    The Committee should consider a new section that would state that, 
except as provided by Section 5(c)(1), nothing shall be construed in 
this Act as a legislative exercise of the power of eminent domain.
    Some parties have indicated that use of the term ``Trust'' in the 
title of the bill raises the question of whether the entire Area is to 
be held in trust by the United States, similar to the La Luz tract in 
Section 8(e). This clearly is not the intent, as explained in the 
Chairman's remarks at page S1940 of the March 14, 2002, Congressional 
Record. However, to address any concerns in this regard, either 
``Trust'' should be removed from the title and similar references in 
the bill or the Chairman's explanation should be incorporated into the 
bill.

    Chairman Inouye. Thank you very much, Mr. Solicitor.
    Now we are pleased to have the Honorable Tom Sansonetti, 
the Assistant Attorney General.
    Mr. Sansonetti.

 STATEMENT OF THOMAS L. SANSONETTI, ASSISTANT ATTORNEY GENERAL 
  FOR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE

    Mr. Sansonetti. Mr. Chairman, other members of the 
committees: Thank you for the invitation today. I think I too 
will just simply ask that my entire statement as submitted to 
the committee be entered into the record.
    Chairman Inouye. Without objection, it is be so ordered.
    Mr. Sansonetti. I think I want to go ahead and just focus 
my comments here on the involvement of the Department of 
Justice in the process to date. The Pueblo first contacted the 
Department of the Interior in 1983, contending that the 1859 
survey had mistakenly set the wrong boundary, excluding about 
10,000 acres, and that the 1864 patent was therefore erroneous. 
The Pueblo requested a resurvey of their land grant and the 
issuance of a new patent designating the true eastern boundary 
as the crest of the mountain.
    In December 1988, the Department of the Interior Solicitor 
Ralph Tarr issued an opinion, in which Secretary Donald Hodel 
concurred, denying the Pueblo's claim that the eastern boundary 
of the grant should be resurveyed and located along the crest 
of the Sandia Mountain. It was at that time the Department of 
Justice got involved because in 1994 the Pueblo filed an action 
against the Secretaries of the Interior and Agriculture in the 
U.S. District Court for the District of Columbia. The Pueblo 
sought an injunction requiring the Department of the Interior 
to correct the allegedly erroneous boundary. Of course, the 
Department of Justice defended the Secretaries of the Interior 
and Agriculture.
    I will not go through all the details of the litigation. 
They are discussed in my written testimony. But I will note 
that, in addition to the United States and the Pueblo, other 
parties to the litigation included an association of land 
owners living in subdivisions within the boundaries of the 
national forest, and the county of Bernalillo, the city of 
Albuquerque, and Sandia Peak Tram Company were also involved as 
amicus curiae.
    In 1998, the parties in the case decided to try to resolve 
it without further litigation. Negotiations ensued and 2 years 
ago, April 2000, a settlement agreement was signed by the 
predecessors of the three individuals that are here today: the 
Assistant Attorney General at Justice, the Solicitor at 
Interior, and the General Counsel at the Department of 
Agriculture. It was also entered into by the Pueblo of Sandia 
and the Sandia Peak Tram Company. The other parties did not 
sign the settlement agreement.
    Now, this agreement, the settlement agreement, would settle 
the Pueblo's land claim suit upon ratification by an act of 
Congress. The settlement addresses many other important issues 
pertaining to the management of relevant portions of the Cibola 
National Forest, as well as questions of access across Pueblo 
lands to privately owned areas in the vicinity of the claim 
area itself.
    So at the present time the Department of Justice is on the 
sideline. There is no litigation ongoing. The appeals taken 
from the adverse district court action to the Circuit Court of 
Appeals were eventually dismissed. The settlement agreement is 
now in place, and obviously if S. 2018 becomes law then that 
would settle the claims of the Pueblo.
    If not, and I believe the date is November 15, 2002, that 
the settlement agreement by its own terms expires, then the 
settlement agreement goes poof into thin air and the action 
goes back to the Department of the Interior, at which point the 
question as to the resurvey of the boundary would have to be 
undertaken.
    That is the role of the Department of Justice as it is 
maintained at this time. I look forward to any questions that 
you may have.
    [The prepared statement of Mr. Sansonetti follows:]
Prepared Statement of Thomas Sansonetti, Assistant Attorney General for 
        Environment and Natural Resources, Department of Justice
    Mr. Chairman and members of the Committee, I am Tom Sansonetti, 
Assistant Attorney General for the Environment and Natural Resources 
Division of the Department of Justice. Thank for you for the 
opportunity to testify before you today on S. 2018, Senator Bingaman's 
bill that would create the T'uf Shur Bien Preservation Trust Area 
within the Cibola National Forest and attempt to effectuate the 
settlement agreement entered into by the Pueblo of Sandia, the United 
States, and the Sandia Peak Tram Company on April 4, 2000. This matter 
is of great importance to the Pueblo of Sandia, the people of the State 
of New Mexico, and the federal government. In my testimony today, I 
would like to give you some background on the history of the Pueblo's 
land claim and briefly discuss the settlement agreement.
                               background
    The underlying dispute giving rise to the settlement agreement and 
S. 2018 addresses the Pueblo's claim to a 10,000 acre tract of land, 
now administered by the U.S. Forest Service as part of the Sandia 
Mountain Wilderness and Cibola National Forest. The Pueblo believes 
this tract of land was erroneously excluded from the government's 
recognition of the Pueblo's ancient Spanish land grant due to an 
inaccurate survey conducted by the Department of the Interior in 1859.
    The Pueblo is located on the east side of the Rio Grande north of 
Albuquerque, New Mexico. In 1748, the Spanish colonial government 
granted a parcel of land to the Pueblo. An 1858 Act of Congress 
confirmed the grant and directed the Commissioner of the Land Office to 
conduct a survey to designate the exact boundaries of the parcel. An 
1859 survey of the Pueblo Grant, known as the Clements survey, showed 
the eastern boundary along the top of a foothill on the western slope 
of Sandia Mountain, rather than on the crest of the mountain. In l864, 
President Abraham Lincoln issued a patent to the Pueblo which adopted 
the metes-and-bounds description of the 1859 survey.
    The Pueblo first contacted the Department of the Interior in 1983, 
contending that the 1859 survey had mistakenly set the wrong boundary, 
excluding about 10,000 acres, and that the 1864 patent was therefore 
erroneous. The Pueblo requested a resurvey of their land grant and the 
issuance of a new patent designating the true eastern boundary as the 
crest of the mountain. In December 1988, the Department of the Interior 
Solicitor Ralph Tarr issued an Opinion, in which Secretary Donald Hodel 
concurred, denying the Pueblo's claim that the eastern boundary of the 
grant should be resurveyed and located along the crest of the Sandia 
Mountain.
    In 1994, the Pueblo filed an action against the Secretaries of the 
Interior and Agriculture in the U.S. District Court for the District of 
Columbia. The Pueblo sought an injunction requiring the Department of 
the Interior to correct the allegedly erroneous boundary.
    In January 1995, several individual landowners and the Sandia 
Mountain Coalition, an unincorporated association of landowners living 
in subdivisions within the boundaries of the National Forest, moved for 
and were granted status as intervenor-defendants in the case. Two 
months later, the Pueblo amended its complaint to expressly disclaim 
any right, title, or interest in land held in private ownership within 
the disputed tract. The County of Bernalillo was also granted 
intervenor-defendant status, and the City of Albuquerque and the Sandia 
Peak Tram Company became involved as amicus curiae.
    In July 1998, the district court issued an Opinion and Order 
setting aside the Tarr Opinion and remanding the matter to the 
Department of the Interior for further proceedings. The court found 
that the Department's decision not to resurvey the grant boundary was 
arbitrary and capricious because it accorded insufficient weight to the 
canon of construction that ambiguities should be construed in favor of 
Indians and because it over-emphasized the presumption of survey 
regularity.
    Thereafter, in August and September 1998, the United States and the 
intervenor-defendants filed notices of appeal from the district court's 
decision with the D.C. Circuit. However, after the appeals were filed, 
all of the parties involved in the litigation decided to engage in a 
cooperative effort to resolve the case without further litigation. In 
October 1998, the D.C. Circuit granted a motion to hold the appeals in 
abeyance pending these settlement negotiations.
    Negotiations began in earnest in December 1998, when the federal 
agencies, and the Pueblo, County, Coalition, City, and Tram 
representatives inaugurated a formal mediation process with the 
assistance of a third-party mediator in New Mexico. Despite progress 
being made by the named parties in the lawsuit over the course of 
several months, in August 1999 the intervenor-defendants and the City 
of Albuquerque withdrew from the mediation process. Nonetheless, the 
named parties in the litigation--the Pueblo and the federal agencies--
along with the Tram Company, continued the negotiation process which 
eventually produced a settlement agreement signed by the parties on 
April 4, 2000. In November of that year, the appeal was dismissed by 
the U.S. Court of Appeals for the District of Columbia Circuit for lack 
of appellate jurisdiction. This decision granted a conditional motion 
by the United States to dismiss its appeal, contingent upon the D.C. 
Circuit actually ruling that jurisdiction would not exist over an 
appeal being pressed solely by the intervenor-defendants.
    Also in November 2000, the Pueblo renewed its petition to resurvey 
the boundary along the crest of the mountain, reiterating their lack of 
interest in the inholdings. In addition, the County of Bernalillo and 
the Sandia Mountain Coalition contended that the Clements survey was 
erroneous in that the top of the foothill on the western slope of 
Sandia Mountain created too large of an area for the Pueblo. In 
response to these requests, Interior Solicitor John Leshy conducted 
another review, and on January 19, 2001, issued a new opinion that 
reconsidered the Tarr Opinion's conclusion. Solicitor Leshy concluded 
that the evidence showed that the Clements survey of the eastern 
boundary of the Pueblo's land grant was erroneous and should be set 
aside and, if necessary, a resurvey should be conducted. The Opinion 
acknowledged the settlement of the Pueblo's claim, which would obviate 
the need for a resurvey, and put in abeyance any implementation of the 
Opinion unless and until the Congress failed to pass legislation 
ratifying the settlement by November 15, 2002.
                          settlement agreement
    The Agreement of Compromise and Settlement among the Pueblo of 
Sandia, the Sandia Peak Tram Company, and the United States on behalf 
of the Departments of the Interior and Agriculture, would settle the 
Pueblo's land claim suit upon ratification by an Act of Congress. The 
Settlement addresses many other important issues pertaining to the 
management of relevant portions of the Cibola National Forest, as well 
as questions of access across Pueblo lands to privately owned areas in 
the vicinity of the claim area.
    Some of the highlights of the settlement are as follows:
Creation of the T'uf Shur Bien Preservation Trust Area
   The claim area would be renamed the T'uf Shur Bien (a Tiwa 
        term meaning ``Green Reed Mountain'') Preservation Trust Area 
        and would remain part of the Sandia Mountain Wilderness and the 
        Cibola National Forest.
   The United States would retain title to the Area.
   The Area would be established for the following purposes: to 
        recognize and protect the Pueblo's rights and interests in and 
        to the Area; to preserve in perpetuity the wilderness and 
        National Forest character of the Area; and to respect and 
        assure the public's use and enjoyment of the Area.
Administration of the Area by the Forest Service
   The Secretary of Agriculture would continue to administer 
        the Area as wilderness and National Forest under the Wilderness 
        Act, most federal wildlife-protection laws (including the 
        Endangered Species Act), other laws applicable to the National 
        Forest System, and an Area-specific management plan.
   Statutes (including their associated regulations) 
        administered by the Forest Service, other than the Wilderness 
        Act and applicable federal wildlife protection laws, do not 
        apply to Pueblo traditional and cultural uses.
Pueblo Rights
   The Pueblo's right of access to the Area for traditional and 
        cultural uses, except for regulation by the Wilderness Act and 
        applicable federal wildlife protection laws, as described 
        above, would be compensable if violated.
   The Pueblo would have a compensable interest in the 
        perpetual preservation of the wilderness and National Forest 
        character of the Area. If Congress ever impaired this interest 
        by authorizing uses, such as commercial mineral or timber 
        production, that are banned from the Area by the ratifying 
        legislation, the Pueblo again would be compensated as though it 
        held a fee-title interest in the affected portion of the Area.
   The Pueblo would have specified, non-compensable rights to 
        participate in the management of the Area under the management 
        plan.
   The Pueblo would have exclusive authority to administer 
        access to the Area by other tribes for traditional and cultural 
        uses.
Rights of Way
   The private landowners, the general public, and the Forest 
        Service must cross Pueblo land to reach the subdivisions and 
        the claim area. As part of the settlement, the Pueblo would 
        grant perpetual rights of way to the County and the Forest 
        Service for roads, trails, and utilities across Pueblo lands 
        adjacent to the Area.
Jurisdiction
   The ratifying legislation would provide a scheme for the 
        exercise of governmental jurisdiction over the Area, 
        recognizing roles for the United States, the State of New 
        Mexico, and the Pueblo.
Extinguishment of Claims
   The settlement would provide for the comprehensive and 
        permanent extinguishment of the Pueblo's claims to: (a) lands 
        within the Area; (b) the subdivisions and other privately owned 
        tracts; (c) the lands described in the Tram's special use 
        permit; and (d) all crest facilities and developments such as 
        the electronic site. The ratifying legislation would clear all 
        titles, both of the United States and the homeowners.
Withdrawal Option
   The settlement provides that either the Pueblo or the United 
        States may withdraw from the Settlement Agreement if either 
        House of Congress passes ratifying legislation that is deemed 
        inconsistent with the terms of the Settlement Agreement in a 
        manner that materially prejudices their individual interests.
                               conclusion
    The parties in this matter expended a great deal of time and effort 
to reach agreement and to produce a document which resolves many 
complex issues. The Administration supports a legislative solution and 
is willing to work with the New Mexico delegation and the members of 
the Committees to achieve that end.
    This concludes my testimony. Mr. Chairman, I look forward to 
working with you and other members of the Committees on this 
legislation and would be pleased to answer any questions you may have.

    Chairman Inouye. I thank you very much, Mr. Sansonetti.
    Now may I please call upon the General Counsel of the 
Department of Agriculture, the Honorable Nancy Bryson.

          STATEMENT OF NANCY BRYSON, GENERAL COUNSEL, 
                   DEPARTMENT OF AGRICULTURE

    Ms. Bryson. Thank you, Mr. Chairman. Thank you for the 
opportunity to testify today on S. 2018. This bill, as we have 
heard, proposes to resolve the longstanding land title dispute 
of the Pueblo of Sandia with the Federal Government concerning 
rights arising under a 1748 land grant from the King of Spain, 
subsequently recognized by Congress.
    The administration supports the legislative solution and is 
willing to work with the New Mexico delegation and members of 
the committee to achieve that end. I have submitted a statement 
and I would request that it be incorporated in the record.
    Chairman Inouye. Without objection.
    Ms. Bryson. Briefly, our position at USDA is that with some 
modifications S. 2018 essentially implements the 2000 
settlement agreement. We have noted in your testimony several 
areas where we think it goes beyond the settlement agreement, 
where the provisions of the bill are unclear to us, or where S. 
2018 could improve on the efforts made to date.
    For purposes here, I will just note the three areas in the 
bill which we think go beyond the settlement agreement. First, 
there is a provision for a mandated land exchange within a 
certain time. The settlement agreement doesn't include such a 
provision and we do not think one is necessary because there 
are existing land exchange mechanisms which can be used.
    Second, the bill adds management rights for Sandoval and 
Bernalillo Counties. We do not disagree with this. The 
Department of Agriculture strongly supports involving tribal, 
State, and local governments in land management decisions that 
affect them. However, we think if this change is in the final 
legislation there will be some changes that are necessary in 
the management plan and the settlement agreement.
    In addition, the bill requires the Department to do a 
survey of the boundary area within 12 months. This is a new 
responsibility. It creates significant issues for the 
Department and we would like to work with the committee on 
those.
    I would just like to repeat in closing that the Department 
of Agriculture would very much like to work with the committee 
to finally resolve this matter. We would like to find a 
resolution that addresses the identified concerns, maintains 
the character and beauty of the Sandia Mountain wilderness, and 
protects and preserves the cultural and religious values of the 
area.
    That concludes my statement. I would be happy to answer any 
questions.
    [The prepared statement of Ms. Bryson follows:]
         Prepared Statement of Nancy Bryson, General Counsel, 
                       Department of Agriculture
    Mr. Chairman and members of the committees: My name is Nancy 
Bryson, General Counsel, Department of Agriculture. Thank you for the 
opportunity to testify today on S. 2018, the ``T'uf Shur Bien 
Preservation Trust Area Act.'' This bill proposes to resolve the 
longstanding land title dispute of the Pueblo of Sandia with the 
Federal Government concerning rights arising under a 1748 land grant 
from the King of Spain and subsequently recognized by Congress. The 
Administration supports a legislative solution and is willing to work 
with the New Mexico delegation, and Members of the Committees to 
achieve that end.
    The T'uf Shur Bien Preservation Trust Area, as designated by S. 
2018, would consist of approximately 10,000 acres within the Cibola 
National Forest. Located a few miles northeast of Albuquerque, the 
claim area lies within both Bernalillo and Sandoval Counties. Much of 
the claim area also is within the Sandia Mountain Wilderness designated 
by the Congress in the Endangered American Wilderness Act of 1978 (P.L. 
95-237). The area is one of natural beauty and solitude, and provides 
significant opportunities for public recreation. It also is an area of 
religious and cultural significance for Native Americans and others.
    This title dispute has been ongoing for almost two decades during 
which time there have been opinions regarding title to the land by the 
General Counsel of the Department of Agriculture and the Solicitor of 
the Department of the Interior, as well as litigation in U.S. District 
Court. A decision remanding the matter to the Department of the 
Interior was appealed to the D.C. Circuit by the government on 
jurisdictional grounds.
    Between 1998 and 2000, while the case was pending in the D.C. 
Circuit, a mediated effort to settle the Sandia land claim was 
undertaken among all parties to the litigation including the Pueblo, 
the Federal Government, a coalition of private landowners and 
recreation groups, the Sandia Peak Tram Company, Bernalillo County and 
the City of Albuquerque. All the parties worked hard in a good faith 
effort to resolve this matter, and we commend those efforts. 
Ultimately, a Settlement Agreement was reached in April 2000, but only 
among the Pueblo, the Sandia Peak Tram Company and the Federal 
Government. The City, the County, and the coalition had withdrawn from 
the negotiations.
    With some modifications, S. 2018 essentially implements the 2000 
Settlement Agreement. I will concentrate my remarks primarily in those 
areas where S. 2018 goes beyond the Settlement Agreement, where the 
provisions of the bill are unclear to us, or where S. 2018 can improve 
on the efforts made to date to resolve this dispute.
    We see at least three areas in which the bill goes beyond the 
settlement based on our review to date. First, there is a provision for 
a mandated land exchange within a certain time. The Settlement 
Agreement does not include such a provision and we do not think one is 
appropriate as existing land exchange mechanisms are available. Second, 
the bill adds management rights for Sandoval and Bernalillo Counties. 
We do not disagree with this. The Department of Agriculture strongly 
supports involving tribal, state, and local governments in land 
management decisions that affect them. However, we think the change 
does require an expansion of both the Settlement Agreement and the 
Management Plan.
    In addition, the bill requires the Department to do a survey of the 
boundary area within 12 months. This new responsibility creates 
significant issues for the Department on which we would like to work 
with the Committee.
    Our second comment is that it would be very helpful to have the 
legislative language expressly incorporate the Settlement Agreement and 
Management Plan rather than by reference. Although the United States 
generally supports incorporation of such settlements by reference, such 
incorporation creates the potential for conflict in this case where the 
language of the bill and the Settlement Agreement and Management Plan 
conflict. For example, the bill provides that the area will be managed 
under laws and regulations applicable to the National Forest System. 
These include the National Forest Management Act. The Settlement 
Agreement, however, specifically exempts the T'uf Shur Bien 
Preservation Trust area from the National Forest Management Act. This 
area will not be subject to NFMA, but rather to the procedural and 
substantive requirements established in the Settlement Agreement and 
Management Plan. The legislation needs to set forth these provisions 
very clearly, particularly given the potential for confusing, 
overlapping and sometimes conflicting management. The parties have all 
expressed their interest in limiting future litigation. We think the 
likelihood of this can be enhanced by resolving potential ambiguities 
in the legislation itself.
    Finally, we believe the language in section 10(c) of the bill, 
clarifying that this Act is uniquely suited to resolve the Pueblo's 
claim, is a crucial element of any legislative resolution. This 
agreement, however, should not be considered precedent for any other 
situation involving National Forest System lands.
    Although this bill, if enacted, will resolve this particular 
dispute, it is important to emphasize that all settlements of Indian 
claims, including settlements that involve federal lands, must be 
ratified by Congress [pursuant to 25 U.S. C. 177]. Should Congress 
decide to delegate settlement authority regarding such claims to 
administration officials, however, the land management agency with 
jurisdiction over the land should have primary authority in determining 
whether the agency's lands would be conveyed as part of the settlement. 
We believe that with respect to National Forest System lands, 
responsibility should reside in the Department of Agriculture.
    The Department of Agriculture would like to work with the Committee 
to finally resolve this matter. We would like to find a resolution that 
addresses the identified concerns, maintains the character and beauty 
of the Sandia Mountain Wilderness, and protects and preserves the 
cultural and religious values of the area.
    This concludes my statement. I would be happy to answer any 
questions.

    Chairman Inouye. Thank you very much, Ms. Bryson.
    May I begin the questions, if I may. For Solicitor Myers. 
In your view, does this bill create an undesirable precedent 
for the resolution of other Indian land claims or land 
management situations?
    Mr. Myers. Mr. Chairman, it creates a precedent in one 
sense, in that any time you take action you have created a 
precedent because it is something that has gone on before, by 
definition. That is a precedent. At the same time, this 
particular area and this particular dispute are unique as far 
as I can tell. In my brief time in my office, there is no other 
like it and I think if there were I would perhaps have heard 
about it.
    Because of the history of this dispute, going back, if you 
will, to 1748 and the grant from the King of Spain forward, 
because of the interplay of the parties to date, including of 
course the Pueblo, the citizens of the State, and the public at 
large that use the area, and the State and local jurisdictions 
that have overlapping jurisdiction in the area, because of the 
multiple uses that are there, and then overlay on top of that 
the wilderness area and the inholdings, you have quite a mix of 
cross currents.
    So to the extent that you legislate a fix to this and to 
the extent that that legislation is very specific--and I would 
encourage you to make it very specific--I think that the 
precedential value in a legal sense is reduced. I do appreciate 
those who are concerned about other pueblos or other tribes or 
other non-Indian parties attempting to change administrative 
boundaries to effect whatever purpose and goal they might have 
in mind, and I think that's a legitimate concern.
    But to put a point on it, to the extent that the Congress 
in detail specifies the land uses and management of this land I 
think that does limit the precedential value.
    Chairman Inouye. If I may ask Mr. Sansonetti. Although the 
Pueblo of Sandia did not bring any claim under the Indian 
Claims Commission Act, would this legislation reopen cases that 
were finally adjudicated under that statute?
    Mr. Sansonetti. I think not, in the sense that those Indian 
tribes that did appear in front of the ICCA received a final 
settlement. We have to remember that that commission was set up 
for tribes to appeal for a money award, not for the return of 
land. In this particular case, obviously the Pueblo are 
interested in the land as opposed to applying for a money 
award.
    I would think that the answer is no for those that have 
settled under the ICCA.
    Senator Domenici. Mr. Chairman, could I clarify that? Mr. 
Sansonetti, if you do not choose remuneration, but had a right 
to remuneration, do you still have a right to land?
    Mr. Sansonetti. That very question is before the Solicitor 
General's office and is being discussed within the Department 
of Justice. There has not been a final--there are those that 
feel, there are some that feel, that the ICCA was an 
opportunity between the years of 1946 and 1978 to make your 
claims if you felt that anything was out of sorts boundarywise 
and the like, and consequently that was your opportunity. If 
you missed that time, then you were out of luck.
    There are those that say, well, to the degree that you were 
looking for money that is true, but to the degree that you were 
looking for the return of dirt, that was not the purpose of the 
ICCA, that was the granting of money. So those that were 
looking for dirt still have an opportunity to file a claim.
    That particular issue is consequently one that would have 
to be resolved by Justice.
    Senator Domenici. Thank you, Mr. Chairman.
    Chairman Inouye. Thank you.
    If I may ask the General Counsel of the Department of 
Agriculture: The settlement agreement avoids conflict with an 
electronics site located on the top of Sandia Mountain because 
the Pueblo has agreed to disclaim any interest in this area. 
This site is the subject of 55 special use permits, including a 
permit to DOD for a critical communications site that serves 
the Kirkland Air Force Base.
    If this settlement agreement and management plan are not 
ratified by Congress, what effect could that have on this 
electronics site?
    Ms. Bryson. Our understanding is that the electronics site 
is outside of the claim area and therefore would not be 
affected one way or the other.
    Chairman Inouye. If the legislation passes and the 
management plan is ratified, why is it necessary to 
specifically exempt the T'uf Shur Bien Preservation Trust Area 
from the National Forest Management Act and other forest 
planning statutes and regulations?
    Ms. Bryson. I was not a party to the settlement. We may 
need to supplement the answer I am going to give you on that, 
Mr. Chairman. My understanding is that in the definition of the 
laws that apply, the agreement of the parties is that the 
National Forest Management Act would not apply because the 
management plan that was adopted pursuant to the settlement 
agreement differs in certain respects from the type of plan 
that would be developed under that statute.
    Chairman Inouye. Do you believe that this measure would 
create a dangerous precedent of any sort?
    Ms. Bryson. One of the points that we make in our full 
testimony is the importance to us of the provision in the bill 
which says this does not create a precedent for any other--for 
resolution of any other land disputes. We do believe this is 
unique and that the settlement agreement that was crafted 
pertains to this site and this site alone.
    Chairman Inouye. Thank you very much.
    Senator Bingaman.
    Chairman Bingaman. Thank you.
    Let me just ask one question here. It is my understanding 
the U.S. Forest Service has entered into several arrangements 
with Indian tribes concerning the management of national forest 
lands, particularly in situations in which the lands contain 
Native American sacred sites. Among those I am aware of, there 
are agreements with the Grand Ronde Tribe in Oregon, the Washoe 
Tribe in Nevada, the Hamas Pueblo in New Mexico under the act 
creating the Hamas National Recreation Area.
    Isn't the management role provided to Sandia Pueblo under 
this proposed legislation just an extension of existing 
practice? I do not know which of you would want to comment on 
that. I guess, Ms. Bryson, maybe you are the right one to 
comment.
    Ms. Bryson. I may be, and with your permission could we 
respond to that question in writing?
    Chairman Bingaman. That would be fine.
    Ms. Bryson. We are not prepared right now.
    Chairman Bingaman. Okay.
    Let me stop with that, Mr. Chairman. I know there are other 
Senators here wishing to ask questions.
    Chairman Inouye. Senator Campbell.
    Senator Campbell. Thank you, Mr. Chairman.
    I am not an attorney, but I want to do the right thing. But 
I see some similarities in other areas. As I understand it, 
this bill is unique, unique circumstances. Is it your opinion, 
anybody on the panel there, that S. 2018, this is the first one 
of its kind, the first bill that reaches a settlement?
    Mr. Myers.
    Mr. Myers. Senator Campbell, only to the extent that I 
previously mentioned that I know of no other pending dispute 
within the Department of the Interior, even historically, that 
is exactly on the four corners of this dispute. So as far as I 
know it is the only one like it.
    Senator Campbell. I see. Well, most people I think believe 
in negotiated settlements. It is pretty hard to turn the clock 
back, but most people also believe in negotiated settlements as 
long as they get the best of the bargaining. That just has to 
be human nature.
    Several Senators asked about if it sets a precedent. We 
could probably put language in the bill that says that it does 
not, but I do not know if that limits a people's right in the 
future to go to court anyway. So I am not sure how good that 
is.
    But Senator Domenici brought up a couple of points and 
reminded me of the question we had some years ago about the 
return of the Black Hills to the Oglala. That Black Hills area 
was taken by force during World War Two and partly used for a 
bombing range. The courts have said that the Lakota have every 
right to get that land back and yet they do not have it 
because, even though they were offered a repayment for it, many 
of them refused the money, they refused the remuneration, as 
you remember if you followed that.
    So they refused the money, but they did not get the land 
back, either. I do not know if that has any bearing on this 
particular one, but I think we have dealt with some things that 
are very similar in the past.
    Just let me ask a couple of little simple ones here. Does 
the Federal Government have the authority to correct a survey 
error or a boundary error in the past along the Pueblo's 
eastern boundary? I do not know who the expert would be on 
that.
    Mr. Myers. The District Court in this case said that the 
Secretary of the Interior had the authority to correct the 
survey.
    Senator Campbell. But they did not go forward with that 
survey, is that correct?
    Mr. Myers. That is correct.
    Senator Campbell. Is there a plan, do you know of, to go 
forward with the survey?
    Mr. Myers. Right now the plan is to see what Congress does, 
Senator.
    Senator Campbell. We do not know what to do. That is what 
this bill is all about.
    Well, okay. Thank you, Mr. Chairman. I will save any 
further questions for the next round.
    Chairman Inouye. Senator Domenici.
    Senator Domenici. Thank you very much.
    Senator Bingaman, we are sorry that you are so busy on the 
floor. Are you going to have to go back before we finish?
    Chairman Bingaman. I think we are in recess until 4:15, so 
I am hoping that by then we have heard from a lot of the 
witnesses.
    Senator Domenici. We will be halfway there, maybe.
    Let me first state for the record, Senator Bingaman used 
the Hamas as an example. There is a very big difference, 
Senator. The Hamas has no veto power on the part of anyone. The 
Forest Service maintains the management prerogatives and they 
do it together. This has a veto in it, as you remember.
    But let me just talk about applicable laws. How does the 
criminal and civil jurisdiction given to the Pueblo under this 
legislation compare to that of tribal jurisdiction on their own 
Pueblo? Either one of you. I assume it is you, Mr. Myers.
    Mr. Myers. Senator, I am not confident in my answer to your 
question. I would have to respond to you, I think.
    Senator Domenici. Will you get us an answer?
    Mr. Myers. I would be happy to, yes, sir.
    Senator Domenici. Has it changed in any way because of this 
agreement or is it the same as they have on their own land?
    Mr. Myers. One of the areas that I noticed in my review of 
this is the cross-section between the tribe's jurisdiction and 
the hunting and trapping laws with the State of New Mexico. 
That is the area that I would focus on probably first in 
answering your question. But I would like to go back to my 
office and give you a full answer.
    Senator Domenici. We will not be finished anytime within 
the next 10 days or so. So you can get it done.
    Mr. Myers. All right.
    Senator Domenici. Let me ask you just two or three more 
questions. First, our Indian people who lay claim to this 
property talk about using it for religious and cultural 
affairs, which we respect, and we respect it even though it is 
obvious that overwhelmingly, nobody sees it or participates in 
it but the Indian people.
    There is a statute with reference to our public domain that 
gives the Indian people the right to conduct their religious 
and cultural activities on forest land. Are you familiar with 
that?
    Mr. Myers. Just generally, sir.
    Senator Domenici. I would like to know there also, if you 
will go back and check, we believe they do not need this 
settlement in this manner to have cultural and religious rights 
that are almost as exclusive as these, if not the same. I just 
would like to know that. If you would check that out, it would 
be appreciated.
    Mr. Myers. I will do that, and that ties into a comment 
that I made as an attachment to my written testimony, which is 
a suggestion that perhaps the phrase ``traditional and 
cultural'' as it is used in the bill in several sections be 
further defined, so that we better understand what Congress 
would mean by ``traditional and cultural uses'' in this 
legislation.
    Perhaps the answer to that is a cross-reference to the 
statutory provisions already provided by Congress.
    Senator Domenici. I would also like to propose, as I stated 
in my opening statement, some queries I had. I would like you 
to tell us whether NEPA has any application to this. Has there 
been or will there be any major Federal action as this moves 
through that would require a NEPA statement?
    Mr. Myers. We will also give you that answer.
    Senator Domenici. Will you check that one out for us?
    Mr. Myers. Yes, Senator.
    Senator Domenici. There is also in this proposed 
legislation, once the deal is made, no use changes are made 
unless they are agreed to by both parties. You have alluded to 
that.
    Mr. Myers. Yes, sir.
    Senator Domenici. That is a very big concession on the part 
of each. If the Indian people claim they own it, that is a big 
concession. If the Government owns it for the people, that is a 
big concession. As much as you can give us some background on 
that would be helpful and I would appreciate that.
    Lastly, last but not least, if you went up and saw this 
property you will note that there are trees and shrubs that are 
close to buildings and close to houses that are part of this 
acreage.
    Mr. Myers. Yes, sir.
    Senator Domenici. We are already living from day to day in 
New Mexico with reference to a drought that might bring forest 
fires to any part of our State. Forest plans have to be made, 
and in the last few years we have provided substantial 
resources for forest plans to be made by the appropriate 
entity, Ag or Interior.
    As part of producing that, plans are developed that have 
some kind of authority vested in them wherein houses and other 
things are preserved somewhat from the closeness, the proximity 
of rage, of the rage of fire. I am concerned that once this 
became law there would be no right to modify that kind of plan 
if either side decided that they were not as interested in fire 
burning something as the other side.
    I wonder how we would get those kind of plans done under 
this agreement if they were required to be done from time to 
time. I assume your answer is going to be what mine is: both 
sides will have to agree. If that is it, I would like to know 
that.
    Mr. Myers. If that constituted a new use under the 
definition of a new use in the bill, then yes, any party given 
veto authority would have to agree to a new use before that use 
actually was implemented on the ground.
    Senator Domenici. I have some others that I am going to 
submit to you, but in the interest of getting to our New 
Mexicans I am going to stop at this.
    Thank you, Mr. Chairman.
    Chairman Inouye. Thank you very much.
    Senator Craig.
    Senator Craig. Thank you, Mr. Chairman. I will be brief, a 
couple of questions here. There are many and I will submit them 
for the record for all three of you.
    Nancy, on pages 3 and 4 of your testimony you suggest a 
serious issue related to the Leshy opinion and its assumption 
that the Department of the Interior would be responsible for 
the resurvey. Would you explain exactly what those significant 
issues are in the eyes of the Department of Agriculture?
    Ms. Bryson. The responsibility to do the survey; the time 
frame, the 12 months, seems rather quick to us; and resources 
to do it.
    Senator Craig. Understanding the provisions in 10.C of the 
bill, that this is a unique situation and should not set 
legislative precedents, are there other situations that you 
know of or could imagine where you would support legislation 
that eliminates the underlying forest management or 
environmental laws needed to manage the lands entrusted to the 
Federal Government?
    Ms. Bryson. We think the settlement reached in this case is 
based on the facts that were presented in this case, the 
history that you have heard about, the desire of all the 
parties to avoid litigation. It is all those things combined 
that produced the settlement agreement that is being discussed 
here for incorporation into the bill.
    Senator Craig. My friend from Colorado asked a question of 
you, Bill, and I want to re-ask it, but add something to it as 
it relates to, do you know of any tribes that currently have 
proposals to have other different lands, national parks, or 
national forests returned to them or to be managed by them? I 
am referencing specifically Secretary Norton's recent 
announcement related to Klamath Tribe and the Winema National 
Forest in Oregon.
    Is there a relationship here? Is that in itself a 
precedent, or are we establishing now the right or what would 
appear to be at least the legitimacy of coming forward to claim 
additional lands?
    Mr. Myers. Well, as you know, Senator Craig, there are 
dozens upon dozens of federally recognized tribes, each with 
its own interest in its land base. Whether those specific 
examples that you have just cited might be watching this 
legislation with an eye toward duplicating it, I cannot say. I 
think it is worth looking into and we would be happy to do that 
and determine as best we can whether there is some precedent 
that might be established by this legislation that would impact 
the requests of those tribes that you referenced.
    Senator Craig. Mr. Chairman, thank you.
    Gentlemen, Nancy, thank you very much.
    Chairman Inouye. I would like to thank the panel very much. 
We appreciate it.
    Our next panel: The president of HMS Associates, 
Incorporated, a consulting firm in Santa Fe, New Mexico, Dr. 
Stanley M. Hordes; and from the University of California 
Hastings College of Law in San Francisco, Professor John Leshy.
    Dr. Hordes.

       STATEMENT OF STANLEY M. HORDES, Ph.D., PRESIDENT, 
                      HMS ASSOCIATES, INC.

    Dr. Hordes. Thank you. Mr. Chairman, members of the 
committee: My name is Stanley Hordes. I am an historical 
research consultant and former State Historian for the State of 
New Mexico. I hold a Ph.D. in colonial Mexican history from 
Tulane University and I have conducted research into the 
history of Mexico and the Spanish borderlands for over 27 
years. I have performed expert research and testimony in dozens 
of cases involving the history of land and water in the 
Southwest over the past 17 years. I also hold the position of 
adjunct research professor at the Latin American and Iberian 
Institute at the University of New Mexico.
    In 1995, I was asked by the U.S. Forest Service to conduct 
research into the history of the boundaries of the Pueblo of 
Sandia. I made it clear at the outset to the Forest Service 
that I did not view my role as adversarial, that I did not see 
my position as one of trying to find historical facts to 
support a particular position. The Forest Service not only 
agreed with this approach, but insisted upon it.
    On March 1, 1996, I submitted my report entitled ``History 
of the Boundaries of the Pueblo of Sandia, 1748 to 1860,'' 
which was based on research conducted in New Mexico, 
Washington, and Mexico City. I would like to request that a 
copy of this report as well as my resume be entered as part of 
the official record of the testimony.
    Chairman Inouye. Without objection.
    Dr. Hordes. On the basis of my research, I offer the 
following conclusions: One, in 1748 the Governor of New Mexico, 
in the name of the King of Spain, issued a grant of land to a 
mixed population of Hopi and Southern Tigua Indians. This land 
was located on the site of the old Pueblo of Sandia, which had 
been abandoned approximately 68 years earlier.
    Secondly, the Governor of New Mexico considered the newly 
constituted Pueblo of Sandia as a ``formal pueblo,'' ``pueblo 
formal,'' receiving, like other Indian pueblos in New Mexico, a 
grant of land comprising four square leagues or 2.6 miles 
measured from the center of the Pueblo in each of the cardinal 
directions.
    In the case of Sandia, due to the shortfall of land to the 
west, the Pueblo was compensated with additional lands to the 
north and to the south. The eastern boundary was not affected 
by this adjustment and thus extended only 2.6 miles, one 
league, toward the ``sierra madre,'' or mountain range, called 
Sandia, which served as a designated landmark on the east.
    Three, after the U.S. takeover of New Mexico in 1848 the 
U.S. Office of Surveyor General began the process of 
authenticating and surveying all land grants issued by Spanish 
and Mexican authorities. During the investigation into the 
boundaries of the Pueblo of Sandia, the official translator, 
David V. Whiting, engaged in an apparently deliberate 
mistranslation of the 1748 grant documents, mistranslating the 
term ``sierra madre'' and adding boundary calls that never 
appeared in the original record. By means of this translation, 
the boundaries of the Pueblo were actually extended to the east 
and to the south, giving the Pueblo approximately 7,000 
additional acres more than that originally granted in 1748.
    Four, the term ``sierra madre'' clearly does not mean 
``main ridge'' either through direct translation or within the 
context of the grant documents. ``Sierra madre'' simply means 
``mountain range'' and, taken with the geographical maps, can 
clearly be seen as abutting the eastern boundary of the Pueblo.
    Fifth, I found no documentation that would indicate that 
the eastern boundary was ever considered as the summit of the 
Sandia Mountains by Spanish authorities.
    In deriving these conclusions, I find no ambiguity in the 
documentation to support the claim that the eastern boundary of 
the Pueblo was ever recognized as the summit by Spanish 
authorities. To the contrary, an objective analysis of the 
record leads to an unambiguous conclusion that the placement of 
the eastern boundary of the Pueblo at the crest of the Sandia 
Mountains is inconsistent with historical fact.
    I reviewed the opinion issued on January 19, 2001, by the 
Solicitor of the Department of the Interior relating to the 
Sandia claim. I believe that the Interior opinion made 
significant errors regarding issues of historical 
interpretation and historical fact and misrepresented the 
material contained in my 1996 report. The Interior opinion 
apparently relied upon sources that were not authoritative or 
whose theories were found to be unsubstantiated.
    Specifically, the Interior opinion, number one, 
misrepresented the significance of the northern and southern 
boundary calls in the 1748 granting document, documents which 
clearly place the grant in a downhill setting, the boundary in 
a downhill setting.
    Second, mistakenly and uncritically it assumed the 
incorrect translation of ``sierra madre'' as ``main ridge,'' 
failing to address the etymological analysis that was contained 
in my 1996 report.
    Three, I found the opinion misconstrued the nature of the 
alterations to the boundaries of the Pueblo, which resulted 
from the mistranslation of the U.S. translator in the 1850s.
    Four, I believe the Interior opinion misconstrued the 
nature of pueblo grants under Spanish law by failing to 
recognize that the lands in dispute were unallocated royal 
lands, held in common for all residents of the area, including 
the Pueblo, to secure necessary timber and firewood. Thus, the 
Pueblo did not need to own these lands in order to gain access 
to these resources.
    Fifth, I found the Interior opinion misconstrued the 
concept of the area granted to each Indian pueblo in colonial 
New Mexico, which was four square leagues or approximately 
17,000 acres, and misrepresented the analysis of this question 
that I offered in my report.
    After the U.S. takeover of New Mexico, the Federal 
Government recognized the grants of 14 pueblos as originally 
comprising four square leagues. The higher acreages assigned by 
the Government to seven other pueblos were due to additional 
lands that were either granted or purchased by them at a later 
time or, on the other hand, due to fraudulent information 
provided to the U.S. authorities.
    Six, I believe the Interior opinion misrepresented other 
grants as analogous to that of Sandia, specifically the 
adjacent Elena Gallegos Grant, which was not granted to a 
pueblo, but rather to a non-Indian, and thus was governed by 
different criteria under Spanish law and Spanish custom.
    Seven, I believe that the opinion ill-advisedly relied for 
its conclusions on the work of the late Dr. Myra Ellen Jenkins, 
many of whose opinions regarding this issue were not 
substantiated by the documentary record. Had Dr. Jenkins 
thoroughly examined the 1748 grant documents as I had done, I 
believe Dr. Jenkins would have realized the impact of the gross 
errors of the Whiting mistranslation on the expansion of the 
Pueblo's eastern boundary in the 1850's and 1860's.
    I thank the committee for the opportunity to offer 
testimony on this most important issue and stand ready to 
respond to any questions you might have.
    [The prepared statement of Dr. Hordes follows:]
      Prepared Statement of Stanley M. Hordes, Ph.D., President, 
                          HMS Associates, Inc.
    Mr. Chairman and Members of the Committee: It is an honor to appear 
before the Committee this afternoon to share with you the results of my 
research into the history of the eastern boundary of the Pueblo of 
Sandia.
    My name is Stanley Hordes, President of HMS Associates, Inc., a 
historical research consulting firm, based in Santa Fe, NM. I hold a 
Ph.D. in Colonial Mexican History from Tulane University in New 
Orleans. I have conducted research into the history of Mexico and the 
Spanish Borderlands for over twenty-seven years, and served as the 
State Historian for the State of New Mexico. I have performed expert 
research and testimony in dozens of cases involving the history of land 
and water in the Southwest over the past seventeen years. I also hold 
the position of Adjunct Research Professor at the Latin American and 
Iberian Institute at the University of New Mexico. I would like to 
request that my complete resume be entered as part of the official 
record of my testimony.
    In 1995, I was asked by the U.S. Forest Service to conduct research 
into the history of the boundaries of the Pueblo of Sandia, with 
specific reference to the geographical extent of the Pueblo's eastern 
boundary from the establishment of the Pueblo's grant from the King of 
Spain in 1748. I made it clear to the Forest Service that I did not 
view my role as adversarial, that I did not see my position as one of 
trying to find historical facts to support a particular position. I 
told the Forest Service that I would conduct the most objective 
professional job possible. The Forest Service not only agreed with this 
approach, but insisted upon it.
    On March 1, 1996, I submitted my report, entitled, ``History of the 
Boundaries of the Pueblo of Sandia, 1748-1860,'' which was based on 
research conducted in New Mexico, Washington, DC, and Mexico City. I 
would like to request that a copy of this report be entered as part of 
the official record of my testimony.
    On the basis of my research, I offer the following conclusions:

          (1) In 1748, the governor of New Mexico, in the name of the 
        king of Spain, issued a grant of land to a mixed population of 
        Hopi and Southern Tigua Indians. The land was located on the 
        site of the old Pueblo of Sandia, which had been abandoned 68 
        years earlier.
          (2) The governor of New Mexico considered the newly 
        constituted Pueblo of Sandia as a ``formal pueblo,'' receiving, 
        like other Indian pueblos in New Mexico, a grant of land 
        comprising four square leagues--or one league (2.6 miles) 
        measured from the center of the pueblo in each cardinal 
        direction. In the case of Sandia, due to a shortfall of land to 
        the west, the Pueblo was compensated with additional lands to 
        the north and south. The eastern boundary of the Pueblo was not 
        affected by this adjustment, and thus extended only 1 league, 
        or 2.6 miles, toward the ``sierra madre [mountain range] called 
        Sandia,'' which served as the designated landmark on the east.
          (3) After the U.S. takeover of New Mexico in 1848, the U.S. 
        Office of Surveyor General began the process of authenticating 
        and surveying all land grants issued by Spanish and Mexican 
        authorities. During the investigation into the boundaries of 
        the Pueblo of Sandia, the official translator, David V. 
        Whiting, engaged in an apparently deliberate mistranslation of 
        the 1748 grant documents, mistranslating the term, ``sierra 
        madre,'' and adding boundary calls that never appeared in the 
        original record. By means of this mistranslation, the 
        boundaries of the pueblo were extended to the east and south, 
        giving the Pueblo approximately 7,000 additional acres more 
        than originally granted by the king of Spain in 1748.
          (4) The term ``sierra madre'' clearly does not mean ``main 
        ridge,'' either through direct translation, or within the 
        context of the grant documents. Sierra madre simply means 
        ``mountain range,'' and, taken in its geographical mass, can be 
        clearly be seen as abutting the eastern boundary of the Pueblo.
          (5)From the establishment of the Pueblo of Sandia in 1748, 
        until the assumption of sovereignty by the United States in 
        1846, Spanish and Mexican authorities recognized the eastern 
        boundary of the Pueblo of Sandia as a north-south line, 
        extending 1 league (5,000 varas, ca. 2.6 miles) east from the 
        center of the pueblo. At no time was the eastern boundary 
        considered as the summit of the Sandia Mountains.

    In deriving these conclusions, I found no ambiguity in the 
documentation that would lead to the deduction that the eastern 
boundary of the Pueblo of Sandia was ever recognized as the summit of 
the Sandia Mountains by Spanish or Mexican authorities. To the 
contrary, an objective analysis of the record, I believe, leads to an 
unambiguous conclusion that the placement of the eastern boundary of 
the Pueblo of Sandia at the crest of the Sandia Mountain is 
inconsistent with historical fact.
    Subsequent to the completion of my 1996 report, I had the 
opportunity to review the Opinion issued on January 19, 2001 by the 
Solicitor of the Department of the Interior relating to placement of 
the eastern boundary of the Pueblo of Sandia. The Interior Opinion made 
significant errors regarding issues of historical interpretation and 
historical fact. In developing its historical arguments, the Interior 
Opinion misrepresented the material contained in my report, and appears 
to have relied for its conclusions upon sources that were not 
authoritative, or whose theories were found to be unsubstantiated.
    Specifically, the Interior Opinion:

          (1) Misrepresented the significance of the northern and 
        southern boundary calls of the Pueblo in the 1748 granting 
        document, which clearly placed the grant in a downhill setting. 
        One must be geographically below the mountain in order to 
        ``face'' the two canadas noted in the document.
          (2) Mistakenly and uncritically assumed the incorrect 
        translation of sierra madre as ``main ridge,'' failing to 
        address the etymological analysis in my Report.
          (3) Misconstrued the nature of the alterations to the 
        boundaries of the Pueblo, which resulted from the 
        mistranslation of the U.S. translator in the 1850s.
          (4) Misconstrued the nature of Pueblo grants under Spanish 
        law by failing to recognize that the lands in question were 
        tierras realengas, or unallocated royal lands, held in common 
        for all residents in the area, including the Pueblo, to secure 
        timber and firewood. Thus, the Pueblo did not need to own these 
        lands in order to gain access to these resources.
          (5) Misconstrued the concept of the area granted to each 
        Indian Pueblo in Colonial New Mexico, which was four square 
        leagues, or approximately 17,000 acres, and misrepresented the 
        analysis of this question in my Report. After the U.S. takeover 
        of New Mexico, the federal government recognized the grants of 
        14 Pueblos as originally comprising only four square leagues. 
        The higher acreages assigned by the government to the seven 
        other Pueblos were due to additional lands either granted or 
        purchased at a later time, or to fraudulent information 
        provided to the U.S. authorities.
          (6) Misinterpreted other grants as analogous to that of 
        Sandia, specifically the adjacent Elena Gallegos Grant, which 
        was not granted to a Pueblo, but to a non-Indian, and thus was 
        governed by different criteria under Spanish law and custom.
          (7) Ill-advisedly relied for its conclusions on the work of 
        the late Dr. Myra Ellen Jenkins, many of whose opinions 
        regarding this issue were not substantiated by the documentary 
        record. Had she thoroughly examined the original 1748 grant 
        documents, as I had done, Dr. Jenkins would have realized the 
        impact of the gross errors of the Whiting mistranslation on the 
        expansion of the Pueblo's eastern boundary in the 1850s and 
        60s.

    I thank the Committee for the opportunity to offer testimony on 
this most important issue, and stand ready to respond to questions.
 Executive Summary; History of the Boundaries of the Pueblo of Sandia, 
                               1748-1860
           by stanley m. hordes, ph.d., hms associates, inc.

                            January 26, 1996

    This executive summary is designed to summarize a comprehensive 
report submitted to the Southwest Region of the U.S. Forest Service, 
entitled, History of the Boundaries of the Pueblo of Sandia. The 
purpose of this report is threefold: (1) to analyze the boundaries of 
the Pueblo of Sandia, as articulated and interpreted by Spanish, 
Mexican and U.S. Territorial authorities from the establishment of 
Sandia Pueblo in 1748 until the marking of the boundaries by the Office 
of Surveyor General in 1860; (2) to define the term, sierra madre in 
its proper historical context; and (3) to ascertain whether in 1748 
Sandia Pueblo was populated by descendants of the original Sandia 
Pueblo people who had migrated to the Hopi country after the Pueblo 
Revolt of 1680, or, on the other hand, the pueblo was settled by other 
Tigua and Hopi Indians.
            i. historical evolution of boundaries, 1748-1860
    On April 5, 1748, the Spanish governor of New Mexico signed a 
decree approving the resettlement of the Pueblo of Sandia by Indians 
brought from the Moqui (Hopi) country located some 200 miles to the 
west. The governor's signature on this document represented the triumph 
of a six-year effort by Franciscan friars to remove a mixed population 
of recently converted Moquis and descendants of Southern Tiguas, who 
had fled their homes after the 1680 Pueblo Revolt, from their 
overcrowded quarters, and bring them to the Rio Grande Valley. By means 
of the official Act of Possession, the pueblo received a tract of land 
similar to that which was granted to other pueblos, comprising a little 
over 17,000 acres. Normally, this piece of land would have measured one 
league (2.6) miles in each direction from the center of the pueblo, but 
because of the proximity of Sandia to the Rio Grande, and the fact that 
the pueblo's lands were reduced to the west, Sandia received additional 
lands to the north and south.
    Thus, under the terms of the 1748 royal grant, the Pueblo of Sandia 
received a tract of land measuring 7.06 miles north to south, and 3.35 
miles east to west. To the east, the lands extended one league, or 2.6 
miles from the center of the pueblo, reaching toward the foothills of 
the Sandia Mountains, a feature that was designated as the eastern 
boundary. The southern boundary extended 3.53 miles from the center of 
the pueblo.
    These limits were generally acknowledged by the Spanish and Mexican 
authorities, the pueblo and its non-Indian neighbors, from 1748 until 
the conquest of New Mexico by the United States a century later.
    After the U.S. takeover in 1846, Congress established the Office of 
Surveyor General, whose responsibilities included the authentication 
and survey of all grants issued by the Spanish and Mexican governments 
in New Mexico in accordance with the terms of the 1848 Treaty of 
Guadalupe Hidalgo. During the course of the Surveyor General's 
investigation into the nature and extent of the lands pertaining to the 
Pueblo of Sandia, the official translator, David V. Whiting, engaged in 
an apparently deliberate mistranslation of the 1748 grant documents, 
adding boundary calls that never appeared in the original record. By 
means of this mistranslation, the boundaries of the pueblo were 
extended to the east and south. The official surveys conducted by the 
Surveyor General reflected these extensions, resulting in the increase 
of pueblo lands from about 17,000 acres to over 24,000 acres.
    ii. definition of sierra madre in its proper historical context
    Among the inaccuracies in the translation by Whiting of the 
original Sandia Pueblo grant documents, was the mistranslation of the 
term Sierra Madre de Sandia, which served as one of the eastern 
boundary calls. Whiting represented sierra madre to mean, ``main 
ridge''. An examination of archival documentation, as well as 
historical and modern Spanish language and etymological dictionaries, 
however, reveals that this term is defined, not as a ``main ridge'', 
but rather as a mountain range.
    The citation of the eastern boundary of the Pueblo of Sandia as the 
Sierra Madre de Sandia should be understood in its proper historical 
context only as a general point of geographical reference. Considering 
that the specific measurement of the eastern boundary in 1748 was one 
league (2.6 miles) from the center of the pueblo, the appropriate 
identification of Sierra Madre de Sandia in this sense should be the 
foothills, and not the crest of the mountain.
         iii. ethnic composition of the indians who resettled 
                      the pueblo of sandia in 1748
    A controversy surrounds the question of whether the resettlement of 
Sandia Pueblo represented a return of the descendants of Sandia Pueblo 
people after a sixty-eight year sojourn in Hopi country, or, on the 
other hand, the 1748 immigrants to Sandia were composed of other Native 
American groups.
    Based largely on interviews with Sandia Pueblo people, one of the 
few ethnographical studies to address this topic asserts the pueblo 
belief that those who resettled the pueblo in 1748 were descendants of 
the original Sandias. As such, the pueblo today claims religious sites 
in the mountains to the east. This study also relates that the pueblo 
claims that it holds the foothills as within its boundaries, and that 
part of the foothills were sold to the U.S. government early in the 
twentieth century.
    But eighteenth-century archival sources, as well as modern 
historical scholarship, indicate that the Indians who settled the 
pueblo in 1748 represented a mix of descendants of Southern Tigua 
refugees who had fled the Pueblo Revolt of 1680, and Moquis. No 
evidence can be found in the documentary record indicating that the 
establishment of the mission at Nuestra Senora de los Dolores y San 
Antonio de Sandia in 1748 represented an ethnic re-formation of the 
earlier Pueblo of Sandia, which had been abandoned after the Pueblo 
Revolt of 1680.
    Nor can any record be found in the records of the U.S. Forest 
Service that Sandia Pueblo ever owned lands in the foothills outside 
its current boundaries, or sold such lands to the USFS. Moreover, an 
examination of plats of the pueblo show no diminution of its lands on 
the eastern boundary from 1860 to the present.

    Chairman Inouye. Thank you very much.
    Professor Leshy.

         STATEMENT OF JOHN D. LESHY, FORMER SOLICITOR, 
                   DEPARTMENT OF THE INTERIOR

    Mr. Leshy. Thank you very much, Mr. Chairman, members of 
the committees. I am happy to be back.
    I am appearing today solely as a private citizen expressing 
my own views. I am not representing anyone else interest in 
this matter. In the interest of time, I would ask my statement 
be included in the record.
    Chairman Inouye. Without objection.
    Mr. Leshy. I will just summarize and try to make three 
quick points and then we can move on to questions.
    First of all, I want to comment on the views of my fellow 
panelist Dr. Hordes. I think everyone who has looked at this 
matter understands that, as with many of the Spanish land 
grants in New Mexico, the historical record here is somewhat 
unclear. But let me emphasize, this is not a dispute between 
John Leshy and Dr. Hordes. This is a dispute between Dr. Hordes 
and a number of other historians. There have been many, many 
qualified historians who have looked at this issue over the 
years and have drawn somewhat different inferences from the 
record.
    While Dr. Hordes has his own view, there are a number of 
other historians who have different views. In carefully 
examining the record and the views of those various experts 
offered over the years, I reached the result I did, and I 
remain convinced that it is the correct conclusion, a fair 
reading of the record, and I have every confidence that the 
conclusion I reached, if it got to the courts on the merits, 
would be sustained.
    I should also add that at least one Federal judge has 
looked at this matter and has concluded that, contrary to Dr. 
Hordes' assertion that there is no ambiguity here, there is 
only one conclusion you can draw. Judge Harold Greene here in 
the Federal district court, specifically, in rejecting the 
opinion of my predecessor, said that experts hold vastly 
different opinions about the proper interpretation of the 
historical record here.
    That has been, of course, the basic problem all along. 
There just are good faith disagreements about what this record 
means. As I said, in my judgment the best view of the record is 
that the intention of the Spanish land grant was that the 
eastern boundary of the Pueblo be drawn at the mountain crest, 
and I wrote 15 or 20 pages in my opinion to explain that, 
carefully documenting and going over the views of the various 
historians on this matter.
    My second main point is to address a question that Senator 
Campbell asked earlier, which is is there a need for Congress 
to act. In my judgment there is a very urgent need for Congress 
to act. We have a settlement here that I think from just about 
every perspective is a fair, balanced, reasonable settlement of 
this problem. That settlement, as General Sansonetti said, goes 
up in a puff of smoke by November 15, on November 15, unless 
Congress acts.
    If that settlement does go up in smoke, I think it would be 
a very serious setback for a resolution of this problem. What 
could happen then? There are a number of things that could 
happen then. None of them are in my judgment nearly as 
preferable as moving forward with ratification of this 
settlement.
    Each of them, whether they go back to court and have 
prolonged litigation or whether the Department does a resurvey 
and essentially quiets title to the disputed area in the 
Pueblo, each of those solutions I think would be far worse than 
the settlement that is now before you.
    Most specifically, the settlement addresses a number of 
issues that cannot be answered by the courts in the litigation. 
The access to those subdivisions, for example, is not involved 
in the claim area. The settlement agreement essentially 
permanently grants access to the inholdings. The courts can 
never do that.
    If there is no settlement and if the Pueblo--whether or not 
the Pueblo gains title to that disputed area, that access 
question is going to be outstanding. And I think that the 
goodwill that has been generated in getting to the settlement--
if the settlement falls apart, that goodwill may fall apart as 
well, and I think we could have some real serious problems up 
there if we do not move forward with the settlement.
    Third and my last point, I want to address Senator Inouye's 
question about the precedent that this settlement might set. I 
have been practicing and teaching different land law and Indian 
law for several decades. In my judgment, the concern about what 
kind of precedent this sets or does not set really should not 
be an issue here.
    There is precedent in settling Indian claims for giving 
Indian tribes outright title. Congress did this at the Blue 
Lake Taos 20 years ago. There is precedent for giving Indians 
in disputed claims some sort of joint management 
responsibility. Congress did that with the Havasupi Indians in 
the Grand Canyon in 1975. Congress did that 2 years ago with 
the Timbashaw Indians in Death Valley National Park.
    There are also many precedents--I can think of at least a 
dozen; there are probably many more--for giving Indians in 
areas that they have an ancient and serious tie to some 
consultative and procedural rights and access rights for 
ceremonial uses, that sort of thing.
    So that has all happened a number of times before. So I 
think there are many examples of arrangements that are in law 
already where the U.S. Congress has acknowledged Indian rights 
and interests in how Federal lands are managed. I do not really 
see anything in this bill or this settlement that would create 
an undesirable precedent.
    I think, frankly, Congress has a golden opportunity before 
it to resolve a long-festering issue in a wholly satisfactory 
way, and I think it would be a terrible shame if this 
opportunity were lost. So I strongly urge the Congress to move 
forward.
    Thank you very much.
    [The prepared statement of Mr. Leshy follows:]
        Prepared Statement of John D. Leshy, Former Solicitor, 
                       Department of the Interior
    I appreciate the invitation to testify here today. I am appearing 
today solely as a private citizen, expressing my own views. I am not 
representing anyone else in this matter, and am not speaking for my 
current employer, the University of California Hastings College of the 
Law, where I am currently a Distinguished Visiting Professor.
    I strongly urge the Congress to enact legislation to ratify the 
April 2000 Settlement Agreement reached by the Pueblo of Sandia, the 
federal agencies, and the Sandia Peak Tram Company. The Agreement is a 
fair, carefully crafted resolution to the long-festering question of 
the location of the eastern boundary of the Pueblo of Sandia. S. 2018 
substantially tracks its provisions.
    I first want to comment on the views of my fellow panelist, Dr. 
Stanley Hordes. As was the case with many of the Spanish land grants in 
New Mexico, the historical record here is not a paragon of clarity. 
People can and have argued about many things in that record. In 
preparing my January 2001 legal opinion, I carefully examined Dr. 
Hordes' report, along with the views of other historians. My Opinion 
concludes that the historical record, and the collective judgment of 
historians who have examined the issues involved, strongly supports the 
Pueblo's position, rather than Dr. Hordes' position, as to the location 
of the eastern boundary. I continue to believe that is a correct 
conclusion, and a fair reading of the voluminous record. I further 
believe that this conclusion will be upheld by the courts if they have 
occasion to review it.
    As that Opinion indicates, Dr. Hordes makes various assumptions and 
draws various inferences from the record. (Among these are the meaning 
of the reference to ``sierra madre'' in the Act of Possession, the 
degree to which the formal pueblo idea was followed by the Spanish in 
making land grants, and the relevance of the fact that the eastern 
boundary of nearby grants was determined to be at the mountain crest.) 
The Opinion points out that, in many cases, Dr. Hordes' assumptions and 
inferences are not shared by others who have examined such matters. 
Indeed, others who have examined the matter believe the record supports 
a conclusion opposite of that reached by Dr. Hordes. Furthermore, some 
of the matters Dr. Hordes addresses--such as the disputes about the 
northern and southern boundaries--are at most only remotely relevant to 
the location of the eastern boundary.
    Dr. Hordes' conclusions are essentially the same as those in the 
1988 so-called Tarr Opinion. When I was Solicitor of the Department of 
the Interior, the United States defended the Tarr Opinion in court, 
with my concurrence, even though I harbored serious doubts that it was 
a correct reading of the law. A very well-respected federal judge (who 
had been on the bench for more than two decades, and is now deceased) 
reviewed all the evidence and arguments, including arguments along the 
lines of those offered by Dr. Hordes, and ruled in July 1998 that the 
Tarr Opinion was defective. The judge explained that the Opinion failed 
to give sufficient weight to the Pueblo's arguments, and specifically 
had not applied a controlling interpretive principle (one which dates 
back in American law nearly two hundred years) for construing 
ambiguities in documents relating to Indians. Let me quote the key 
point of the judge's ruling:

        [T]he circumstances surrounding the Pueblo land grant are 
        ambiguous. Experts . . . hold vastly differing opinions as to 
        the proper interpretation of the Spanish land grant. The Tarr 
        Opinion . . . myopically fails to find ambiguity. The Court 
        finds that this error led to another error, the failure to 
        apply the [and here the court quoted a modern U.S. Supreme 
        Court decision] ``eminently sound and vital canon . . . that 
        statutes passed for the benefit of . . . Indian tribes . . . 
        are to be liberally construed, doubtful expressions being 
        resolved in favor of the Indians.'' Therefore, the decision of 
        the Department of the Interior cannot stand.

    The judge vacated the Tarr Opinion and sent the matter back to the 
Interior Department with a directive to take action consistent with the 
judge's ruling.
    After the district court vacated the Opinion in 1998, we decided to 
see if the matter could be settled by negotiations in a way that 
satisfied the major concerns of all parties. Anyone who spends much 
time in litigation knows that settlements are often, even usually, 
preferable to litigation to the bitter end. In this particular case, 
settlement looked like an eminently attractive alternative. Why? For 
essentially two reasons.
    First, all our study and conversations with the various interests 
convinced me and the other federal parties--which included the Forest 
Service and other officials in the Department of Agriculture and the 
Department of Justice--that the disputants were actually in very 
substantial agreement about how the land in the dispute area ought to 
be managed. Everyone basically wanted the land to remain no more 
developed than it is now, to be kept in an essentially natural state, 
and to be open to public recreational access under reasonable 
supervision.
    This general agreement about what ought to happen on the ground was 
very different from most other litigation in which I've been involved. 
As this Committee is well aware, typically a wide gulf divides the 
parties in these kinds of matters. One side wants to mine or log or 
otherwise develop or intensively use the land, and the other side wants 
it left alone. Here, by contrast, everyone agreed the land should be 
left undeveloped. Moreover, the other land use objectives of the key 
interests were so strikingly similar that the makings of an agreement 
were practically staring us in the face.
    There was a second and equally important reason why settlement 
looked attractive. Continued litigation over the Pueblo's eastern 
boundary simple could not resolve many of outstanding issues involving 
the inholders (the private landowners in the area) as well as the Tram 
Company, the Counties, the Forest Service, and the holders of special 
use permits for communications sites at the top of the Mountain, some 
of which are in the claim area.
    Even if the Pueblo ultimately lost in court, for example, some very 
important on-the-ground management questions would remain. For example, 
what would happen to the inholders' road and utility access to their 
inholdings, if the Pueblo wanted to restrict access across Pueblo land 
(outside the claimed area)? Some of the current access is merely 
subject to a lease granted by the Pueblo which will expire in a few 
years. One of the main access roads that crosses Pueblo land outside 
the disputed area is actually in trespass because it is not supported 
by an existing lease.
    Or if the Pueblo ultimately succeeded in the courts, would it 
choose to continue to allow access to inholders, recreationists, 
special use permit holders, and others? What would be the scope of its 
regulatory authority and jurisdiction over the area?
    A negotiated settlement could address these important matters. 
Continued litigation over the boundary could not. The logic favoring 
settlement let, after strenuous, conscientious efforts, to the 
Settlement Agreement that brings us here today.
    In my judgment, although one can always quibble over details, the 
settlement is a win-win. It protects all parties' key interests. It 
reflects agreement on all important issues of on-the-ground management, 
including those that could not be resolved by continued litigation. It 
sets out a clear path for future management of this area. It honors and 
respects existing uses, and it quiets title.
    There is, of course, an important catch. The Settlement Agreement 
remains in effect only until November 15, 2002. This brings me to my 
second main point: There is an urgent need for prompt congressional 
action. If Congress does not act by then, several different things 
could happen. None is nearly as good as ratifying the Settlement 
Agreement. Each would, in various degrees, prolong uncertainty, delay 
ultimate resolution, lead to additional expense and, in the worst case, 
drive apart the various interests who have come together to produce 
this landmark accord.
    If Congress does not act by November 15, the Secretary of the 
Interior may simply proceed to implement the legal opinion I signed as 
Solicitor in January 2001, and to conduct a resurvey of the Pueblo of 
Sandia's eastern boundary. Upon secretarial approval of the resurvey at 
the crest of the Sandia mountain, the land in the claimed area would 
become vested in trust for the Pueblo. If that happened, none of the 
various safeguards for the interests of the Tram Company, the 
inholders, special use permit holders, recreational users of the lands, 
and the Forest Service that are included in S. 2018 would apply. It 
would take an Act of Congress to install such safeguards, and even if 
Congress passed such legislation, the Pueblo would likely have to be 
compensated for the resulting restrictions on its property rights.
    Alternatively, the Secretary could ask the Solicitor to revisit my 
legal opinion. If my successor did so, and resurrected something along 
the lines of the Tarr Opinion, the federal courts would almost 
certainly be asked once again to intervene. Because the court has 
already rejected the reasoning of the Tarr Opinion, the United States 
would have a steep uphill battle in trying to convince the courts 
otherwise. Litigation is expensive, time-consuming, and divisive. 
Moreover, the only answer it can give in this kind of case is a 
simplistic, yes-or-no, zero-sum answer. That is, the courts simply 
cannot address many of the access and management questions that the 
agreement and S. 2018 address sensibly and in great detail.
    If Congress does not act by November 15, the Settlement Agreement's 
guarantee of continued, permanent access to inholders, special use 
permit holders, the Forest Service, and recreational users across 
Pueblo lands would disappear. It is a risky to assume that the Pueblo 
will be willing to continue to support such a guarantee if the current 
settlement falls apart.
    Finally, I have heard it said that the approach of this legislation 
is unprecedented, and troublesome because it gives the Pueblo a veto 
over new proposed uses in the claim area, and also recognizes the 
Pueblo's right of access for traditional and cultural uses. It is my 
firm opinion, based on decades of practicing and teaching federal land 
law and Indian law, that this concern about precedent is totally 
unfounded.
    For one thing, the area will remain designated wilderness under the 
terms of the settlement. This, and the rugged terrain, make it very 
unlikely significant new uses would ever be proposed in this area. 
(Experience in the nearly quarter of a century since the wilderness was 
designated bears this out.)
    For another, Congress has often devised innovative arrangements for 
managing federal lands which depart from convention when peculiar local 
conditions require it. A prominent recent example was the approach 
fashioned by New Mexico's congressional delegation in the Baca Ranch 
acquisition and management legislation, enacted into law less than two 
years ago.
    Most important, there are many examples in the long history of 
arrangements between the United States and Indian tribes where Congress 
has acknowledged Indian rights and interests in how particular areas of 
federal land are managed. A number of treaties and statutes recognize 
rights of particular Indian tribes--most notably in the Pacific 
Northwest and in the Great Lakes region--to hunt, fish and gather 
resources on federal lands (and in some cases, nonfederal lands). At 
least one prominent unit of the national park system, Canyon de Chelly 
National Monument in northeastern Arizona, is actually on Navajo tribal 
trust land, and the National Park Service administers the area under an 
operating agreement with the Navajo Nation.
    A couple of other modern examples from the southwest are especially 
apt. In 1975 Congress accorded the Havasupai Indians certain statutory 
rights with respect to certain lands in the Grand Canyon National Park. 
Less than two years ago, Congress enacted a statute recognizing rights 
of the Timbisha Indians in certain lands in Death Valley National Park.
    In short, there is ample precedent for acknowledging the right of 
the Pueblo of Sandia to have a say, recognized in federal law, 
regarding how this area will be managed. Almost everyone agrees that 
the Pueblo has close and ancient ties to this area. Moreover, the 
Pueblo has a very credible legal claim to this area. This means that 
the alternative to ratifying this settlement may not be that the Pueblo 
has no voice in how this land is managed; instead, it may be that the 
Pueblo has essentially the only voice in how this land is to be 
managed.
    The Settlement Agreement that S. 2018 substantially tracks was 
carefully drawn during extended negotiations. Like all settlements, it 
reflects compromises on all sides, but I firmly believe it resolves the 
Pueblo's claims, and many other issues that further litigation would 
not resolve, in a way that is fair, comprehensive, and permanent.
    Congress now has before it a golden opportunity to resolve this 
long-festering set of issues in a wholly satisfactory way. It would be 
a terrible shame if this opportunity were lost.

    Chairman Inouye. Thank you very much.
    Professor Leshy, does the Federal trust responsibility to 
Indian tribes and the Government to Government relationship 
that the United States has with the tribes permit these types 
of cooperative management arrangements on public lands in which 
tribes have a legal, historical, or cultural interest?
    Mr. Leshy. Yes, Senator, I believe that the idea of 
cooperative arrangements and collaborative management 
responsibilities in these select areas where tribes have these 
ancestral, strong ancestral ties, is an entirely appropriate 
expression of and implementation of the trust responsibility.
    Chairman Inouye. Does the U.S. Government have the same 
unique legal relationship with non-Indians as it does with 
Indian tribes that would form the basis for this type of 
arrangement?
    Mr. Leshy. Well, the United States has a special 
responsibility to Indian tribes. It is a firmly embedded 
principle in American law that goes back 200 years. The United 
States obviously also has responsibilities toward non-Indians. 
I would not characterize them as the same, but clearly non-
Indians who use Federal lands clearly have rights.
    I think, frankly, the beautiful thing about the settlement 
that is before you is that it carefully and I think 
appropriately balances the rights and expectations of non-
Indians as well as the Pueblo.
    Chairman Inouye. Now, when you were Solicitor why did you 
decide to issue an opinion on January 19 rather than leave the 
resolution of this matter to the incoming administration?
    Mr. Leshy. Let me, Senator, put this in context. One of the 
very first things that hit me when I became Solicitor in 1993 
was this Pueblo of Sandia matter. The Pueblo came to see me. 
They were dissatisfied with the Tarr opinion. They asked me to 
review it. I looked at it. I had serious doubts about it, but I 
thought, well, the Government has taken this position, the 
Government ought to defend it in court. So we did for several 
years defend the Tarr opinion in court, even though I privately 
harbored serious doubts about the accuracy of it.
    Then the Federal judge threw out the Tarr opinion, for 
reasons that I indicated, said that it did not fairly represent 
an accurate view of the law. The intervenors--then we started 
working on the settlement. The intervenors took that court 
decision to the Court of Appeals. The Court of Appeals 
dismissed their appeal because the settlement had been reached 
in November.
    Four days later, the Sandia Mountain Coalition and the 
county of Bernalillo asked me to move forward with a correct 
resurvey. The Pueblo asked me to move forward. At that point I 
had been grappling with this issue for 8 years. I had dozens of 
meetings about it inside and outside of my office, with 
Department of Agriculture attorneys and officials, with 
Department of Justice officials, and with all the interest 
groups.
    In my 8 years as Solicitor, I have dealt with thousands of 
legal questions. I frankly do not think I have devoted more 
study to any single discrete legal issue, more time, than I did 
to the Sandia question. I was at least as familiar with it as 
probably anybody in the Federal Government.
    I could have simply left office and left this matter 
unresolved. But the judge had thrown out the Tarr opinion and 
directed the Department of the Interior to take action in 
conformity to his opinion. I was very uncomfortable about 
leaving office not following the judge's direction. When we had 
a tentative settlement in hand, that was good, but, as I said 
earlier, that settlement would go up in smoke if Congress did 
not approve it and then we would be back in court.
    Given all those circumstances, I thought then and I still 
firmly believe that it would have been irresponsible for me to 
walk out of office without following the court's direction and 
resolving this matter by opinion. I think if I had walked out 
and not done it, it would have delayed ultimate resolution 
perhaps for a very long time. It would have made renewed 
litigation more likely, not less likely, and I think renewed 
litigation frankly would be the absolute worst thing to happen 
here for the people of Albuquerque, the counties involved, the 
affected land owners, the recreationists, the Forest Service, 
and the Pueblo.
    So I decided to move forward at that point and, after 
consulting again with Agriculture and Justice, with the 
reevaluation that the court had called for, I reopened the 
record. I asked for more comments and arguments from all the 
parties. I got those, I read those, and I considered them. I 
believe the opinion, as I said, I reached in January was the 
right result, reached for the right reasons, and was the right 
thing to do under the circumstances and will, if it comes to 
that, be upheld by the courts.
    But I continue to hope and urge that Congress ratifies the 
settlement agreement and brings this matter to a close. Thank 
you.
    Chairman Inouye. Thank you.
    Dr. Hordes, I gather that you disagree with Solicitor 
Leshy's opinion of January 19?
    Dr. Hordes. Yes, sir, that is correct.
    Chairman Inouye. Would you like to elaborate on that?
    Dr. Hordes. Oh, I can reiterate what I indicated before, 
but it was fairly well included in the, I think seven or eight 
points that I made in my testimony.
    Chairman Inouye. Thank you very much.
    Dr. Hordes. Yes, sir.
    Chairman Inouye. Senator Bingaman.
    Chairman Bingaman. Mr. Chairman, I appreciate very much 
both of the witnesses being here. I do think it is useful 
testimony. Obviously, what we are trying to do or what I have 
been trying to do in the proposed legislation is not to once 
again get into the validity of the claim. I mean, I think that 
that is an interesting issue, but frankly it is the subject--it 
has been the subject of much litigation, may be the subject of 
more litigation.
    The hope is to get a resolution that all parties could live 
with. So I appreciate the testimony and I know that 
particularly John Leshy has spent a lot of time on this and I 
appreciate him coming to the committee today to follow up on 
the work he has done before.
    Chairman Inouye. Senator Campbell.
    Senator Campbell. Well, Mr. Chairman, I almost do not know 
where to start. Certainly Mr. Leshy and Mr. Hordes know a lot 
more about it than I do and their reputation is well known. Few 
other people in the audience probably have their expertise, 
maybe with the exception of Reed Chambers back there, who has 
been a wonderful source of information for our committee, the 
Indian Affairs Committee.
    But I just sit here listening about the laws and the rights 
of the Spanish land claims and the U.S. Government and 
literally everybody else, including the people who have homes 
in that area, and I would like to know a little bit more about 
what I would call aboriginal rights. That is, the Sandia 
Pueblo, the Indian people. Because I have friends that are 
Pueblo people, but I do not know a lot about their history. 
Maybe you can tell me.
    Were they in that area--I mean, how long have they been in 
that area? Have they been there before New Mexico was a State?
    Senator Domenici. 600 years.
    Senator Campbell. 600 years. So they were there before New 
Mexico was a State, before Albuquerque was a city, before the 
U.S. Government was a government, before Spanish rule, before 
Columbus--a long time.
    Where I live up by Mesa Verde in Colorado, it is said that 
the Anasazi, the ``Ancient Ones,'' became the Pueblo Indians, 
that when they droughted out over a period of years around the 
11th or 12th century, they then moved down the river and that 
is when they became Pueblos. I do not know how true that is. I 
guess some historian or some anthropologist, somebody could 
probably tell me.
    But it seems to me that, you know, they did not have a 
written language, did not have all kinds of documentation that 
we have in modern society, but certainly they have got some 
kind of aboriginal claims just having been there that long. 
Since there were in those days, there was no fences or lines or 
borders or so on, that area where they have lived for 600 
years, as Senator Domenici has said----
    Senator Domenici. They used it.
    Senator Campbell. They have used that for that amount of 
time.
    Whatever land that they lost, like this disputed land here, 
how did they lose it? They did not lose it?
    Dr. Hordes. May I respond, Senator Campbell?
    Senator Campbell. Yes, please. I am interested in knowing.
    Dr. Hordes. First of all, we are dealing with a situation 
that is unique among the pueblos. Certainly there was a Pueblo 
of Sandia in the approximate area of the present Pueblo before 
the coming of the Spanish. After the Pueblo Revolt of 1680, the 
Pueblo was abandoned in about 1680, 1681, and they had left to 
go west toward the Hopi country in western New Mexico and 
eastern Arizona.
    It was not until about 68 years later in the 1740's that 
the Franciscans were desirous of bringing some of the 
descendants as well as some of the Hopi Indians, the 
descendants of the general refugees from the Rio Grande Valley, 
back to the Rio Grande Valley and settling them on a mission on 
the abandoned site of the Pueblo of Sandia.
    So what we see in 1748 is the creation of a new settlement. 
We are not dealing with individuals whose roots go back on that 
site beyond 1748. There may have been some of the descendants 
of the Pueblo among them, but for the most part it was a re-
formation of a mixed group of Indian people on the site in 
1748, and the rights that they have, that the United States 
recognizes, stems from the rights that were granted by the 
Governor of New Mexico speaking for the King of Spain, 
continued by the Republic of Mexico, and under the terms of the 
Treaty of Guadaloupe-Hidalgo of 1848 my understanding is the 
United States must recognize the rights that were granted by 
the previous sovereigns, that is to say the King of Spain and 
the Republic of Mexico.
    Senator Campbell. In the treaty of 1848, the Hidalgo 
Treaty, did the Native peoples have any voice at all in that 
treaty?
    Dr. Hordes. Well----
    Senator Campbell. In California what happened when the 
Franciscan missionaries moved people around, Native peoples, 
after a number of years they became known as ``mission 
Indians.'' They almost lost their identity and were pretty much 
indentured servants, and that is how all those missions in 
California got built, as you probably know.
    Dr. Hordes. Yes, sir.
    Senator Campbell. You can still go to some of those old 
missions in Monterey and San Juan Capistrano and so on and look 
underneath the tiles of the roof and find the skin imprints of 
Indians, where they bent the tiles, the wet tiles, over their 
legs to make those tiles. They were not paid for it, by the 
way, except in slop.
    Mr. Leshy. Senator, if I could just add one thing to what 
Dr. Hordes said. There is another element here. The key issue 
is what was intended by the Spanish land grant in 1748. But in 
1858, 10 years after the treaty, Congress confirmed that grant 
by statute. So the Pueblo actually has a very credible argument 
that that congressional confirmation in 1858 of the 1748 grant 
really cements their title to this area.
    Senator Campbell. Well, that is great. Between the 
missionaries and the U.S. Congress, the Indians have sure fared 
very well in the history of this country, I will tell you that.
    Thank you, Mr. Chairman.
    Dr. Hordes. Senator Campbell, may I respond to your 
question about who negotiated the Treaty of Guadaloupe-Hidalgo? 
It was negotiated between the representatives of the United 
States and the representatives of the Republic of Mexico after 
the defeat of the Mexican armies during the Mexican War of 
1846.
    Senator Campbell. Nevertheless, there was no voice of the 
Native peoples involved in that, was there?
    Dr. Hordes. Nor any of the Hispanic people in New Mexico, 
either.
    Senator Campbell. Thank you, Mr. Chairman.
    Chairman Inouye. Senator Domenici.
    Senator Domenici. Senator Campbell, I think you will find 
that the Pueblo Indians in our State all have land. The 
question is--and they have claimed the land and had it 
validated to them for decades. The question is do they own some 
more land beyond that. That is the situation here. The 
situation here is this 10,000 acres, which you see every time 
you come to Albuquerque. You just do not have it pointed out to 
you.
    Senator Campbell. I know where it is. It is up by the 
tramway, so I can see it from the highway.
    Senator Domenici. This committee here in this room adopted 
a piece of legislation making it a wilderness, calling it 
property of the United States of America, creating it as a 
wilderness for everybody, the Indian people--and there are 
trails up there and it is used by about a million people a 
year.
    This issue now is, after a significant amount of time, the 
Indian people claim that they own most of that mountain. That 
has never been adjudicated in court, although some preliminary 
findings have been made in court. Now the effort is being made 
to resolve the differences between the Indians' claim and what 
obviously was a very substantial, if not ownership, claim of 
the United States when we turned it into a wilderness area.
    So that is what we are now talking about. This particular 
group of Indian people have lands beyond this, have a very 
major casino on a road that does not go all the way up there, 
but is in that area. They are attempting to round out what they 
perceive to be their holdings. They have had an opportunity to 
go through the Claims Court and get money. I would assume--I do 
not remember, but I assume they might have even done that. They 
do have lands that have been perfected to them, and I think 
they are very, very responsible people and we are going to all 
try to work this out one way or another.
    I do want to say, Mr. Leshy--and I will try to be brief--
you finally issued that Solicitor's opinion as you went out the 
door on the 19th day of January, leaving the administration and 
taking on your new chore of being a lawyer and whatever you do; 
is that not right?
    Mr. Leshy. Yes.
    Senator Domenici. I mean, I am not insinuating anything, 
although it sounds strange to me, with all the time you have 
had, that it took you until the 19th day of January, when the 
20th day of January you had no more authority. But you have 
explained that to us, so thank you.
    Now, Mr. Leshy, you talk a lot about all these other areas 
in America where we have these joint uses. I have not looked 
them up, but I think it behooves us to look at the agreement in 
this joint use because it is very, very different from what my 
staff tells me than others.
    You see, both of these giants, the United States of America 
and the Indian Pueblo, both want ownership. The problem is how 
do we--we cannot have two ownerships. So we have tried to 
create indicia of ownership and given some to one and some to 
others, and hope that when we are finished they can live in 
harmony and peace and all these wonderful uses that have been 
occurring can continue forever, with nobody changing anything.
    The Governor contends that we are better off having them 
because we change our minds and he contends, I imagine, that 
his people will never change their mind. I wonder about that. I 
will ask him when he gets up here.
    In any event, let me say the other issue is exclusive 
right. There is a veto over any changes to be made. They are to 
have, the Indians are to have, exclusive tribal hunting, not 
New Mexico Fish and Game; jurisdiction over nontribal lands 
that are within the periphery. Even though we will be clearing 
the roads and the like, this agreement I believe has 
jurisdiction over non-Indian lands. That is not illegal, it is 
not preposterous, but it is certainly not very usual that, if 
you did not have it, you would settle that in an agreement. 
Normally it goes the other way.
    There are parcels in this that are put in trust that are 
inholdings, that I think could create some problems that would 
not exist in a clean-cut situation.
    So we do have a little bit to discuss, and I think if you 
look at it from the standpoint of how we take different indicia 
of ownership applied to our commonsense usage and the like and 
fix this correctly for both--I think that is what we are really 
trying to do.
    My last question of you has to do with, do you have any 
thoughts on whether or not Federal environmental laws should 
have been complied with or do you have a way of explaining that 
they are not applicable in this instance?
    Mr. Leshy. Well, I think the way that provision that you 
have referred to should be understood is this. The thing that 
made this agreement possible, I think, and frankly the reason I 
think it is such a good deal, is that the parties basically, 
especially the Forest Service and the Pueblo and the 
recreationists and the land owners, all essentially want the 
same thing to happen here: that is, no development. They do not 
want houses there, they do not want roads there. They want it 
to be left alone.
    So what you are really talking about, when you are talking 
about how this area is going to be managed and who is going the 
have what say over management, you are talking about a very 
narrow range of management choices because the basic choice has 
been made. This area is going to remain essentially 
undisturbed.
    So if you look at it in that context and say, well, we are 
going to move forward with this essentially undisturbed kind of 
management of this area, then whether the environmental laws 
apply or not seems to me to be not nearly as important as in 
most other situations, when you are really making fundamental 
decisions of a different character.
    So I think that is why one could justify not applying at 
the initial stage, as I understand this agreement does, the 
normal environmental processes.
    Senator Domenici. Mr. Chairman, I have questions, I will 
submit them to the Pueblo in due course, three or four.
    Chairman Inouye. All right, sir.
    May I ask another question for clarification, Dr. Hordes?
    Dr. Hordes. Yes, sir.
    Chairman Inouye. You stated that the Pueblos left that area 
after the Pueblo Revolt and went to Hopi Land?
    Dr. Hordes. Yes, sir.
    Chairman Inouye. I did not want to give the impression that 
they left voluntarily.
    Dr. Hordes. No, no. There was, I guess the State Department 
would call it, a frank exchange of views between the Spanish 
who were retreating after the Pueblo Revolt and on their way 
down--there was some hostilities between the Spanish and the 
Indians.
    Senator Campbell. ``Frank exchange of views'' sometimes 
means at gunpoint, I think, Mr. Chairman.
    Dr. Hordes. I beg your pardon?
    Senator Campbell. I think ``frank exchange of views'' 
sometimes means at gunpoint.
    Dr. Hordes. Yes, yes. There was hostilities initiated by 
the Spanish against the Pueblo of Sandia, which did indeed 
result in the abandonment.
    Chairman Inouye. Did they not have many bloody battles and 
massacres?
    Dr. Hordes. Well, there were certainly hostilities on the 
part of both Pueblo against Spanish and Spanish against Pueblo 
during that period of the Pueblo Revolt of 1680. We can be here 
for a couple of hours to discuss the causes of the Pueblo 
Revolt, but there was an alliance of northern and southern 
Pueblos that coalesced to attack some of the Spanish 
settlements, as well as the capital at Santa Fe, which 
stimulated the migration to the south, and there was the attack 
on the part of the Spanish against the Pueblo of Sandia on 
their way south that did indeed result in the migration of the 
Pueblo to the west.
    Chairman Inouye. Well, I am not an historian, obviously, 
but what little I have read of the Pueblo Revolt leads me to 
believe that before the coming of the Spaniards the Pueblos 
were very peaceful people. They hardly had any arms for 
fighting.
    But may I, on behalf of the committee, thank you, Dr. 
Hordes and Professor Leshy.
    Dr. Hordes. Thank you.
    Senator Campbell. May I ask one more question, Mr. 
Chairman?
    You said the Pueblo Revolt was 1680?
    Dr. Hordes. Yes, sir.
    Senator Campbell. Did that happen in several pueblos or one 
pueblo? They threw some priests off a cliff at one of the 
pueblos during that revolt?
    Dr. Hordes. I am not aware of that specific incident, 
Senator Campbell.
    But if I may, I was ruminating on a question you had asked 
me, Senator Inouye, and if I might respond, if I had any 
additional comments on what Professor Leshy had said. If I may 
just take a moment to comment on his observation about 
ambiguity, there is not an event in human history that 
historians do not have some kind of disagreement about. The 
fact that historians disagree about something that happened in 
the past is very common.
    That does not mean that every event in human history is 
ambiguous. I think that situation is very true here. My reading 
of the documentation, the primary documentation, is one where 
we see a very unambiguous account of what happened with the 
granting and the recognition of the Pueblo's boundaries. The 
fact that historians disagree with it I do not think interferes 
with that status where it is not ambiguous.
    The other comment I would like to make is with Professor 
Leshy's comment that I am kind of a Lone Ranger on this issue. 
With the exception of one or two affidavits on particular 
issues, I have yet to see a formal, documented, expert 
historical report responding to the conclusions that I reached 
in 1996.
    With regard to the notion that I am the only one that has 
researched, reached these conclusions, I would refer you, 
Senator, to the report of William Morgan, the report of Dr. 
Frank Wosniak, the work of Professor Michael Meyer from the 
University of Arizona, and even the work of Dr. Ward Allen 
Menge, who has worked on behalf of the Pueblo. Dr. Menge came 
to many of the same conclusions that I has as well. I would 
just like the record to show that I am by no means the only one 
what has come to this conclusion, Senator.
    Thank you.
    Chairman Inouye. On documentation that you speak of, there 
must be Spaniard documentation or missionary documentation. 
Were there any Pueblo documentations?
    Dr. Hordes. The only records that remained were the ones 
that were recorded by the government of the King of Spain. To 
be certain, Pueblos had certain rights where they could sue and 
be sued, they could petition the King, petition the Governor, 
and there are copious, copious documentation to reflect 
advocates for the Pueblo as well as the Pueblo representatives 
themselves coming before Spanish colonial authorities to plead 
their case. On many, many occasions the Spanish colonial 
authorities indeed did rule in their favor.
    Chairman Inouye. Thank you very much, sir.
    Dr. Hordes. Thank you.
    Senator Campbell. Mr. Chairman, the gentleman said that 
historians disagree and that is absolutely true, but it has 
always been in my view that they rarely take into consideration 
tribal historians because they did not have a written language. 
But I do not think they are any less valid, frankly.
    Senator Domenici. Mr. Chairman, I would like just to take 
one minute here. I did get John Leshy to acknowledge that he 
filed a Solicitor's opinion on the 19th and I forgot to ask him 
or state that that opinion overrode an opinion of the previous 
Solicitor. So there is a Solicitor's opinion by Solicitor 
Tarr--this is it--that said the opposite. As he left office, he 
issued an opinion that overruled Tarr, thus making his the last 
opinion, which I assume everybody now assumes we ought to buy, 
although there has been at least three of these that have 
happened where they overturn each other while they are in 
office, which seems to me to mean that there is a little bit of 
political input into these solicitors' opinions.
    Thank you, Mr. Chairman.
    Mr. Leshy. If I could, excuse me, just add one thing here. 
There was an intervening event between the Tarr opinion and my 
opinion and that was the decision of Judge Greene in the 
district court. Remember, the United States defended the Tarr 
opinion in the Clinton administration. We defended it for 5 
years.
    Judge Greene threw it out and said take another look, which 
is why I wrote my opinion.
    Chairman Inouye. Thank you very much.
    Dr. Hordes. Thank you for the opportunity.
    Chairman Inouye. May I now call upon the Governor of the 
Pueblo of Sandia, Sandia Tribal Council of New Mexico, the 
Honorable Stuwart Paisano. Governor Paisano, it is a pleasure 
to have you here with us.

   STATEMENT OF STUWART PAISANO, GOVERNOR, PUEBLO OF SANDIA, 
             SANDIA TRIBAL COUNCIL, BERNALILLO, NM

    Mr. Paisano. Thank you, Mr. Chairman. Good afternoon, 
Chairman Bingaman; Chairman Inouye; ranking members Murkowski, 
Campbell; Senator Domenici, and members of the committee. On 
behalf of the Pueblo of Sandia, I appreciate the opportunity to 
testify today in order to encourage this committee to implement 
a fair and just resolution to the Sandia Mountain issue. I have 
a brief statement and request that my written statements be 
admitted into the record.
    Chairman Inouye. Without objection, so ordered.
    Mr. Paisano. To our people, no issue is more important than 
the protection of Sandia Mountain. For the Pueblo, it is a 
matter of centuries-old religion and cultural traditions. It is 
central to our beliefs, practices, and prayers. The mountain is 
the only source for certain resources that we need for our 
religious ceremonies. Our spiritual leaders routinely make 
pilgrimages to the shrines on the mountain and leave offerings. 
These shrines are located on the mountain from the foothills 
all the way up to the crest.
    Because of its significance to our religious and cultural 
traditions, our people have always and will always believe the 
mountain should remain wild and undeveloped. That is why we are 
so grateful to Senator Domenici for his efforts to protect and 
to preserve the mountain. His leadership in establishing the 
Sandia Mountain Wilderness helped to ensure that the mountain 
is not further developed, at least in the short term, by 
commercial interests.
    Chairman Bingaman, we want to thank you for your leadership 
in introducing legislation that has brought us to this hearing.
    We have made a number of painful concessions to resolve the 
controversy. Despite confirmation of our Spanish land grant by 
the U.S. Congress in 1858, we agreed in the settlement 
agreement to: extinguish our title to the mountain, continue 
the Forest Service administration of the mountain, permanent 
easements over existing lands for public and private access, 
disclaim any title to privately owned lands on the mountain.
    We continue to adhere to these concessions in the agreement 
even though the Federal Court of Appeals ruled in our favor and 
the Interior Department Solicitor ruled that we hold title to 
this mountain.
    We believe that the settlement agreement in S. 2018 
provided some major benefits to all interested parties. First, 
the mountain will be preserved and protected forever. The 
Pueblo is absolutely committed to protecting the mountain and 
we agree that the preservation of the wilderness system is a 
national priority.
    We have agreed that all commercial uses, including gaming, 
mineral, timber production, would forever be prohibited. Our 
concern is that national policy may change direction, as often 
happens when Native Americans are involved. We feel strongly 
that the perpetual preservation of the wilderness will be best 
served by giving the Pueblo the right to consent to all new 
uses of the mountain should the Forest Service ever consider 
permitting new uses.
    Second, the agreement and legislation both recognize the 
Pueblo's rights and interests in the mountain. Over 200 years 
ago, the King of Spain memorialized our ownership of the 
mountain in a written grant. This grant was confirmed by the 
U.S. Congress in 1858. The grant set our eastern boundary at 
the main ridge called Sandia. No subsequent act of Congress has 
ever extinguished our rights to the mountain.
    The mountain settlement and S. 2018 both codify the 
public's right to use of the mountain and continue our 
centuries-old traditions. This simple acknowledgment, confirmed 
by the U.S. Department of the Interior as recently as last 
year, is essential to a legislative solution.
    Third, the agreement and legislation will protect and 
enhance access to the mountain for the Pueblo and for the 
public. We realize that Sandia Mountain is not only important 
to the Pueblo, but also to the public at large. The settlement 
agreement and S. 2018 both enhance access for the public by 
granting permanent rights of way over existing lands to 
trailheads, picnic areas, and other public places.
    The agreement and legislation will finally allow us to stop 
litigating over the mountain and to focus on preserving and 
enjoying it.
    There is only one certain way to avoid future litigation. 
That is for Congress to pass ratifying legislation before the 
settlement agreement terminates on November 15. We are here 
today precisely because we want to work with you, Chairman 
Bingaman, Senator Domenici, and members of the committees, to 
achieve that goal.
    We do not mean the disparage our friends' and neighbors' 
interests by preserving the mountain, but not only might the 
public's sentiment to protect the mountain change over time, 
their interests simply cannot be compared to the obligation 
that we feel after centuries of religious and traditional 
practice, nor does it equate to our ownership rights to the 
mountain.
    S. 2018 makes a number of significant changes in the 
settlement the Pueblo agreed to, none of which are favorable to 
our interests. We believe the settlement agreement should be 
enacted as written. If it is not and if we are forced to accept 
modifications that are detrimental to our interests, we believe 
that it is only fair and just that the Pueblo should receive 
benefits in return.
    In our written testimony we have discussed a number of 
changes we would like to see adopted. Mr. Chairman, we have 
heard some people criticize the settlement agreement as 
dangerous precedent. This is not so. We know of no other 
present situation where a national forest has been mistakenly 
established on lands owned by an Indian tribe, where the 
original grant to the tribe had been confirmed by an act of 
Congress, and where courts have always read this very language 
to convey title to a tribe.
    Before concluding, I would like the members here to know 
that we are willing to work with the committees and all parties 
in good faith to resolve the mountain issue. We want a 
solution. We cannot accept, however, or support, any solution. 
We simply cannot abandon our deeply-held beliefs or fail in our 
sacred responsibilities to generations past, to generations to 
come. We are committed to finding a resolution that provides 
fairness and justice to the Pueblo.
    Thank you for the opportunity to share our views and I will 
be happy to try to answer any questions that the committee may 
have.
    [The prepared statement of Mr. Paisano follows:]
  Prepared Statement of Stuwart Paisano, Governor, Pueblo of Sandia, 
                 Sandia Tribal Council, Bernalillo, NM
    Good afternoon, Chairmen Bingaman and Inouye, Ranking Members 
Murkowski and Campbell, Senator Domenici and Members of the Committees. 
On behalf of the Pueblo of Sandia, I appreciate the opportunity to 
testify today in order to encourage this Committee to implement a fair 
and just resolution to the Sandia Mountain issue.
    To our people, no issue before these Committees or this Congress 
could ever be more important than the protection of Sandia Mountain. 
For the Pueblo, it is not a matter of dollars and cents; rather, it is 
a matter of our centuries-old religious and cultural traditions.
    Our people have been living on and using the Mountain for at least 
600 years. It is central to our beliefs, practices, and prayers. The 
Mountain is the only source for certain resources we need for our 
religious ceremonies. Our spiritual leaders routinely make pilgrimages 
to the shrines on the Mountain and leave offerings. These shrines are 
located on the Mountain, from the foothills all the way to the crest.
    To say that the Mountain is special or sacred to our people does 
not do it justice. Everyone at the Pueblo of Sandia, all those who came 
before us, and all who will follow us, will always hold this Mountain 
central in our hearts.
    The United States Congress in an 1858 statute confirmed our Spanish 
land grant as extending to ``the main ridge of Sandia Mountain.'' From 
a legal standpoint, these words refer to the Mountain's summit. The 
Supreme Court read these same words in an 1855 treaty concluded just 
three years earlier with the Yakima Tribe to mean a mountain's summit. 
Northern Pacific Ry. Co. v. United States, 227 U.S. 355 (1913). The 
federal courts have read similar language in grants just to our south--
to private landowners and the Isleta Pueblo--as conveying title to all 
lands to the summit of a mountain.
    Because of its vital and irreplaceable significance to our 
religious and cultural traditions, the Pueblo of Sandia has always 
believed that the Mountain should remain wild and undeveloped. That is 
why we are so grateful to Senator Domenici for his efforts to preserve 
the Mountain. His leadership in establishing the Sandia Mountain 
Wilderness has helped to ensure that the Mountain is not further 
developed, at least in the short term, by commercial interests.
    Chairman Bingaman, we want particularly to thank you for your 
leadership in introducing S. 2018 that has brought us to this hearing. 
If we are going to protect Sandia Mountain, we need to act now to work 
out any differences before the settlement agreement we reached two 
years ago with the United States expires on November 15.
    This settlement agreement was reached after extensive negotiations 
between the Pueblo, the Sandia Peak Tram Company, and the Departments 
of Justice, the Interior and Agriculture. Representatives of Bernalillo 
County, the City of Albuquerque and a coalition of homeowners and users 
of the Mountain participated for nearly a year in these negotiations, 
but withdrew prior to their conclusion to pursue further litigation, 
and refused to sign the agreement.
    We made a number of painful concessions to resolve the controversy. 
The other parties made concessions as well. Despite confirmation of our 
Spanish land grant by Congress, we agreed in the settlement agreement 
to:

          1. United States title and continued Forest Service 
        administration of the Mountain;
          2. Continued public access to the Mountain;
          3. Extinguishment of our title to the Mountain, subject to 
        recognition of our rights and interests as set forth in the 
        settlement agreement;
          4. Easements over our existing lands for roads and trails to 
        the Forest Service facilities and two of the private 
        subdivisions on the Mountain, and also to a utility corridor to 
        the subdivisions;
          5. Disclaim--as we have always done--any title to privately-
        owned lands on the Mountain.

    We continue to adhere to these concessions and to the agreement, 
even though since we signed it, the federal court of appeals ruled in 
our favor and the Interior Department Solicitor has determined that we 
hold title to the Mountain.
    We believe S. 2018 should be amended to more closely track the 
settlement agreement. First, however, I would like to highlight some of 
the major benefits the settlement and S. 2018 provide for everyone.
          the mountain will be preserved and protected forever
    The Pueblo is steadfastly and absolutely committed to protecting 
the Mountain. And we agree that preservation of the wilderness system 
is a national priority. For that reason, the Pueblo has committed to 
perpetual maintenance of the wilderness portions of the Mountain as 
wilderness--with strict adherence to the wilderness laws as they exist 
today. We have agreed that all commercial uses, including of course 
gaming, as well as mineral and timber production, would be forever 
prohibited on all parts of the Mountain. We fear existing laws 
protecting wilderness could change. Our concern is that policy may 
change direction, as has often occurred when Native Americans are 
involved. We want to protect the Mountain not for just the next 25, 50, 
or even 100 years; we want to protect it forever. We therefore feel 
very strongly that perpetual preservation of the wilderness will be 
best served by giving the Pueblo a right to consent to all new uses of 
the Mountain should the Forest Service ever consider permitting new 
uses (which we hope they would not). We are committed to protecting 
this consent power, which is included in both the settlement agreement 
and S. 2018.
 the agreement and legislation both recognize the pueblo's rights and 
                       interests in the mountain
    As noted in the settlement agreement, over 250 years ago the King 
of Spain memorialized our ownership of the Mountain in a written grant. 
This grant was confirmed by the United States Congress in 1858. The 
grant set our eastern boundary as the ``main ridge called Sandia.'' No 
subsequent Act of Congress has ever extinguished our rights in the 
Mountain.
    The settlement and S. 2018 both codify the Pueblo's right to use 
the Mountain to continue our centuries-old traditions. This simple 
acknowledgment, confirmed by the U.S. Department of the Interior as 
recently as last year, is essential to any settlement legislation we 
could support.
 the agreement and legislation will protect and enhance access to the 
                 mountain for the pueblo and the public
    We realize, Mr. Chairman, that Sandia Mountain is not only 
important to the Pueblo, but also to the public at large. We have no 
desire to prevent the public from enjoying the Mountain's beauty and 
serenity. Like the settlement agreement, S. 2018 allows public access 
to all parts of the Mountain. Thus, if S. 2018 passes, hikers, hang-
gliders, and all sorts of other recreation-seekers will be able to 
continue to enjoy the Mountain with the same freedom they do today. In 
fact, the settlement agreement and S. 2018 both enhance access for the 
public by granting permanent rights-of-way over our existing lands to 
trail heads, picnic areas, and the like. This grant of permanent and 
secure access was a major concession made by the Pueblo and cannot be 
achieved through continued litigation.
    We have heard some people criticize the settlement as a dangerous 
precedent. This is not so. We know of no other present situation where 
a National Forest has been mistakenly established on lands owned by an 
Indian tribe, confirmed by an Act of Congress, and where courts have 
recurrently read this very language to convey title to a tribe. Under 
the settlement agreement and S. 2018, the Forest Service would continue 
to administer the Mountain and its wilderness, as it does today, 
notwithstanding our land grant.
   the agreement and legislation both confer specific rights on the 
   parties involved and, as a result, will finally allow us to stop 
litigating over the mountain and to focus on preserving and enjoying it
    Like most area residents who enjoy the Mountain, we want to put a 
long period of litigation and disharmony behind us. We have heard and 
read critics of the settlement agreement complain that the agreement is 
vague and will lead to future litigation. This charge--made by some of 
the same individuals and groups that withdrew from the settlement 
discussions--is simply untrue. There is only one certain way to avoid 
further litigation; that is for Congress to pass ratifying legislation 
by November 15 of this year, when the settlement agreement terminates. 
We are here today precisely because we want to work with you--Chairman 
Bingaman, Senator Domenici, and Members of the Committees--to achieve 
that goal.
    Before S. 2018 is enacted, however, there are several amendments we 
would like to see adopted. These changes would help to make the bill 
more closely reflect the settlement agreement we worked so hard to 
reach with the Government and Tram Company.
    First, we oppose the provision, Sec. 4(c)(3), which gives Sandoval 
and Bernalillo Counties the authority to consent or to withhold consent 
for new uses in the area. It appears that this provision is designed to 
level the playing field since the Pueblo was granted an identical 
consent authority in the settlement agreement and in the bill. Despite 
the superficial appearance of equality, this grant of authority to the 
counties is not justified.
    Unlike the Pueblo, the counties do not have property interests in 
the Mountain. Also in contrast to the Pueblo, the counties do not feel 
any sacred responsibility to protect the Mountain. We do not mean to 
disparage our friends' and neighbors' interest in preserving the 
Mountain for public enjoyment. But not only might public sentiment to 
protect the Mountain change over time--their interest simply cannot be 
compared to the obligation that we feel after centuries of religious 
and traditional practice, nor does it equate to our ownership rights to 
the Mountain.
    More generally, S. 2018 makes a number of other significant changes 
in the settlement the Pueblo agreed to, none of which are favorable to 
our interests. For example, the settlement recognized the Pueblo's 
exclusive authority to regulate hunting by our members on lands within 
the Area owned by the United States, and would have taken into trust 
lands we purchased in the Evergreen Hills subdivision, using several 
million dollars of our own funds. S. 2018 removes these provisions, and 
makes other changes unfavorable for us. We believe the settlement 
agreement should be enacted. If it is not, and if we are forced to 
accept these and other changes S. 2018 makes to the settlement, the 
Pueblo should receive commensurate benefits in return.
    One possibility would be to add a specific land exchange provision 
to S. 2018, building on the concept in Section 14(c). We have discussed 
this approach with Committee staff and a number of parties. Last week, 
the Commissioners of Sandoval County voted unanimously in favor of an 
exchange involving all federal wilderness lands within the Sandoval 
County portion of the claim area. We are willing to consider this and 
other similar land exchange proposals so long as they preserve and do 
not diminish our interests in the Area.
    Finally, I attach a number of other, more technical amendments.
    Before concluding, I would like the Members here to know that we 
are willing to work with the Committees and all parties in good faith 
to fairly and justly resolve the Mountain issue. The years of 
litigation, the settlement negotiations, the legislative efforts to 
date--all have been time-consuming and costly. We want a solution. We 
cannot, however, support any solution. We simply cannot abandon our 
deeply-held beliefs or shirk our sacred responsibilities to generations 
past and generations to come. We are committed to finding a solution 
that provides fairness and justice to the Pueblo. Although it is not 
our preference--as our involvement in the settlement makes clear if 
acceptable legislation cannot be adopted by November 15, we will first 
explore further options for settlement in good faith with the federal 
agencies and Tram Company. If that fails, we will then seek 
implementation of the Solicitor's opinion confirming our title. If we 
are compelled to do so, we will not hesitate to return to the courts, 
where we have been very successful so far.
    Thank you again for calling this hearing and for giving all of the 
affected parties this opportunity to explore a legislative solution. I 
appreciate the opportunity to testify on behalf of the Pueblo of 
Sandia. I would be happy to try to answer any questions the Committee 
might have.

                                APPENDIX

    Section 3(b) should be amended to specify the 100 feet is ``linear 
feet'' and not feet above mean sea level, so that there is no possible 
ambiguity.
    In Section 4(c), a new Section 4(c)(4) should be added reading as 
follows:

        ``Administration of the Area shall not be subject to the Forest 
        and Rangeland Renewable Resources Planning Act of 1974 (88 
        Stat. 476), as amended by the National Forest Management Act, 
        16 U.S.C. Sec. Sec. 1600-1614, or to the Forest Service 
        planning regulations at 36 C.F.R. Sec. 219, or to amendments to 
        these acts and regulations. The Area shall continue to be 
        administered by and remain a part of the Cibola National 
        Forest, but it shall not be subject to the Cibola National 
        Forest Land and Resource Management Plan.''

    The Pueblo needs to be certain the Management Plan is not 
foreclosed by any of these authorities.
    In Section 4(d), the words ``of the Senate'' should be added at the 
end of the second sentence.
    Section 4(e) should be preceded with the language ``Except as 
provided in Section 14 of this Act.''
    At the end of Sections 4(g), add the words ``except as provided in 
Section 14 of this Act.''
    In Sections 5(a)(5) and 9(a), add ``and section 14.''
    Section 6(a)(1) should be preceded by the words ``Except as 
provided in Section 14 of this Act.''
    In Section 6(b), substitute ``section 5(a)'' for ``section 
5(a)(4).''
    In Section 7(b)(2)(C), insert ``of'' after ``use.''
    In Section 9(a), add ``and 14'' after ``8.''
    In Section 10(d), substitute ``within'' for ``with.''

    Chairman Inouye. Thank you very much, Governor Paisano.
    In this settlement, Governor, you are giving up your 
property interest in Sandia Mountain and you have also 
disclaimed any interest in the private land and homes that have 
been built in this area, is that not so?
    Mr. Paisano. Yes, sir.
    Chairman Inouye. What are benefits that this agreement will 
give you or your tribe?
    Mr. Paisano. Mr. Chairman, some of the benefits that the 
Pueblo of Sandia and my community would be able to get from the 
settlement is the name recognition in our native language; it 
would give us a consent for new uses only if the Forest Service 
were ever able to come to the Pueblo and ask us for new 
services. That is so important to my community because we have 
seen what has happened when areas of cultural significance and 
traditional places are threatened by development.
    Chairman Inouye. That is why you want the right to consent 
to new uses?
    Mr. Paisano. That is correct, sir.
    Chairman Inouye. Have you received any interest in new uses 
that concern you?
    Mr. Paisano. No, sir. I believe that the Forest Service, 
and not speaking on behalf of them, but has not received over 
the past 25 years any applications for new uses. From the 
Pueblo of Sandia's behalf, we do not intend to ask for any new 
use services that we would like to see in the mountain range. 
We want to protect and preserve it as it exists today.
    Chairman Inouye. If by some decision here the committee 
decided not to make any changes, would that make you against 
this measure?
    Mr. Paisano. Mr. Chairman, I do not believe so.
    Chairman Inouye. You can live with no change?
    Mr. Paisano. Well, during the settlement, when we initially 
started off this quest, our Pueblo had to take a stance and 
take a look at what we actually wanted and what our goals were. 
Our goal was to protect and preserve this mountain. That is the 
reason why we entered into the settlement agreement, in light 
of some of the things that we had in our back pocket that were 
afforded to us, whether it is a Solicitor's opinion or whether 
it is a court's opinion.
    As common people and Native American people, it is our 
obligation to protect and preserve what has been rightfully 
ours for centuries and a language, a culture, and a tradition 
that we followed for centuries. That is so important to us as a 
people so that we can continue in existence for future 
generations.
    Chairman Inouye. I thank you very much, Governor.
    Senator Campbell.
    Senator Campbell. I was wondering, what is the English 
translation of what you call that land?
    Mr. Paisano. Green Reed Mountain.
    Senator Campbell. One last question, alluding to some of 
the things you already asked, Mr. Chairman. Are there any non-
negotiable issues for the Sandia Pueblo in this negotiated 
agreement?
    Mr. Paisano. I believe in Senator Bingaman's bill, S. 2018, 
there are provisions in there that the Pueblo has been asked to 
concede a little bit more, in light of bringing aboard some of 
the other interested parties with regard to the mountain claim. 
The Pueblo is willing to listen to some of those concerns, but 
when we first started out in the settlement agreement, Senator, 
we started out like this [indicating], and gradually we have 
gone like this [indicating].
    Senator Campbell. So the comment that Senator Domenici made 
a while ago about the Pueblo having veto power over any use, 
that to you is one of the non-negotiable areas?
    Mr. Paisano. Yes, because our goal is to protect and 
preserve it.
    Senator Campbell. I see.
    Thank you, Mr. Chairman.
    Chairman Inouye. Senator Domenici.
    Senator Domenici. Governor, it is good to see you up here. 
I am hopeful that this issue will be resolved in the not too 
distant future and you will have less frowns on your forehead. 
I have not been to your new facilities. Who knows, I may find 
my way up there one of these evenings----
    Mr. Paisano. We will be happy to have you, sir.
    Senator Domenici [continuing]. When we get this resolved.
    There are a couple of things that are bothering outside 
groups. Tell me how you understand the hunting rights in terms 
of what you have agreed to, and who is complaining and what is 
their complaint, if you know?
    Mr. Paisano. Senator Domenici, I am not an attorney and I 
do not intend to be one. Let me speak from layman's terms, I 
guess. With regards to hunting, hunting is very important to 
the Pueblo of Sandia. Hunting is not a sport to us. Hunting is 
part of our culture and our tradition.
    We have asked for hunting rights to be allowed for our 
members and our community because it bears fruit for us. It 
bears a source of food and a sense of healing. It is my 
understanding that hunting has been allowed by the United 
States, by the Forest Service, in this particular area that 
falls underneath the jurisdiction of the State of New Mexico 
under Game and Fish. We have asked the Game and Fish Department 
to allow our members to hunt in this particular area.
    It is my understanding in the settlement and talking with 
the State Game and Fish, they do not have a problem with 
allowing the Pueblo to hunt for traditional cultural purposes. 
They would like to define an area that is not a gray area. They 
want to protect their jurisdictional issues and their police 
powers, they would like a fine line drawn as to where the 
Pueblo members would be allowed to hunt and where they would 
not be allowed to hunt. We believe that we----
    Senator Domenici. As to the rest, the New Mexico Game and 
Fish rules and regulations would govern?
    Mr. Paisano. That is correct.
    Senator Domenici. That is what is being discussed now?
    Mr. Paisano. As we speak, sir.
    Senator Domenici. Okay. Do you know how it is in 2018? Is 
that the way it is, Counsel? or Senator Bingaman?
    [Pause.]
    Senator Domenici. Well, we will look at it. Senator 
Bingaman's expert says it is pretty close to that.
    Senator Campbell. If I might ask, Senator, that means they 
could hunt but not guide non-Indian hunters or something of 
that sort?
    Mr. Paisano. That is correct.
    Senator Campbell. This is only for tribal members.
    Mr. Paisano. Only for tribal members, sir.
    Senator Domenici. Yet there would be hunting for others, 
but that would be totally governed by Fish and Game, New Mexico 
Fish and Wildlife. I assume on that latter, Fish and Game would 
have the jurisdiction to determine whether there is sufficient 
game to be hunted? Sometimes they close areas and the like. You 
recognize that authority with reference to the lands that they 
would be in control of?
    Mr. Paisano. Absolutely, sir.
    Senator Domenici. I have no further questions. I may send 
two or three of them to you, to be answered in due course.
    Chairman Inouye. Governor, we thank you very much, sir.
    Mr. Paisano. Mr. Chairman, Senator Domenici, we look 
forward to working with each and every one of you once again, 
because this is the most important thing to my community and we 
would like some type of resolution so that we can continue 
living in good peace and harmony in the State of New Mexico.
    Thank you.
    Senator Domenici. Thank you.
    Chairman Inouye. Our last panel consists of the following: 
the county commissioner of Bernalillo County, of Albuquerque, 
Mr. E. Tim Cummins; Ms. Anita P. Miller, Esquire, Sandia 
Mountain Coalition of Albuquerque; Mr. Walter E. Stern, 
Esquire, representing Sandia Tram Company, of Albuquerque, New 
Mexico; Mr. Edward Sullivan, executive director, New Mexico 
Wilderness Alliance, of Albuquerque; and Mr. Guy Riordan, 
owner, Piedra Lisa Tract, of Albuquerque.
    Commissioner Cummins, welcome, sir.

 STATEMENT OF E. TIM CUMMINS, COUNTY COMMISSIONER, BERNALILLO 
                    COUNTY, ALBUQUERQUE, NM

    Mr. Cummins. Thank you, Mr. Chairman. Mr. Chairman and 
Senators, Senator as the case may be, as they have left: We are 
deeply grateful for the opportunity you have given the county 
of Bernalillo to appear before this joint committee on an issue 
that is so vitally important to the residents of all our 
community.
    The area claimed by the Sandia Pueblo sits on the east edge 
of the county of Bernalillo, which lies adjacent to the city of 
Albuquerque, the largest city in the State of New Mexico. The 
claim area runs from the east edge of the County of Bernalillo 
at the 5,000-foot elevation all the way to the top of the 
Sandia Mountain at a 10,000-foot elevation. The area claimed by 
the Sandia Pueblo has been used by Native American and non-
Native Americans as a place for spiritual solace, residential 
living, recreation, and many other uses for many years.
    The county of Bernalillo, the Sandia Mountain Coalition, 
the Pueblo all agree that there should be the preservation of 
the land, access by the Pueblo for traditional and cultural 
purposes, no new commercial development of the national forest 
lands within the claim area, permanence of the agreements, an 
end to litigation, and presentation of these shared goals to 
you.
    The county itself has consistently fought--sought, I am 
sorry--final settlement of the Sandia Pueblo claims to the 
title area, be they past, present, or future, equal rights to 
public access, recreational use and management of the forest, 
maintenance of the character of the area, confirmation in 
perpetuity of public right of way, roads easements, including 
access easements to accommodate future utility and 
communications technology, a guarantee of clear title to the 
subdivision home owners and subdivision land owners, and 
recognition of county authority over subdivisions within the 
area, such as zoning, public safety, including police and fire 
services, environmental issues, including water, waste water, 
and taxation.
    However, the county of Bernalillo and the Pueblo of Sandia 
differ on the means to the end and differ on the language to be 
used in the documents to effect these goals. With regard to S. 
2018, the county of Bernalillo recognizes it as an attempt to 
further close the gap that still exists between the county and 
the Sandia Pueblo with regard to total settlement of the issues 
regarding equitable use of the claim area by all parties.
    This issue has been discussed and debated since 1988. We 
now have the opportunity to settle these issues with 
permanence. Although S. 2018 contains many items the county of 
Bernalillo has requested and agreed to, there are still some 
issues we feel are necessary to make the legislation work with 
permanence. By permanence, we mean without resort to the 
courts.
    One, the veto power over uses by the county of Bernalillo 
unilaterally, the county of Sandoval unilaterally, or Sandia 
Pueblo unilaterally is of great concern to us. Any of these 
three parties can veto a new use by themselves. There is no 
further discussion or appeal process provided for in the veto 
power.
    Several questions come to mind. What is a new use? We have 
certainly talked with Senator Bingaman's staff and Senator 
Domenici's staff about how important it is to define what new 
uses are so that we know exactly what the veto rights might 
pertain to. Is providing handicapped access to a parking area 
considered a new use or not? Is providing handicapped access to 
existing trails new uses or not? We have questions regarding 
what new uses are, and right now there is no limitation to 
that.
    Two, the county of Bernalillo feels strongly that this 
settlement agreement and the management act be decoupled from 
the legislation. Let me explain this. Whenever the county of 
Bernalillo, the city of Albuquerque, or the Sandia Mountain 
Coalition and the Pueblo sat together in the final days of the 
mediation effort, we all agreed on the issues. We all agreed 
verbally and we have agreed many times since then. However, 
when the agreed-to resolutions of the issues were placed on 
paper the parties could not agree on the language due to 
obvious ambiguities that still existed.
    We in effect would be turning over the claim area in fee 
simple to the Pueblo of Sandia in future years with the 
language that was in the settlement agreement. The Pueblo would 
not change any of the language, which left us no alternative 
but to leave the mediation. That language still has not changed 
in the settlement agreement or the management act.
    We think the legislation presented here should be the 
controlling document. Some examples are: the word ``trust'' in 
the title and within the document, without definition. Although 
some of the language has changed in the legislation, there are 
still places where language is still not parallel for the 
public and for the Pueblo of Sandia. We cite some in my 
testimony.
    As everyone who has spoken today, I would certainly hope 
that our written comments would be incorporated into the record 
as well as my oral comments.
    [The prepared statement of Mr. Cummins follows:]
      Prepared Statement of E. Tim Cummins, County Commissioner, 
                   Bernalillo County, Albuquerque, NM
    Chairman Bingaman and Senators: We are deeply grateful for the 
opportunity you have given the County of Bernalillo to appear before 
this Senate Committee on an issue that is so vitally important to all 
residents of our community. The area claimed by the Sandia Pueblo sits 
on the east edge of the County of Bernalillo within which lies the City 
of Albuquerque, the largest city in the State of New Mexico. The Claim 
Area runs from the east edge of the County of Bernalillo at a 5000-foot 
elevation all the way to the top of the Sandia Mountain at a 10,000-
foot elevation.
    The area claimed by the Sandia Pueblo has been used by Native 
American and non-Native Americans as a place for spiritual solace, 
residential living, recreation, and many other uses for many years. The 
County of Bernalillo, the Sandia Mountain Coalition, and the Pueblo 
agree that there should be preservation of the land, access by the 
Pueblo for traditional and cultural purposes, no new commercial 
development of National Forest lands within the Claim Area, permanence 
of the agreements, an end to litigation, and presentation of these 
shared goals to you.
    The County itself has consistently sought final settlement of the 
Sandia Pueblo claims to title of the area, be they past, present or 
future; equal rights to the public for access, recreational use and 
management of the forest; maintenance of the character of the area; 
confirmation in perpetuity of public right-of-way, roads and easements, 
including access easements to accommodate future utility and 
communication technology; a guarantee of clear title to subdivision 
homeowners and subdivision landowners, and recognition of County 
authority over subdivisions within the area such as zoning, public 
safety including police and fire services, environmental issues 
including water and wastewater, and taxation.
    However, the County of Bernalillo and the Pueblo of Sandia differ 
on the means to the end and differ on the language to be used in the 
documents to affect these goals.
    With regard to Senate Bill 2018, the County of Bernalillo 
recognizes it as an attempt to further close the gap that still exists 
between the County and Sandia Pueblo with regard to total settlement of 
the issues regarding equitable use of the Claim Area by all parties. 
This issue has been discussed and debated since 1988 and we now have 
the opportunity to settle the issues with permanence.
    Although Senate Bill 2018 contains many items that the County of 
Bernalillo has requested and agreed to, there are still some issues 
that we feel are necessary to make the legislation work with 
permanence. By permanence, we mean without resort to the courts:

    1. The veto power over new uses by the County of Bernalillo 
unilaterally, the County of Sandoval unilaterally, or Sandia Pueblo 
unilaterally is of great concern to us. Any of these three (3) parties 
can veto a new use by themselves. There is no further discussion or 
appeal process. Is a handicapped ramp a new use? Is a new trail a 
``new'' use? (p. 7, Sec. 5(a)(3)).
    2. The County of Bernalillo feels strongly that the Settlement 
Agreement and the Management Act be ``decoupled'' from the legislation. 
Let me explain this.

    Whenever the County of Bernalillo, the City of Albuquerque, the 
Sandia Mountain Coalition, and the Pueblo sat together in the final 
days of our mediation efforts, we all agreed on the issues. However, 
when the agreed-to resolutions of issues were placed on paper, the 
County of Bernalillo, the City of Albuquerque, and the Sandia Coalition 
could not agree to the language due to obvious ambiguities in the 
language that still existed. We, in effect, would just be turning over 
the Claim Area in fee simple to the Pueblo of Sandia in future years 
with that language. The Pueblo would not change any of the language 
which left us no alternative but to leave the mediation. That language 
still has not changed in the Settlement Agreement and the Management 
Act. We think the legislation presented here should control.
    Some examples of this are:

          a) The use of the word ``Trust'' without definition. (Define 
        ``Trust'' on page 4, Section 3 (o.))
          b) Although some of the language has been changed in this 
        legislation, there are still places where language is still not 
        ``parallel'' for the public and the Sandia Pueblo. Section 
        4(a)(1) and 4(a)(3) on page 6 should state that we recognize 
        and protect in perpetuity the Pueblo's rights, interests and 
        uses in and to the Area. Section (a)(3) should also read we 
        recognize and protect in perpetuity the public's longstanding 
        rights, interests, and uses in and to the Area.

    3. The Act states there is no exemption from applicable federal 
wildlife protection laws but an exemption to that exemption does not 
allow prosecution if a person exercises traditional and cultural use 
rights. For safety and other purposes, particularly sport hunting, how 
broad is this? (p. 11, Sec. 6, lines 11-25)
    4. There is always complexity involved when discussing and setting 
criminal and civil jurisdiction. Certainly this places unwary residents 
in a very difficult position. The County thinks the present system of 
criminal jurisdiction would work best. The Sandia Pueblo should only 
have jurisdiction over crimes classified as misdemeanors. The Sandia 
Pueblo should have no jurisdiction over crimes committed by non-Native 
Americans. (p. 12, Sec. 7)
    The County of Bernalillo, again for safety of all residents, has 
concerns regarding jurisdiction over sport and recreation hunting. We 
think that the Pueblo's regulations being ``substantially similar'' to 
those of New Mexico State Game and Fish is going to be problematic. Who 
will enforce these ``substantially similar'' regulations? (p. 14, Sec. 
7(b)(3)(B)) This sport and recreational hunting Section may have to 
have its own separate civil and criminal jurisdiction ``spelled out.''
    5. I believe all parties should have their attorneys fees 
reimbursed for working on these issues that have benefited the general 
public. I understand there is past precedent to do this with these 
types of issues.
    There are other issues such as the non-applicability of new federal 
laws or amendments to existing federal laws that will not apply to the 
Claim Area (p. 7 and p. 9); the payment of money to the Pueblo should 
Congress ever diminish the wilderness of the Claim Area (p. 10, lines 
17-25); and the withdrawal of the Leshy opinion and the vacation of 
Judge Greene's opinion.
    It is very disturbing to the County of Bernalillo that we have been 
led to a resolution of these very important issues based on court 
decisions that were never the result of any hearing on the merits of 
the claim.
    However, in the spirit of cooperation, we merely ask that this 
legislation be developed in a manner that will allow all residents of 
Bernalillo County, the City of Albuquerque, the Pueblo of Sandia, and 
other jurisdictions, permanent and equal access to the Claim Area for 
each of their legitimate purposes. This will allow all of us to live in 
harmony as we have for so many years.

    Chairman Inouye. You may be assured that all of your 
prepared statements are made part of the record.
    Mr. Cummins. Thank you very much.
    But there are differences in the settlement agreement where 
interests and uses in and to the property ``pertain'' to one 
party, and for the other party they are ``recognize and protect 
in perpetuity.''
    There are differences in the language that caused us 
concern and that certainly we think can be resolved by letting 
the legislation be the controlling act.
    The act states there are no exemptions from applicable 
Federal wildlife protection laws, but an exemption to that 
exemption does not allow for prosecution if a person exercises 
traditional cultural use rights. For this, safety, and other 
purposes, particularly sport hunting, how broad is this?
    The issue which has been questioned here today is that of 
concurrent jurisdiction. Our reading and understanding of the 
legislation is that it certainly provides for concurrent 
jurisdiction, and there are always some complexities of that. 
Who has jurisdiction? We are talking about for specifically 
misdemeanors, as Federal felonies are all matters of district 
court. But for misdemeanors, do tribal police have authority 
over other nontribal Indian tribe members or members of non-
Indian tribes altogether? There are those issues that revolve 
around concurrent jurisdiction.
    The county of Bernalillo, again for the safety of all 
residents, has concerns over jurisdiction for sport and 
recreational hunting. We think that the Pueblo's regulations 
being substantially similar to those of New Mexico State Game 
and Fish is going to be problematic. Who will enforce 
``substantially similar'' regulations? We think that is a 
difficult term. The sport and recreational hunting section may 
have to have its own separate civil and criminal jurisdiction 
spelled out.
    In terms of compensation, and there are several precedents 
that I think some of the parties will speak about, I would hope 
that all the parties have their attorneys' fees reimbursed for 
working on these issues that have benefited the general public. 
I understand there is past precedent to these issues.
    There are other issues, such as the nonapplicability of new 
Federal laws or amendments to existing Federal laws that will 
not apply to the claim area; the payment of money to the Pueblo 
should Congress ever diminish the wilderness of the claim area; 
and the withdrawal of the Leshy opinion and vacation of Judge 
Greene's opinion.
    I guess in wrapping up our position, there is the past, the 
present, and the future. As far as the past is concerned, I 
appreciate Senator Bingaman's comments. There is not much we 
can do about the past, but our only concern is that this case 
has never been heard on the merits.
    I think in the present, in the spirit of cooperation, we 
ask the legislation be developed in a manner that will allow 
all the residents of the city of Albuquerque, the Pueblo of 
Sandia, and other jurisdictions permanent and equal access to 
the claim area, and we believe it is important that this issue 
be resolved legislatively.
    In closing, I would like to comment. I believe that--and I 
know that in hearings and in situations everyone focuses on the 
differences that we have, but I think it is important to 
realize that we have agreed on probably 90 percent of the 
issue. I think this issue can be very close to being resolved. 
We certainly do appreciate the Pueblo's efforts and the 
concessions they have made, and they have made genuine 
concessions on the issue. I hope that we can move forward and 
close the remaining gap of what our concerns are.
    Thank you, Mr. Chairman.
    Chairman Inouye. I thank you very much, Mr. Commissioner.
    May I now recognize Ms. Miller.

    STATEMENT OF ANITA P. MILLER, CO-CHAIR, SANDIA MOUNTAIN 
                   COALITION, ALBUQUERQUE, NM

    Ms. Miller. Thank you, Mr. Chairman. Senator Inouye, 
Senator Domenici, and representatives of the other Senators 
present: We are very grateful for the opportunity to appear 
today on behalf of the Sandia Mountain Coalition on this issue 
of major importance to our members, to Bernalillo County, and 
all of those who enjoy the Sandia Mountain and its wilderness.
    I would like to introduce Bill Kiley, who is my co-chair of 
the Sandia Mountain Coalition who has come with me today.
    We have always sought a fair legislative settlement that 
respects the Pueblo's reverence for the mountain, its cultural 
use of the mountain, and its fears of overdevelopment, which 
are all interests which we share as well. We do not want to see 
a settlement or legislation go down at the expense of private 
property rights or the public interest.
    Our goals have always been to make sure that the title to 
private property is cleared. It is now under a cloud. We want 
road and utility access. It is not now guaranteed. We would 
like to have our own access and the access of the general 
public guaranteed forever. We want permanent settlement of 
these issues.
    I want to thank Senator Bingaman for addressing these 
issues. Three out of the four we believe have been resolved. 
The fourth issue is the issue of permanence and that is what I 
am going to speak to today.
    Who are we? We are an unincorporated association of 
property owners whose land is within the exterior boundaries of 
the Sandia claim area. You can see on the model there, the 
little squares are where we are. Sandia Heights North 
subdivision and Tierra Monte are in Bernalillo County, 
represented by Commissioner Cummins. The Evergreen Hills 
subdivision is a subdivision that is largely unoccupied. It is 
in Sandoval County and has no utilities, although it does have 
access.
    Other members are residents of Bernalillo County who are 
recreational users of the forest, and of course we also 
represent to some extent Mr. Riordan who will be testifying 
later, but only as a general policy owner.
    We have been under a cloud since the claim was first 
asserted formally in 1988. It takes us longer to sell our homes 
than other homes which are similarly situated. We are getting 
less money for our homes. We are 16 years older. We want this 
settled so that we can go on with our lives.
    We have been considered mere intervenors in the legislation 
by the Justice Department. That we did not sign the settlement 
agreement is considered to be irrelevant. But we know--as a 
lawyer, I know--that all parties to litigation have to sign a 
settlement to make it relevant.
    We live there. We want no ambiguity. We want permanence. We 
have supported Dr. Hordes' opinion on the merits. However, he 
has gone into that quite well. I will not go into that right 
now.
    We also cannot believe that Congress intended that the 
Secretary of the Interior pursuant to FLPMA could correct a 
boundary in an Indian claim when the remedies for such claims 
have been established under the Indian Claims Commission Act 
quite specifically to extend also to title issues where 
compensation was not desired, as well as to compensation 
issues.
    We have one other question. We would like to know why the 
Pueblo of Sandia did not make known its claim to the area at 
the time the subdivisions were created back in the 1960's and 
1970's. They facilitated the very development that brought us 
there in the first place. If they had said, this is our land, 
your title is faulty even though it came from a Federal 
homestead, this is our land, we would not be here today. I sure 
would not be here today. And I would have hoped that at that 
point they would have raised that issue. They had 
representation at that time by attorneys and it really would 
have helped an awful lot if they had said, this is really our 
land, we are not going to give you access, utility access, or 
water or land on which to put a water system.
    Okay, that is the past. Here is the present and the future. 
As for S. 2018, we would have preferred a land readjustment 
partition, which is in the record of the materials that I 
submitted to you. We would have preferred something in the line 
of what happened with Santa Clara in the Vayez Caldera, some 
kind of conservation easement, some kind of land exchange 
scheme that has been done before with other tribes and pueblos.
    However, that is not on the table today. So let me go on 
from there. We generally support S. 2018. Like Commissioner 
Cummins, we still have concerns, however. We would like a 
definition of the word ``trust'' as appears in the title to 
distinguish it from the use of ``trust'' later in the act when 
various lands acquired by the Pueblo in fee are to be placed 
into trust.
    We have problems with the consent to new uses, as does 
Senator Domenici, based on the fact that these new uses are not 
necessarily defined. Define those new uses and I think we will 
be fine, such as the fire breaks, perhaps handicapped trails, a 
corral for diseased animals could be things that very, very 
well could come up in the near future. Are they new uses? Are 
they modifications? Are they exempt? That is the sort of 
definitions we would like.
    We too would like to have separated from the legislation 
the old settlement. We do not want to see that or the 
management agreement incorporated. We got here because of 
ambiguities. To incorporate immediately into a piece of 
legislation documents which are from their very beginning 
inconsistent would be creating the opportunity for years and 
years of discussion as to what is consistent and what is not. 
Pass the bill, then rework the settlement agreement and the 
management agreement to reflect that.
    We too would like to have reimbursement of the costs that 
have been spent by both parties. Senator Domenici, you are 
right, we have been bled dry. We would like very, very much to 
have our people reimbursed.
    We would also like to see Judge Greene's opinion vacated as 
well as the Court of Appeals decision vacated and, if possible, 
although I do not know if it is possible, we would like to see 
Solicitor Leshy's opinion vacated as well.
    We have lots of other issues that concern us. They are not 
particularly our issue. We do have concern with the overlapping 
jurisdiction and the fact that the tribe in a precedential 
situation would be having jurisdiction over both non-Indians 
and non-members of the Sandia Pueblo. But that is not 
necessarily my major issue.
    What do we like? We like the efforts to get more parallel 
language. We like the fact that there is now a map included in 
the bill that we could point to whenever there is a boundary 
description. We like the limitation of hunting and trapping to 
religious and cultural uses and not to sport and recreational 
uses. We like the possibility of a land exchange to consolidate 
holdings. That is something we have always advocated.
    In conclusion, the Sandia Mountain Coalition seeks a 
permanent legislative solution for the Sandia claim which 
recognizes the rights and the interests of all of the parties. 
We hope that you will take our concerns into consideration to 
resolve this matter so that all of us can go on with our lives 
and enjoy Sandia Mountain, which we believe belongs to all of 
us.
    Thank you so much for the opportunity to talk to you.
    [The prepared statement of Ms. Miller follows:]
   Prepared Statement of Anita P. Miller, Co-Chair, Sandia Mountain 
                       Coalition, Albuquerque, NM
    Mr. Chairman, Senator Bingaman, Senator Domenici, Senators: We are 
deeply grateful for the opportunity which you have given the Sandia 
Mountain Coalition to appear before these Senate Committees on an issue 
that is so vitally important to our members and all residents of 
Bernalillo County and the City of Albuquerque, New Mexico. We hope that 
our testimony on S. 2018 will assist you in formulating a permanent 
solution to the Sandia Pueblo Claim.
                              introduction
    The Sandia Mountain Coalition (hereinafter ``SMC'') has always 
sought a fair settlement of the claim of the Pueblo of Sandia to land 
on the West face of Sandia Mountain. Its members share the Pueblo's 
reverence for the mountain, and its fears that its Wilderness will be 
overused and overdeveloped. It continues to believe that the Sandia 
claim is without merit, but is willing to make compromises in order to 
resolve a controversy which has existed for 16 years, creating 
uncertainty and animosity and exhausting financial resources.
    The SMC will accept a settlement which includes the following:

   Clear title for all private property within the exterior 
        boundaries of the claim;
   Dedicated access to Bernalillo County for roads and both 
        present and future roads and utilities;
   Guaranteed public access to the Forest and Wilderness within 
        the claim area;
   Permanence.

    The Coalition continues to work closely with Bernalillo County in 
achieving its settlement goals. It has been represented by the same 
attorneys, and has submitted joint analyses of proposed settlement 
documents and legislation.
    The SMC and Bernalillo County generally support S. 2018, introduced 
by Senator Jeff Bingaman. The comments which they have submitted 
reflect their opinion that there are still remaining ambiguities in the 
bill which may lead to future litigation and controversy, thwarting 
their goal of achieving a permanent settlement. They have always looked 
beyond their immediate interests in their concern that a settlement 
also address the public interest and not create precedents which might 
have negative impacts on public and private land throughout New Mexico 
and the United States.
I. What Is the Sandia Mountain Coalition?
    The Sandia Mountain Coalition (hereinafter ``SMC'') is an 
unincorporated association of property owners whose land is within the 
external boundaries of the claim of the Pueblo of Sandia to 
approximately 10,000 acres of land in the Cibola National Forest, which 
includes 8,900 acres in the Sandia Mountain Wilderness. The claim 
originally also included 655 acres of private land, but the Pueblo has 
excluded the private property from its claim in the litigation which it 
filed and in the settlement which it signed with the United States 
Departments of the Justice, Interior and Agriculture and the Sandia 
Peak Tram Company.
    The subdivisions of Sandia Heights North and Tierra Monte, in 
Bernalillo County, and Evergreen Hills, in Sandoval County, are within 
the external boundaries of the claim. About 85% of the property owners 
in these subdivisions are members of the Coalition. Evergreen Hills 
Subdivision is located to the North of Tierra Monte, over the Sandoval 
County line. It has no utilities, and the few houses on its lots are 
served by on site water and power and cellular telephones. The SMC 
represents the general interests of Evergreen Hills property owners; it 
does not represent them in efforts to attain an extension of utilities 
to their properties.
    There is one remaining large inholding in Sandoval County, the 
Piedra Lisa Tract, which is now owned by Guy Riordan. The also 
represents Mr. Riordan concerning his general interests as an inholder 
within the Claim; it does not represent him concerning his efforts to 
attain road and utility access to his property. The SMC's membership 
also includes recreational users of the public land at issue in the 
claim and Albuquerque area citizens.
    Property owners in the subdivisions represented by the Coalition 
have had difficulty selling their homes and/or vacant property. They 
have had to accept lower sales prices that those received by owners of 
comparable property in Sandia Heights South, outside the exterior 
boundaries of the claim. The owners are aging and would like 
flexibility concerning the disposition of their property which they 
will not completely enjoy until all clouds are removed from their land 
in a permanent settlement of this controversy.
II. Legislative Initiatives and S. 2018
    The SMC and Bernalillo County support many of the amendments made 
to the original settlement reached in mediation, as reflected in S. 
2018, but still has concerns about some of its provisions.
    The SMC urged the New Mexico Congressional Delegation to introduce 
legislation to settle the Sandia claim once and for all. The SMC 
continues to believe that the claim is without merit, but believes that 
the Pueblo's longstanding cultural use of the claim area should be 
recognized. On December 11, 2001, it informed former Regional Forester 
of the Southwest Region of the United States Forest Service, Eleanor 
Townes, and a member of New Mexico Senator Pete Domenici's staff, in a 
meeting held to try to resolve the outstanding settlement issues, that 
it preferred a settlement which might effect a ``land readjustment'' or 
``partition'' the claim area, providing for a purchase or exchange in 
which the Pueblo might acquire additional acreage from the Forest 
Service adjacent to its existing boundaries.
    It also has advocated that the Pueblo might acquire a property 
interest in the nature of a ``conservation easement'' in the entire 
Claim Area, which could limit future development of the Area, similar 
to that acquired by the Santa Clara Pueblo in the Baca Location No. 1, 
now part of the recently created Valles Caldera National Monument in 
New Mexico.
    Anita Miller also briefly summarized this memorandum in a meeting 
with Senator Bingaman a few weeks later which was held to introduce 
Senator Bingaman's original draft of what is now S. 2018, and presented 
it to his staff at that meeting. A copy of the memorandum is attached 
to this Testimony as Appendix 1.*
---------------------------------------------------------------------------
    * The appendixes have been retained in committee files.
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    The SMC would also support giving the Pueblo of Sandia the 
opportunity to assert its claim in the U.S. Claims Court, through a 
``reopening'' of the ICCA, and receive compensation in the event that 
it is successful. Congress enacted a law which enables the Pueblo of 
Isleta to follow this procedure. These options are not currently on the 
table, however.
    In January, 2002, New Mexico Senator Jeff Bingaman contacted the 
SMC and invited its representatives to meet with him to review a bill 
which he had drafted. The bill reflected the settlement legislation 
which was drafted during the mediation. The SMC was asked to comment on 
the bill. Many of its suggestions are reflected in S. 2018, introduced 
by Senator Bingaman in March. We generally support the bill.

   We are gratified that the bill now will incorporate a map, 
        which will be referred to whenever a specific reference is made 
        to property within the T'uf Shur Bien Preservation Trust Area.
   We are glad that the specific rights-of-way which will be 
        dedicated by the Pueblo to Bernalillo County and to the Forest 
        Service are specifically described in the bill.
   We appreciate the addition of ``parallel'' language in 
        Section 4 (a), which ``recognizes and protects in perpetuity'' 
        the Pueblo's rights and interests in and to the Area, and the 
        public's longstanding use and enjoyment of the Area, although 
        we would have preferred that the public's ``rights and 
        interests in and to'' the Area would have been recognized as 
        well.
   We are pleased that the provisions regarding the criminal 
        and civil jurisdiction of the Pueblo have been clarified, 
        although still have some concerns with the extent of this 
        jurisdiction and the precedents it might set.
   We are relieved that the Pueblo's jurisdiction over hunting 
        and trapping has been reduced and will have more oversight by 
        the New Mexico Game and Fish Department.
   We particularly like the provision which authorizes an 
        exchange of private land acquired by the Pueblo for other 
        Forest land, in order to eliminate ``pockets'' of Indian trust 
        land within the Forest and Wilderness.

    We continue to have the following major concerns about S. 2018:

   We would like a definition of the word ``trust'' as used in 
        the Title of the Act and the Title of the Area, distinguishing 
        it from the usual meaning of trust as it applies to the 
        relationship between the Department of the Interior and Indian 
        tribes.
   We would prefer that the Pueblo did not have a ``veto 
        power'' (right to ``withhold consent'') over new uses in the 
        Area. Giving Bernalillo and Sandoval Counties veto powers which 
        have never been requested does not resolve that issue. We would 
        accept a definition of what constitutes ``new uses'' and what 
        ``new uses'' might be exceptions from the veto power, e.g. Is a 
        handicapped trail a ``new use?''
   Would the construction of a corral in order to quarantine 
        diseased deer by a ``new use''?
   We would like to see the Settlement Agreement and Management 
        Agreement, which are now incorporated into the bill, be 
        ``decoupled''. The bill should be passed first; then the other 
        documents can be amended to be made consistent. It is alleged 
        ``ambiguities'' in Pueblo Grant documents which resulted in 
        this controversy in the first place; to incorporate 
        inconsistent documents in settlement legislation would create 
        new ambiguities before the settlement even got off the ground.
   We would like to see all parties reimbursed for the expenses 
        incurred during the pendency of this matter, including 
        attorneys fees. There is precedent for such reimbursement in 
        the matter which involved the claim of the Santa Domingo Pueblo 
        against public land and private land owned by the Dunagan 
        family. The Dunagans were reimbursed.
   We would like to see the bill specifically vacate the 
        District and Court of Appeals Opinions in the Sandia Claim 
        litigation and the withdrawal of the Leshy Opinion.

    In the comments which we submitted to Senator Domenici, which are 
included with this testimony as Appendix 2, there are other suggestions 
for improving the bill, some of which are of greater concern to others 
who will offer testimony before the Senate Committees. We hope that S. 
2018, with at least some of our additional suggested amendments, will 
be passed by Congress, and that a final settlement of the Sandia Claim 
will be achieved.
III. Institutional History of the Claim, from Anita Miller's 
        Perspective
    I am one of a few residents of Sandia Heights North Subdivision who 
has been actively involved in the claim issue since it was first made 
public in 1986. I have outlasted two other co-chairs of the SMC, two 
other Bernalillo County Commissioners, at least two Secretaries of 
Agriculture, Regional Foresters, two Cibola National Forest Rangers, 
two Secretaries and Solicitors of the Department of the Interior, two 
United States Representatives, and at least three Governors of the 
Pueblo of Sandia who have been actively involved in the case over the 
years.
    My husband and I purchased our lot in Sandia Heights North, at 223 
Spring Creek Lane, in the late 1970's, exchanging a lot which we had 
purchased in 1975 in Sandia Heights South for the lot in Sandia Heights 
North. We completed building our home in 1981. We received title 
insurance for our lot. We recognized that we had to access our lot over 
the existing Sandia Pueblo Reservation, and that our water supply came 
from a well located on the Reservation, as well.
    We were not aware that our road and utility access was covered in a 
``business lease'' between the Pueblo, and was not a recorded easement. 
We were also not aware that the Forest Service had never acquired an 
easement over a portion of the Pueblo of Sandia which accessed the 
neighboring Tierra Monte and Evergreen Hills Subdivisions, the Juan 
Tabo and La Cueva Picnic Areas, and the La Luz and Piedra Lisa Trails. 
At no time were we told that the Pueblo of Sandia claimed land in 
Sandia Heights North.
    It is particularly relevant, in the context of the discussion below 
of the Pueblo's failure to assert its claim prior to 1983, that the 
Pueblo, by giving the Sandia Peak Tram Company access over existing 
Pueblo land and a lease to construct a well on Pueblo land to provide 
water to the Sandia Heights subdivisions, actually enabled development 
to occur. Had it asserted its claim to that land in a timely manner, 
the subdivision would never had been built, and I and other members of 
the SMC would not have had to become involved in this matter.
    Similarly, the Pueblo enabled the development of Tierra Monte 
Subdivisions by granting an easement to local electric and telephone 
uglifies through Pueblo land. It never has given permission to extend 
this easement to serve Evergreen Hills, however. The Pueblo certainly 
had ``notice'' that something was going on which was inconsistent with 
any historic entitlement it might have had to the land being developed 
within the claim area.
    In the early 1980's, the Tram Company attempted to trade land which 
it owned in the foothills of the City of Albuquerque, south of Sandia 
Heights, for land in the Cibola National Forest, known as ``La Cueva,'' 
to the West of Sandia Heights North. This trade would have provided 
more convenient access to Sandia Heights North, Units 2 and 3, and 
would also have opened contiguous land to development. The Sierra Club 
and other environmental groups opposed the exchange and the development 
which would have resulted. It contacted the Pueblo of Sandia and urged 
its opposition to the exchange, as well. The rest is history.
    The Pueblo then sought assistance from the Department of the 
Interior, and retained historians and anthropologists who concluded 
that the Pueblo not only should have received the La Cueva tract when 
it received its patent from the United States, but the additional 
acreage it subsequently claimed on the west face of Sandia Mountain, 
including the private inholdings.
    A draft opinion, written by an Assistant Solicitor in the 
Washington office of the DOI, Tim Vollmann, concluded that the Pueblo's 
patent from the United States should have included the land claimed was 
sent to the Forest Service for review. The draft opinion concluded that 
the Secretary of the Interior should correct the Pueblo's patent to 
include the area claimed. The Forest Service circulated the report to 
all property owners within the claim area, among other affected 
parties.
    The property owners within the three subdivisions organized the 
SMC, and proceeded to hire historian Frank Wozniak and Anthropologist 
Matthew Schmader (now anthropologist for the City of Albuquerque) to 
research the historic basis for the Pueblo claim, as well as to 
physically inspect the landmarks noted in the historical documents 
reviewed. They concluded that the claim was without merit. The SMC 
retained Attorney Carol Dinkins, former Deputy U.S. Attorney General 
for Natural Resources, of the Houston firm of Vinson and Elkins, to 
represent it, and was joined by Bernalillo County in its opposition to 
the claim. Bernalillo County was concerned with the impact which the 
claim, if successful, would have on County jurisdiction, revenues and 
services, and on County citizens who would find themselves in ``Indian 
Country.''
    New Mexico Senator Pete Domenici and then-Congressman Manuel Lujan 
also opposed the claim. The Forest Service had done its own historic 
research and concluded that the claim was without merit.
    In 1987, representatives of the SMC and Bernalillo County, along 
with members of Senator Domenici and Representative Lujan's staff, met 
with then Secretary of the Interior Donald Hodel in Washington. 
Solicitor Leshy, as well as representative of the BIA were in 
attendance. The SMC and County made a presentation and submitted 
historic and anthropological reports.
    On December 14, 1988, then-Solicitor Ralph Tarr issued an Opinion 
concluding that the Sandia Claim was without merit. We were told that 
Solicitor Tarr conducted his own historical research and wrote the 
opinion himself, but cannot substantiate this.
IV. The Tarr Opinion
    The SMC and Bernalillo County supported the Tarr Opinion, which it 
believed correctly addressed the merits of the Pueblo of Sandia's claim 
and jurisdictional issues involving the failure of the Pueblo to assert 
the claim in a timely manner. It believed that this Opinion would end 
the controversy.
    The Tarr Opinion cited the Pueblo's original Spanish grant 
documents, still in the Pueblo's possession, as well as documents 
describing the survey of the Pueblo's boundaries by the United States 
in 1859 and concluded that the eastern boundary of the Pueblo was 
basically correct and should not be changed. It refuted the Pueblo's 
evidence to the contrary, finding it inconclusive in the context of all 
of the documents comprising the Sandia Pueblo Grant.
    Solicitor Tarr also reviewed the Pueblo's failure to assert its 
claim to the west face of Sandia Mountain before the Pueblo Lands 
Board, as well as before the Indian Claims Commission, created by 
Congress for the settlement of outstanding Indian claims. He stated 
that the Pueblo had been on notice about federal and private actions 
taken with respect to the land claimed, such as the reservation of the 
land for a national forest, the actual forest designation, the 
designation of the Sandia National Wilderness in 1979 and the 
development of the subdivisions, but had failed to assert its claim.
    Solicitor Tarr concluded that the claim was barred by the Quiet 
Title Act, 28 U.S.C. Section 409, since it had not been brought within 
the 12 year period, after notice of the claim, for bringing asserting 
claims against the United States involving real property. He 
particularly cited Navajo Tribe v. State of New Mexico, 809 F. 2d 1455 
(10th Cir. 1987) in concluding that the claim was barred since the 
Pueblo had not asserted it under the Indian Claims Commission Act, 25 
U.S.C. Section 70. (``ICCA'') He stressed that the ICCA was intended to 
dispose of Indian claims which existed before 1946 once and for all, 
including claims before administrative agencies. The sole remedy 
available to tribes was monetary damages. Although the Pueblo's counsel 
had justified the Pueblo's failure to assert a claim under the ICCA by 
alleging that money couldn't compensate the Pueblo for the loss of its 
land, the Tarr Opinion concluded that the Pueblo had no other remedy.
    Tarr also concluded that the Secretary of the Interior's authority 
under the Federal Land Policy and Management Act, (``FLPMA''), 43 
U.S.C. Section 1746, passed in 1976, to ``correct patents or documents 
of conveyance relating to the disposal of public lands where necessary 
in order to eliminate errors'' could not be used . . . to revive stale 
historical claims which Congress has expressly barred by Section 12 of 
the ICCA. (emphasis added). The authority to correct errors also did 
not extend to a claimed misreading of the scope of a grant, which was 
the issue before Interior in the Sandia Pueblo Claim.
V. Litigation
    In 1994, during the first Clinton Administration, the Pueblo 
requested that Secretary of the Interior Bruce Babbitt withdraw the 
Tarr Opinion. Solicitor Leshy studied the matter and recommended that 
it not be withdrawn. The Pueblo sued the Department of the Interior 
seeking to compel the Department of the Interior to correct its patent, 
and to restrain the Department of Agriculture from interfering with the 
``correction'' of the Pueblo's boundaries. Pueblo of Sandia v. Bruce H. 
Babbitt, et al., Civ. No. 94-2624, July 20, 1998. The Pueblo included 
the private inholdings, including the subdivisions, in the map 
depicting the claim area which was included with the complaint. When 
the SMC and Bernalillo County successfully moved to intervene in the 
case, the Pueblo amended its complaint to exclude the private land from 
its claim.
VI. The Hordes Report
    The SMC and Bernalillo County continue to believe that the historic 
analysis of the Pueblo's claim by Stanley Hordes, Ph.D. is correct.
    To reinforce its position in the litigation that the Pueblo's claim 
was without merit, the Department of Agriculture retained historian 
Stanley Hordes, Ph.D., who had formerly been the New Mexico State 
Historian, to do additional research. Dr. Hordes did exhaustive 
research finding additional documents from the Spanish Colonial Period 
which supported his conclusion that the Pueblo was granted a ``formal'' 
Pueblo of four square leagues, and that the northern and southern 
boundaries of the Pueblo were extended to make up for an abbreviated 
western boundary, established at the Rio Grande to avoid conflicts with 
grants to Spanish settler on the other side of the river.
    Dr. Hordes noted that ``sierra madre'' referred to a mountain 
range, rather than the crest of a mountain, in the context of the 
language of the colonial period. He also noted that the translator for 
the United States after the acquisition of the Mexican Territory by the 
United States, David Whiting, in his translation of the original grant 
documents in the possession of the Pueblo, substituted totally 
different boundary landmarks than those described in the Spanish grant 
documents, actually ripping words out of the original documents. He 
used the term ``main ridge,'' rather than ``sierra madre'' in the 
description of the eastern boundary of the Pueblo.
    While not going into detail on the conclusions of the Hordes 
Report, suffice it to say that he states that the Pueblo's claim is 
based on taking the Whiting mistranslation out of context. While all 
other boundary calls refer to points which are ``facing'' specific 
landmarks, the translation states . . . and on the East the main ridge 
of the crest of the mountain, rather than the Sierra Madre the mountain 
range. The original documents had also omitted the word ``facing'' from 
the Eastern boundary, although Dr. Hordes concludes that in the context 
of both the grant document and the ``Act of Possession'', through which 
the Pueblo took possession of its grant, the Eastern boundary was 
intended to be one league from the center of the Pueblo's church, which 
would be in the Sandia foothills, rather than at the crest of the 
mountain.
    Dr. Hordes also concluded that the errors in both the Whiting 
mistranslation of the original Pueblo of Sandia grant documents as well 
as the Clemens survey resulted in the Pueblo receiving about 2,500 
acres more than it was supposed to receive, rather than too little 
land!
VII. Judge Greene's Opinion
    On July 20, 1998, Judge Harold Greene (deceased) of the United 
States District Court for the District of Columbia cited the trust 
responsibility of the Department of the Interior for Indian Tribes, and 
found sufficient ambiguity in the original grant documents to invoke 
the Canon of Indian Law which holds that ambiguities in documents must 
be decided in favor of the tribes. He vacated the Tarr Opinion pursuant 
to the Administrative Procedure Act, 5 U.S.C. Section 551, et seq., and 
remanded the case to the Department of the Interior for ``agency action 
consistent with this Opinion''. The SMC and Bernalillo County filed a 
Notice of Appeal in the Court of Appeals for the District of Columbia. 
The City of Albuquerque successfully moved to file an appeal as amicus 
curiae. The Department of Justice, representing both the Departments of 
the Interior and Agriculture, filed a ``protective appeal''.
    The Court of Appeals then ordered that the parties mediate the 
case.
VIII. Mediation and Settlement Agreement
    The SMC, Bernalillo County and the City of Albuquerque were 
gratified that mediation resulted in an the achievement of three of its 
four goals. Private title and present and future utility access was 
guaranteed, as was public access to the forest and wilderness areas. 
The issue of permanence continues to divide the SMC, the County and the 
City from the other parties, however.
    The Department of Justice convened a mediation process in late 
1998, to include representatives of the Departments of Justice, 
Agriculture (specifically Forest Service officials at the Regional and 
Cibola National Forest level) and Interior, (specifically, BIA 
officials and Tim Vollmann, who authored the original draft Opinion 
that set this entire matter in motion, who was now the Regional 
Solicitor in New Mexico), the Sandia Peak Tram Company, the SMC, 
Bernalillo County, and the City of Albuquerque. A mediator who had 
experience in Indian issues was selected with the concurrence of all of 
the parties.
    The parties to the mediation all agreed that the Pueblo's access to 
the claim area for ceremonial and cultural purposes should not be 
impeded by burdensome Forest Service regulations and permitting 
procedures. All parties also agreed that the claim area should not be 
developed any further, considering its heavy recreational use as 
``Albuquerque's back yard.'' As the mediation progressed, the parties 
also participated in the drafting of a Management Agreement, which 
would govern the management of the claim area if a settlement were 
approved by the parties. Concepts which the SMC thought had been agreed 
to by all parties during discussions would look a little different when 
they were actually written in settlement drafts.
    As negotiations proceeded and the Justice Department produced a 
draft Settlement Agreement and a draft of legislation to implement the 
settlement, the SMC, Bernalillo County and the City of Albuquerque 
concluded that the wording of these documents gave the Pueblo far 
greater authority over the Claim Area than was warranted, considering 
that they continued to believe that the Pueblo's claim to the Area was 
without merit.
    The Pueblo insisted on a ``sense of ownership'' of the Area, which 
was reflected by language granting the Pueblo ``rights'' ``in and to'' 
the Area, while merely ``respecting and assuring public use'' of the 
Area. The drafts gave the Pueblo a veto power over new uses proposed in 
the Area by the Forest Service, which could not be appealed by the 
public. It would be compensated as if it owned the Area in fee simple, 
if the United States were to violate the Settlement Agreement.
    The Pueblo was given unprecedented and confusing civil and criminal 
jurisdiction over members of other Indian tribes, as well as 
jurisdiction over ``recreational and sport hunting and trapping,'' in 
this heavily used area near private homes, by all Native Americans in 
the Area, not merely ceremonial and cultural hunting and trapping by 
its own members.
    The SMC, Bernalillo County and Albuquerque left the mediation in 
frustration in July, 1999 when their suggested amendments to draft 
documents were ignored. It appeared to us that the documents ``tilted'' 
ownership of the Area excessively in favor of the Pueblo. It appeared 
to us that Tim Vollmann was representing the Pueblo, rather than the 
Department of the Interior. It appeared to us that there was political 
influence at play, given the involvement of a ``political'' advisor to 
the Secretary of Agriculture.
    The remaining parties executed a Settlement Agreement and 
Management Agreement. A draft Bill reflecting the settlement was also 
circulated. The SMC, County and City commented on the documents, in 
submittals to the Department of Justice and in the press and local 
media. They have continued to oppose the original Settlement Agreement 
terms.
    The SMC and County have been repeatedly criticized for refusing to 
accept the original Settlement, since private property rights and 
county jurisdictional issues were addressed in the settlement 
documents. As stated above, they have not accepted the original 
documents because they believe that some of the provisions and wording 
of the documents can lead to ambiguities. which may lead to future 
litigation, thwarting a permanent settlement. Their specific comments 
are included with this presentation.
IX. The Court of Appeals Remand
    The SMC, Bernalillo County and Albuquerque continued their appeal 
in the D.C. Circuit, which, on November 17, 2000, remanded the case to 
the Department of the Interior, finding that Judge Greene's remand to 
the Department of the Interior was not a ``final order'' and that it 
therefore did not did not have jurisdiction to decide the case until a 
``final'' decision was made by the Department of the Interior which 
could then be appealed first in the District Court.
    The Court of Appeals Opinion ordered the Department of the 
Interior, on remand, to ``reconsider'' the facts in the record and also 
reconsider the Tarr Opinion position that it lacked legal authority to 
issue a corrected survey. It allowed Interior to re-open the record and 
solicit additional evidence from the public. It did not comment on the 
merits of the case; it merely stated that ``if Interior does issue a 
corrected boundary, it must commission a survey to determine where the 
`main ridge' of the Sandia Mountain lies.''
X. The Leshy Opinion
    The SMC and Bernalillo County do not believe that the Opinion of 
former Solicitor of the Department of the Interior, John Leshy, is a 
correct analysis of the history of the Pueblo and of the statutes and 
cases governing Indian claims. We do not believe that his ``review'' of 
the record should have concluded that the ``main ridge'' of Sandia 
Mountain constituted the Pueblo's eastern boundary, continuing to 
believe that the original Sandia Pueblo grant documents intended that 
the eastern boundary be one league to the east of the Pueblo church, 
``facing'' the ``Sierra Madre'', or Sandia Mountain Range.
    We also do not believe that Congress intended that the ``general 
authority'' of the Secretary of the Interior to resurvey boundaries 
should offer Indian tribes an ``end run'' around the Indian Claims 
Commission Act and Quiet Title Act, allowing the assertion of time-
barred claims against the United States. We cannot accept Solicitor 
Leshy's apparent conclusion that a resurvey by the Department of the 
Interior could change the boundaries of a National Forest and National 
Wilderness created by an Act of Congress.
    The Department of the Interior gave all parties a few weeks after 
the announcement of the Court of Appeals decision to make additional 
submittals. The SMC, Bernalillo County and Albuquerque asked for 
additional time to add to the record, On January 19th, 2001, however, 
as Secretary of the Interior Babbitt was leaving office, a new Opinion, 
written by Solicitor Leshy was released.
    On December 5, 2001, Solicitor Leshy had issued an opinion in an 
unrelated boundary dispute between the Santa Ana and San Felipe 
Pueblos, stating withdrawing Solicitor Tarr's Opinion as it related to 
both the Quiet Title Act and the ICCA as bars to the authority of the 
Secretary of the Interior to resurvey boundaries and correct ``mistakes 
of the past.'' He relied on Pueblo of Taos v. Andrus, 475 F. Supp. 359 
(D.D.C. 1979) which upheld the exercise of the Secretary's authority, 
in the context of a post 1946 Pueblo claim. He discounted the Navajo 
Tribe case, stating that it had nothing to do with correction of 
surveys by the Department of the Interior, and therefore was not on 
point.
    It should be noted that the United States Supreme Court recently 
denied certiorari in Spirit Lake Tribe v. State of South Dakota, et 
al., 262 F. 3d 732 (8th Cir. 2001). The Eighth Circuit held that Indian 
claims against the United States for land which would extend 
reservation boundaries had to be brought within the time limitations of 
the Quiet Title Act, with the time beginning to run when the tribe 
first had notice of the claim. Solicitor Leshy could lead us to 
conclude that the Spirit Lake Tribe should have sought a ``boundary 
correction'' from the Secretary of the Interior, rather than bringing a 
quiet title action against the State of North Dakota, private parties 
and the United States, in order to avoid the Quiet Title Act.
    In the January 19 Opinion, Solicitor Leshy withdrew the rest of the 
Tarr Opinion, stating that there is no clear evidence that Pueblos were 
to be four square leagues, while never refuting evidence which Dr. 
Hordes had presented that the formal Pueblo was the ``rule'', and that 
Indian Pueblos which were larger than four square leagues, unlike the 
Pueblo of Sandia, did not have their original grant documents, and had 
established their boundaries by parol evidence and other means.
    Solicitor Leshy concluded that Congress intended the Eastern 
boundary of the Pueblo to be the ``main ridge'' of Sandia Mountain when 
it confirmed the Whiting survey. He blames the current ``erroneous'' 
boundaries on the incompetence of the surveyor, Clements. He neglects 
to mention that Whiting, himself, signed off on that survey!
    Solicitor Leshy does not mention the Navajo Tribe case in reference 
to the specific facts of the Sandia claim, but once again states that 
the ICCA does not specifically address the authority of the Secretary 
of the Interior to correct surveys, including those involving Indian 
boundaries. He gets around the fact that a correction of this survey 
would impact the boundaries of federally designated wilderness by 
saying that because of the survey error, the Pueblo never received what 
Congress intended, and the land in question never really went into the 
National Forest or Wilderness.
    Secretary Babbitt, in his cover letter to the Leshy Opinion, states 
that the resurvey called for by the Leshy Opinion will be delayed until 
November 15, 2002, which is the date which the Settlement Agreement, 
which we did not sign, goes into effect. He hopes we'll sign the 
Agreement.
    The Leshy Opinion, if it were to remain in effect, could reopen 
every stale Indian claim in the United States. Requests by tribes to 
change their boundaries with national forests and wilderness areas 
could disrupt the entire statutory scheme concerning for the creation 
and management of public land. It should be withdrawn.
                               conclusion
    The Sandia Mountain Coalition seeks a permanent legislative 
settlement of the Sandia Pueblo Claim which will recognize the 
legitimate rights and interests of all parties who are concerned with 
the claim. We hope that our testimony will receive serious 
consideration by the Committees as they review S. 2018. We would like 
to get on with our lives, and to enjoy Sandia Mountain with the members 
of the Pueblo of Sandia as friends and neighbors, rather than as 
adversaries.
    Thank you for the opportunity to present our position.

    Senator Domenici [presiding]. The Senator will return 
shortly.
    Mr. Stern.

 STATEMENT OF WALTER E. STERN, ESQ., MODRALL, SPERLING, ROEHL, 
       HARRIS AND SISK, REPRESENTING SANDIA TRAM COMPANY

    Mr. Stern. Thank you, Senator Domenici.
    I am here today on behalf of the Sandia Peak Tram Company. 
Present with me in the hearing room today are Mr. Louis 
Abruzzo, president of the Tram Company, and Mark Gonzalez of my 
office, the Modrall Sperling firm in Albuquerque, New Mexico.
    I want to thank Senator Domenici and the rest of the 
committees for the honor of testifying this afternoon 
concerning and in general support of S. 2018, sponsored by 
Senator Bingaman of New Mexico. I would ask that my written 
remarks be made part of the record of this hearing.
    Senator Domenici. Without objection.
    Mr. Stern. Thank you.
    The Sandia Peak Tram Company owns and operates one of the 
premier tourist attractions in the State of New Mexico, serving 
over 300,000 visitors a year on its 2.7-mile aerial tramway 
which runs from the base of the Sandia Mountains to their 
crest. The tram company has been involved in this matter for a 
number of reasons, not the least of which are that the tram 
line traverses the area that is the subject of the Pueblo's 
land claim, and tram customers, or the public at large, use the 
tram to access the Sandia Mountain Wilderness Area.
    Because of its property interests and related concerns in 
and near the area that is the subject of the Pueblo's claim, 
the tram company participated in the mediated settlement 
negotiations to seek to resolve this matter. The roughly 15-
month long mediation effort resulted in the execution of a 
settlement agreement, as we have heard previously today, 
between the United States, the Pueblo, and the tram company in 
April 2000.
    The tram company believes the settlement agreement is a 
fair, reasonable, and permanent resolution of a complex set of 
issues and we continue to support that agreement.
    S. 2018 seeks to work within the basic framework of that 
settlement agreement and represents a thoughtful vehicle 
through which to resolve permanently the Pueblo's claim. S. 
2018 in large measure represents the fruits of that mediation 
labor, with several modifications that have been designed to 
address some of the concerns that have been expressed by the 
city of Albuquerque, Bernalillo County, and the Sandia Mountain 
Coalition, and we laud the bill's efforts to bring other 
interested parties back into the discussion.
    The bill follows a tradition of finely tuned congressional 
acts that have served to provide for the permanent resolution 
of tribal land claims. History has shown that complex issues 
like those with which we are faced here deserve narrowly 
tailored legislative solutions that work best for the areas and 
communities affected. This bill accomplishes a great deal, most 
of which is wholly without controversy, as we have heard from 
other witnesses today.
    Among other things, the bill provides for continued Federal 
ownership of the Federal lands at issue, continued 
administration of the area by the U.S. Forest Service, and 
continued preservation of the wilderness and national forest 
character of the area. The bill also preserves public access to 
those public lands, it clearly and unambiguously extinguishes 
the Pueblo's claims as to the area, and clears title to the 
private lands, subdivisions and lands subject to the tram 
company's special use permit, and clearly provides that the 
Pueblo does not have taxing or regulatory powers or any other 
jurisdictional authority over those private lands and 
interests. And the bill provides for the permanent access, 
permanent grant of permanent rights of way through road and 
utility easements across existing Pueblo lands to the Sandia 
Heights North subdivisions and others.
    There is a need for legislation, and for this legislation 
in this Congress in this session. Without a legislative 
solution, parties would be thrown back potentially into another 
endless round of administrative and judicial proceedings that 
could potentially last for years and, even when finished, those 
matters, those judicial proceedings, would not address and 
resolve all of the matters that we seek to address in S. 2018.
    Without a legislative solution, the prospect looms that the 
area involved would be placed within Pueblo boundaries and the 
Pueblo, as with the remainder of its Spanish grant, would have 
the power, even if it chose not to exercise it, would have the 
power to exclude non-members of the Pueblo from those lands. 
Without a prompt legislative solution, the existing window of 
opportunity that so many people have worked so hard to open may 
close.
    Some legitimate questions have been raised about this 
legislation from the standpoint of national precedent. Over the 
years it is my belief that Congress has engaged in a fine 
tradition of seeking to resolve tribal land claims with unique 
and narrowly tailored legislative solutions crafted to fit the 
historic circumstances and the needs of the local communities. 
That is precisely what S. 2018 seeks to do and as to many of 
its details there is other precedent for what S. 2018 seeks to 
achieve and how it seeks to achieve it.
    My written testimony provides additional thoughts and 
information concerning the precedent that this great body has 
deemed appropriate to enact and I will leave to your reading 
those matters.
    In conclusion, we urge the committee to consider the 
settlement agreement as the proper guide for the enactment of 
settlement legislation and we laud the effort to propose 
legislation that seeks to address the concerns of other 
interested parties while seeking to preserve the essence of the 
settlement agreement. We urge prompt action. Without a 
legislative solution in hand by November 15, 2002, this matter 
will be back in the courts and administrative agencies, likely 
for years, and those forums do not have the flexibility that 
this forum does to resolve the matter thoughtfully.
    The tram company stands ready to work with the New Mexico 
delegation and these committees to advance legislation to 
successful passage to resolve not only the land claim, but also 
those related matters that are so important to the local 
community.
    Thank you for your attention.
    [The prepared statement of Mr. Stern follows:]
Prepared Statement of Walter E. Stern, Esq., Modrall, Sperling, Roehl, 
            Harris & Sisk, Representing Sandia Tram Company
    Good afternoon, Mr. Chairmen and Honorable Committee Members. My 
name is Walter E. Stern; I am a lawyer with the New Mexico law firm of 
Modrall Sperling, and am here today on behalf of the Sandia Peak Tram 
and Ski Company (``Tram Company''). I have been actively involved since 
1994 in the dispute and settlement efforts leading to the bill 
presently before the Committee. I want to thank the Chairmen and the 
rest of these Committees for the honor of testifying this afternoon 
concerning--and in general support of--Senate Bill No. 2018, sponsored 
by Senator Bingaman of New Mexico.
                  practice background and perspective
    Since 1982, my law practice has been significantly devoted to the 
representation of non-Indian interests in Indian land claim cases, 
rights-of-way validity challenges, jurisdictional disputes, and related 
litigated matters, and to public land management matters. I also have 
been involved in a number of Indian lands transactions where the keys 
to success (both in the negotiation and the execution of the contract 
or other documentation) are clarity and fairness for all parties.
    We believe we achieved these elements in the April 4, 2000 
Settlement Agreement between the United States, the Pueblo of Sandia, 
and the Tram Company, which is a precursor to Senate Bill No. 2018. Of 
course, as with any collaborative document, we might have drawn some 
provisions differently than what was the product of the negotiation. 
But, our goal was to provide an agreement that would stand the test of 
time, be clear, and provide a fair and permanent resolution of the 
matters at issue.
                  sandia peak tram company background
    The Sandia Peak Tram Company owns and operates one of the premier 
tourist attractions in New Mexico, serving over 300,000 visitors a year 
on its 2.7 mile aerial tramway, which runs from the base of the Sandia 
Mountains to the crest. The Tram Company has been involved in this 
matter for several reasons, not the least of which are that (1) the 
tramway line--the principal asset of the Company--traverses the area 
that is the subject of the Pueblo of Sandia's land claim, and (2) tram 
customers use the tram to access the Sandia Wilderness Area. The Tram 
Company developed the aerial tramway on the west face of the Sandia 
Mountains adjacent to the City of Albuquerque in 1965, with the 
cooperation of the United States Forest Service and the Pueblo of 
Sandia. Since that time, the Company has had business relationships 
with the Pueblo and the Forest Service.
    Presently, the Company holds a Special Use Permit issued by the 
Forest Service for the aerial tramway and an adjacent ski area on the 
east (or back) side of the Sandia Mountains. And, the Company, together 
with affiliated corporations, holds a business lease and certain 
rights-of-way located on lands long understood to be Pueblo of Sandia 
lands. Among other things, those limited duration rights-of-way provide 
road access to the Sandia Heights North subdivisions that lie adjacent 
to the area claimed by the Pueblo in the judicial and administrative 
proceedings that led to the introduction of Senate Bill No. 2018. In 
addition, the Tram Company and its affiliates played a role in the 
development of the Sandia Heights North subdivisions over the years, 
and still owns commercial parcels adjacent to the base of the Tram 
within the Sandia Heights North subdivisions.
                    the mediation and going forward
    Because of its property interests in (and adjacent to) the area 
that is the subject of the Pueblo's land claim, the Tram Company 
participated from the outset in the mediated settlement negotiations 
that involved the Pueblo, the United States Departments of Justice, 
Interior and Agriculture, the City of Albuquerque, Bernalillo County, 
and the Sandia Mountain Coalition, a small group of property owners and 
recreational users. In the mediation, the Tram Company sought to 
protect the jurisdictional status quo with respect to the tramway line 
and to protect the Tram Company's other property interests--goals not 
dissimilar from the goals of homeowners in the Sandia Heights area.
    The roughly 15 month long mediation effort resulted in the 
execution of a Settlement Agreement between the United States, the 
Pueblo and the Tram Company in April 2000. That agreement reflects 
significant concessions by the Pueblo and includes clear and 
unambiguous language protecting private property rights and providing 
for perpetual road and utility easements across Pueblo lands to the 
principal subdivisions adjacent to the area. Nonetheless, the City of 
Albuquerque, Bernalillo County and the Sandia Mountain Coalition 
withdrew from the mediation, despite substantial agreement between all 
interested parties to many of the core elements of the agreement. The 
Tram Company believes the Settlement Agreement was and is a fair, 
reasonable and permanent resolution of a complex set of disputes and 
land management issues. We continue to support that agreement.
    Senate Bill No. 2018 seeks to work within the basic framework of 
the settlement agreement, and represents a thoughtful vehicle through 
which to resolve permanently the Pueblo of Sandia's land claim. Senate 
Bill No. 2018, in large measure, represents the fruits of the mediation 
labors with several modifications designed to address certain concerns 
expressed by the City, County and Coalition as they withdrew, and after 
they had withdrawn, from the mediation. We laud the bill's effort to 
bring other interested parties back into the discussion. While the 
original settlement is fair and reasonable to all parties in my 
judgment, I also believe that Senate Bill No. 2018 addresses the key 
concerns expressed by other parties in New Mexico.
    The Tram Company is very appreciative of the efforts to help bridge 
the narrow gap between the final results of the mediation effort, which 
resulted in the execution of an agreement between the United States, 
the Pueblo and the Tram Company, and the positions asserted by the 
County, the City and the Sandia Mountain Coalition. I would add that 
the ``gap'' between the settling parties (the Tram, the United States 
and the Pueblo) and the non-settling parties (the City, County and 
Coalition) was never very large--in my view. In any event, it would 
appear that the revisions to the basic terms of the settlement that 
have been crafted in S. 2018 may promote bringing the range of diverse 
interests involved here together.
    As the Chairman of the Energy and Natural Resources Committee has 
said, ``"this legislation does not give any party everything it sought, 
but it protects the interests of the Pueblo, the public, and the 
affected landowners. . . .'' In many respects, that is the measure of a 
good compromise. In addition, the bill includes carefully tailored 
provisions that provide solutions largely unavailable to the federal 
courts were the dispute left to judicial resolution.
    Recently, one of the lead representatives of the Sandia Mountain 
Coalition, Mr. Bill Kiely, recently commented on a public radio talk 
show that ``we [presumably the Sandia Mountain Coalition] are very 
favorably dispose[d] to Senator Bingaman's current version'' of the 
settlement legislation. See Transcript of March 7, 2002 KUNM Call-In 
Show. Thus, it would appear that many of the parties in New Mexico 
interested in this matter may be drawing together in a consensus in 
support of Senate Bill No. 2018.
                           the bill: s. 2018
    Like Indian land settlement legislation before this, S. 2018 is 
narrowly tailored to address and permanently resolve a unique set of 
circumstances arising in New Mexico following the acts of two (if not 
three) sovereigns, beginning with a Spanish land grant in 1748, running 
through the era when Mexico ruled the region, and then the period 
following the 1848 Treaty of Guadalupe Hidalgo until now, when the 
region was part of the United States. This legislation follows a 
tradition of finely tuned congressional acts that have served to 
provide for the permanent resolution of Indian or tribal land claims 
throughout our great country. History has shown that complex issues 
like those with which we are faced here deserve narrowly tailored 
solutions that work best for the areas and communities affected. In 
this tradition, S. 2018 wisely and expressly disclaims that it serves 
as any precedent for other legislation.
    The Tram Company believes that this bill is the best vehicle to 
resolve the Pueblo of Sandia land claim. Like the settlement agreement, 
the bill provides a permanent solution to a complex set of problems, 
and addresses issues and subjects relating to the land claim that would 
not be resolved by the applicable federal agencies or the judiciary in 
the event the administrative and court proceedings continued to their 
conclusion. Without this legislative solution, the parties interested 
in this matter would be thrown back into another round of 
administrative and judicial proceedings that would last years and 
years, and even when finished would not address and resolve all the 
matters addressed in Senate Bill No. 2018. Without this legislative 
solution, the prospect looms that the area involved would be placed 
within the Pueblo boundaries and the Pueblo--as with the remainder of 
its Grant--would have the power to exclude (if it so chooses) non-
members of the Pueblo from those lands. Without a legislative solution 
now, the existing window of opportunity so many have worked so 
diligently to open, may close.
    This bill accomplishes a great deal, most of which is wholly 
without controversy:

   The bill provides for continued federal ownership of the 
        federal lands at issue, for the continued administration of the 
        area--including the lands subject to the Tram Company's Special 
        Use Permit--by the United States Forest Service, and for the 
        continued preservation of the wilderness and National Forest 
        character of the area. The provisions accomplishing these 
        things also serve to provide further assurances that there will 
        be no further development of the National Forest and Wilderness 
        lands in the area;
   Using other legislation as a guide, this bill provides a 
        limited management role for the Pueblo of Sandia in the area, 
        while disclaiming in Section 10(c) that the Act would serve as 
        precedent for any subsequent land claim settlement legislation;
   This bill clearly and unambiguously extinguishes the 
        Pueblo's land claims, thereby clearing title to the private 
        lands, subdivisions, and lands subject to the Tram Company's 
        Special Use Permit on which the aerial tramway and associated 
        facilities sit. While the tramway line is located on Forest 
        Service lands, the Tram's Special Use Permit (encompassing the 
        tram line and associated facilities) will not be subject to the 
        special land management regime established under the Bill;
   The bill provides clearly and expressly what the 
        jurisdictional regime will be for the area, and for the private 
        lands and property interests adjacent to the area clearly 
        preserving the jurisdictional status quo for the adjacent 
        private lands and for the Tram Company's Special Use Permit so 
        that the Pueblo is recognized not to have any taxing or 
        regulatory powers or any other jurisdictional or governmental 
        authority over those private lands and interests;
   The bill provides for the grant of permanent access, through 
        road and other rights-of-way, across existing Pueblo lands to 
        the Sandia Heights North subdivisions, among others; presently, 
        the Tram Company and its affiliates hold rights-of-way and 
        other interests that provide access for finite periods of time, 
        but the legislation provides permanent rights-of-way for 
        certain roads. It is important to note that in the absence of 
        federal legislation, these matters will not be resolved in any 
        ongoing litigation or administrative proceedings relating to 
        the land claim. The Tram Company and its affiliates hold other 
        interests within those road rights-of-way grants and other 
        agreements, and the grants of permanent rights-of-way for roads 
        shall be subject to those interests. To the extent that the 
        Tram Company and affiliated companies hold other interests 
        within those rights-of-way, those companies will be able to 
        exercise their remaining rights.
   The bill provides for a permanent right-of-way across 
        existing Pueblo lands for a road that currently provides access 
        to key recreational use areas and trailheads into the Sandia 
        Wilderness Area and to the Tierra Monte subdivision, but which 
        road is unpermitted (or to state it another way, is in trespass 
        on Pueblo lands). Under similar circumstances, other Tribes 
        have closed such roads. As a measure of its good faith and 
        honorable dealing, the Pueblo has not taken such provocative 
        action.
   Finally, the bill ratifies the Settlement Agreement reached 
        between the United States, the Pueblo and the Tram Company, as 
        modified by the legislation. Fair questions have been raised 
        about the relationship between the settlement agreement and the 
        legislation and how the two would be interpreted in relation to 
        one another. We understand also that consideration has been 
        given to doing away with the settlement as part of the overall 
        resolution of this matter. While that may be workable, 
        consideration should be given to the fact that the Pueblo's 
        execution of the settlement agreement represents an act of the 
        Pueblo, and its proposed commitments and actions in that 
        agreement, including its disclaimer of any right, title, claim 
        or interest in the subdivisions and other lands, constitute 
        significant benefits to the other interested parties.
                   precedent for senate bill no. 2018
    Some legitimate questions have been raised about this legislation 
from the viewpoint of national precedent. Respectfully, as suggested 
previously, over the years, Congress has engaged in a fine tradition of 
seeking to resolve tribal land claims with unique and narrowly tailored 
legislative solutions, crafted to fit the circumstances and the needs 
of the local community. That is precisely what this bill is and does. 
There is precedent for much, if not all, of what Senate Bill No. 2018 
seeks to achieve and how it seeks to achieve it.
    In the 103rd Congress, for example, the Crow Boundary Settlement 
Act of 1994 was enacted, resolving a reservation boundary dispute in 
the State of Montana. There, an 1889-1891 survey resulted in the 
erroneous exclusion of an approximately 36,000 acre strip of land from 
the Crow Reservation. Notwithstanding the lengthy passage of time, 
Congress passed settlement legislation thoughtfully and narrowly 
crafted to redress the survey error. See 25 U.S.C. Sec. Sec. 1776-
1776k, Public Law No. 103-444, 108 Stat. 4632. Recognizing the Crow 
Tribe's claim and the survey error, the Act provided the Tribe with 
certain attributes of beneficial ownership in the disputed area. And, 
that Act also ratified a settlement agreement, ``to the extent that 
such Settlement Agreement does not conflict with this subchapter.'' 25 
U.S.C. Sec. 776b(b). Thus, there is precedent for resolving an old 
survey dispute involving Indian lands boundaries, and there is 
precedent for providing the involved tribe with indicia (or benefits) 
of ownership in the process.
    More recently, to settle a land claim in northern California, 
Congress completely redrew a boundary between the Six Rivers National 
Forest and the Hoopa Valley Reservation resulting in the reduction of 
the National Forest and the addition of over 2600 acres to the Hoopa 
Valley Reservation. This legislation arose from a land claim in which 
the Hoopa Valley Tribe asserted that there was an ``error in 
establishing the boundaries of the Hoopa Valley Reservation.'' See 
Hoopa Valley Reservation South Boundary Adjustment Act, Public Law No. 
105-79. S. 2018, although addressing a tract of land about four times 
larger than the Hoopa Valley tract, provides for far more modest 
jurisdictional and beneficial ownership changes to the lands involved 
in contrast to the complete transfer of beneficial title to the Hoopa 
Valley Tribe. S. 2018 is more narrowly tailored. First, it does not 
grant the Pueblo the power to exclude and make all management 
decisions. Second, title remains in the United States and the Forest 
Service retains the principal management role.
    Also, recently, Congress has determined to provide a federal land 
management role for Indian tribes in the resolution of tribal land 
claims. For example, the Valles Caldera Preservation Act, enacted in 
the last Congress, provides that the Trust, which is to administer the 
lands subject to the Act, to consult and cooperate with Indian tribes 
and Pueblos in New Mexico, including the Pueblo of Santa Clara, on 
management practices that affect those tribes and Pueblos. And, in the 
Steens Mountain Cooperative Management and Protection Act of 2002, also 
enacted during the 106th Congress, Congress provided that the Secretary 
of the Interior shall adopt a management plan for federal public lands 
in the great State of Oregon that ``shall provide for coordination 
with--the Burns Paiute Tribe.'' See Section 111(b)(3). Thus, existing 
public laws provide an express management role for tribes.
    Similarly, in Public Law No. 105-313, the Miccosukee Reserved Area 
Act, Congress provided for the permanent residence of Miccosukee 
Indians in the congressionally established Florida Everglades National 
Park without the need for those people to seek and obtain a special use 
permit from the land management agency. That Act provided that the 
lands within the previously established Park would be subject to 
Miccosukee Tribe's ``exclusive right'' to use the lands designated ``in 
perpetuity'', that the Tribe would have the power to make its own laws 
and be governed by them, and that the lands would be considered 
``Indian Country'' for jurisdictional purposes.
    In addition, in the Timbisha Shoshone Homeland Act of 2000, Public 
Law No. 106-423, involving both National Park Service and BLM lands in 
Nevada and California, Congress recognized certain rights and interests 
of the Timbisha Shoshone in the Park and on BLM lands, including access 
to those lands for traditional, cultural and religious purposes. 
Moreover, the Timbisha Shoshone Homeland Act also requires the Park 
Service and the BLM to close certain lands when requested by the Tribe 
``in order to protect the privacy of tribal members engaging in 
traditional cultural and religious activities. . . .'' See Section 
5(e)(5)(E)(i) of Public Law No. 106-423. Senate Bill No. 2018, which 
provides special use rights on federal public lands for the members of 
the Pueblo of Sandia, without seeking a permit, therefore, is not 
without precedent.
    Thus, there is precedent for much, if not all, of the key elements 
of Senate Bill No. 2018. There is even precedent for Section 10(c), 
which states that the Act is not to be considered precedent. See 
Miccosukee Reserved Area Act, Sec. 8(c). But, even if precise precedent 
does not exist for every element of the bill, there is precedent in 
this august body's work to resolve Indian land claims with legislation 
narrowly tailored to address the unique circumstances and history 
presented.
                               conclusion
    We urge the Committee to consider the Settlement Agreement as the 
proper guide for the enactment of settlement legislation, and we laud 
the effort to propose legislation that seeks to address the concerns of 
other interested parties while seeking to preserve the essence of the 
Settlement Agreement. We urge prompt action. Without a legislative 
solution in hand by November 15, 2002, this matter will be back in the 
courts and administrative agencies--likely for years. And, despite some 
bullish predictions from some who have opposed settlement in the past, 
there is no certainty that the claim will be resolved satisfactorily 
for the non-Indian interests. In the event the Pueblo wins the 
litigation, it would have the power to exclude non-Indians (although it 
may not choose to exercise it), and access to a cherished public 
resource could be lost to those of us who are not Pueblo members. And, 
even if those who oppose the Pueblo succeed in the litigation and 
defeat the claim, those people may find that they no longer have the 
ability to travel on certain roads because there is no valid right-of-
way. We stand ready to work with the Committee to advance this bill to 
successful passage.
    Thank you for your attention.

    Chairman Inouye [presiding]. Thank you very much, Mr. 
Stern.
    May I now call upon Mr. Sullivan.

 STATEMENT OF EDWARD SULLIVAN, EXECUTIVE DIRECTOR, NEW MEXICO 
              WILDERNESS ALLIANCE, ALBUQUERQUE, NM

    Mr. Sullivan. Thank you, Mr. Chairman, Senator Domenici. My 
name is Edward Sullivan. I am the executive director of the New 
Mexico Wilderness Alliance and I thank you for the opportunity 
to testify today on S. 2018. I would also ask that my entire 
written testimony as amended be submitted into the record.
    The New Mexico Wilderness Alliance is a community-based 
nonprofit organization located in Albuquerque, with over 2,500 
members throughout the State, many of whom live just minutes 
from the proposed T'uf Shur Bien Preservation Trust Area. A 
major thrust of our work is ensuring the permanent protection 
of designated wilderness areas within New Mexico from any 
harmful impacts.
    While we pay close attention to each of our 23 wilderness 
areas, the Sandia Mountain Wilderness Area is of particular 
importance to the members of the New Mexico Wilderness 
Alliance. In addition, many of the founders of the New Mexico 
Wilderness Alliance and some of the current board members 
played crucial roles in working with Senator Domenici in 
attaining wilderness designation for Sandia Mountain.
    Both the settlement agreement and S. 2018 ensure that the 
wilderness portion of the T'uf Shur Bien Preservation Trust 
Area will remain entirely under the protective umbrella of the 
Wilderness Act. In addition, although recognizing the Pueblo's 
right to access the area for traditional and cultural purposes, 
the agreement and S. 2018 limit those activities and access 
thereto to only those that are consistent with the Wilderness 
Act.
    Importantly, the settlement agreement and S. 2018 provide 
additional protection for the non-wilderness portion of the 
preservation trust area as well. The agreement and S. 2018 
expressly prohibit resource extraction of any type and 
commercial enterprise such as gaming from occurring anywhere.
    Senator Domenici. Such as what?
    Mr. Sullivan. I'm sorry?
    Senator Domenici. Such as what?
    Mr. Sullivan. Such as logging or mining or any type of 
extractive use.
    Senator Domenici. No, I did not get the word. You said such 
as mining? What was the word?
    Mr. Sullivan. Gaming, pardon me.
    Senator Domenici. Gaming?
    Mr. Sullivan. Yes, sir.
    In addition to the expressly stated protections for 
specific activities, the settlement agreement and S. 2018 also 
offer additional layers of protection through the provisions 
providing for Pueblo consent. As indicated previously, despite 
the Forest Service's recent approach of protective management, 
the Service has allowed a number of activities over the years 
to occur in the area that have had a deleterious effect on the 
wilderness values of the area. The settlement agreement and S. 
2018 eliminate the potential for authorization of these types 
of activities by providing the Pueblo with what is essentially 
a veto power for new uses in the area.
    In short, the New Mexico Wilderness Alliance believes that 
the protective measures contained in both the settlement 
agreement and S. 2018 provide more than adequate protection to 
not only the Sandia Mountain Wilderness Area, but also the 
remaining portions of the Cibola National Forest that lie 
within the proposed trust area. Therefore we are pleased to 
express our unequivocal support for these provisions.
    We believe that both the settlement agreement and S. 2018 
provide clear and unequivocal protection of continued public 
access to the area. We believe there is no argument on this 
issue. Both documents provide for protection in perpetuity to 
the public's longstanding use and enjoyment of the area. 
Similarly, the Pueblo has provided every assurance that under 
no circumstances does it have an interest in attempting to curb 
public access in the future.
    For the most part, we believe that the settlement 
agreement, S. 2018, and the incorporated T'uf Shur Bien 
Preservation Area management plan do an adequate job of 
recognizing and protecting the interests of the public and 
adequately provide for input in the overall management of the 
area. The management plan in section 3.F expressly creates a 
public participation in the process with respect to amendments 
to the management plan indicated to ensure full public 
involvement in future management decisions. In addition, the 
settlement agreement, S. 2018 and the management plan each 
expressly provide that the National Environmental Policy Act is 
fully applicable to the area, providing not only protection for 
important environmental concerns, but also preserving public 
input through the NEPA process.
    Significantly, the incorporated management plan in section 
2.B.4 provides the public with important opportunities to 
challenge questionable Forest Service decisions on the part 
of--I am sorry--questionable Forest Service decisions 
pertaining to authorization of new uses, regardless of whether 
the Pueblo has consented to those uses.
    Additionally and very importantly, the plan in section 
2.D.2 sets out a process through which the public has input 
with respect to what constitutes a traditional or cultural use 
on the part of the Pueblo and provides a cause of action in 
Federal courts to challenge decisions regarding traditional and 
cultural uses that the public believes are not in accordance 
with applicable laws.
    There is, however, a discrepancy between the settlement 
agreement and the management plan that we would like to see 
addressed in any legislation authorizing settlement of this 
matter. This is in regard to the blanket exemption from certain 
Federal laws applicable to Forest Service lands. S. 2018 
attempts to resolve this issue. However, S. 2018 still leaves 
uncertainties as to precisely what laws do remain fully 
applicable to the preservation trust area.
    Any legislation authorizing the settlement agreement must 
include a clear and express statement of precisely what laws 
remain applicable to management of the area.
    Given the Federal district court opinion vacating the 
opinion of former Solicitor Tarr regarding the Pueblo's claim 
and the subsequent compelling and persuasive opinion of former 
Interior Secretary Leshy regarding the legitimacy of the Pueblo 
of Sandia's claim, we acknowledge that the Pueblo of Sandia's 
claim is unique. Therefore, we believe it is especially 
important that any legislation settling this contentious issue 
must be respectful of the Pueblo's historic and legal rights 
and interests in the area and likewise must protect the 
Pueblo's traditional and cultural uses in the area while also 
clearly indicating that this is a unique situation which would 
not serve as precedent of any similar claims that may 
potentially arise in the future. We feel that the original 
settlement agreement provides this respect and recognition.
    The issue of Indian land claims and county consent 
provisions raises other issues with respect to creating 
dangerous precedents for future public lands decisions, of 
which we are also deeply concerned. Indian land claims are a 
concern for many throughout the United States, especially those 
of us in the conservation community. We feel strongly each 
place and situation where Native Americans may seek ownership, 
better access, or stronger management role in public lands is 
different. Therefore, we strongly feel that each situation must 
be handled individually based on the specific facts of the 
particular case as well as the legal, political, cultural, and 
environmental conditions of the time.
    No one case or situation should be ever used as a precedent 
for creating an opportunity or an avenue for tribes to 
circumvent the already established process through which tribes 
are required to assert land claims.
    Of equal, if not greater, importance to the New Mexico 
Wilderness Alliance regarding precedential issues is the issue 
of county consent. We believe this provision has serious 
implications with respect to the management of Federal public 
lands. The counties are given consent powers equivalent to 
those of the Pueblo. The counties are given this authority 
despite having absolutely no legal claim to these lands, not 
even an arguable claim on which they may prevail, such as the 
Pueblo has in this instance.
    There is no precedent that we can identify either in 
statutory or Federal case law that supports this provision. 
This matter is of critical importance to the New Mexico 
Wilderness Alliance as well as other national conservation 
organizations. While in initial consideration we were concerned 
about the implications of this provision, we did not view it as 
something that would preclude our support for the legislation.
    Upon further consideration, however, and after many 
discussions with local and national organizations, we must now 
take a much stronger position and strongly urge that this 
provision be removed from the current legislation. This 
provision sets a precedent with respect to unsupportable county 
rights that we simply cannot live with. Therefore, if this 
provision is not removed from S. 2018 we will be forced to 
actively oppose this legislation. In addition, we would be 
forced to engage our national coalition partners in the 
conservation community and organize the greater community to 
oppose the legislation as well.
    Finally, I want to clearly state that the New Mexico 
Wilderness Alliance would never support the loss of any portion 
of land currently included within the national wilderness 
preservation system, nor would we support any legislation that 
would set a precedent having the effect of diminishing the 
integrity of the national wilderness preservation system.
    Our support for the settlement of this dispute is entirely 
contingent upon the area remaining under the Federal 
Government's ownership, management, and control. It is only 
because of the unique situation presented by this particular 
case that we could ever consider agreeing to the management 
scheme established under the settlement agreement, S. 2018, and 
the management plan. Any attempt to remove the area from the 
national wilderness preservation system or from outright 
government ownership would cause us to seriously reconsider our 
support.
    In closing, I would like to once again thank you, Mr. 
Chairman and Senator Domenici, for the opportunity to come 
before you today and provide the views of the New Mexico 
Wilderness Alliance with respect to this important issue. It is 
quite an honor and privilege to be seated where I am right now, 
and, with the exception of the changes I have suggested with 
respect to clarification of applicable laws and regulations, 
and especially the county consent provision, I would be happy 
to express the support of the New Mexico Wilderness Alliance 
for S. 2018.
    Thank you.
    [The prepared statement of Mr. Sullivan follows:]
 Prepared Statement of Edward Sullivan, Executive Director, New Mexico 
                  Wilderness Alliance, Albuquerque, NM
    Mr. Chairman and members of the respective committees, my name is 
Edward Sullivan and I am the Executive Director of the New Mexico 
Wilderness Alliance. I thank you for the opportunity to testify today 
on S. 2018.
    The New Mexico Wilderness Alliance is a community based non-profit 
organization located in Albuquerque, with over 2,500 members throughout 
the state, many of whom live just minutes from the proposed T'uf Shur 
Bien Preservation Trust Area. The Alliance is an organization dedicated 
to the protection, restoration, and continued enjoyment of New Mexico's 
wildlands and Wilderness Areas.
    A major thrust of our work is ensuring the permanent protection of 
designated Wilderness Areas within New Mexico from any harmful impacts. 
While we pay close attention to each of our 23 Wilderness Areas, the 
Sandia Mountain Wilderness Area is of particular importance to the 
members of the New Mexico Wilderness Alliance. In addition, many of the 
founders of the New Mexico Wilderness Alliance, and some of the current 
members of our Board of Directors played crucial roles in working with 
Senator Pete Domenici in attaining Wilderness Designation for Sandia 
Mountain.
    Accordingly, we have spent many hours, and considerable energy 
scrutinizing the issues concerning the Pueblo of Sandia Land Claim, the 
original proposed settlement agreement, as well as Senator Bingaman's 
S. 2018. I am pleased to come before you today and express the 
Alliance's support for the majority of the provisions of S. 2018 and 
Senator Bingaman's attempt to bring this contentious matter to a 
lasting conclusion.
    When we first began reviewing this issue we had two primary 
concerns; (1) enduring protection of the Sandia Mountain wilderness 
through continued application of the Wilderness Act; and (2) protection 
of all existing public rights in the area. It is also extremely 
important to us that the resolution of this dispute lead to a 
settlement that protects the Pueblo's traditional and cultural uses in 
the disputed area. This is especially important, we believe, 
considering the Pueblo's continued willingness to compromise its 
position in an attempt to address the concerns of all the stakeholders. 
We believe that the original settlement agreement, negotiated by the 
Pueblo, the Forest Service, the Department of the Interior, the 
Department of Justice, and the Sandia Peak Tram Company, addressed 
those concerns. We believe that with minor changes S. 2018 will also 
adequately address these concerns.
                    protection of wilderness values
    Although today the Forest Service strongly advocates for protection 
of the Sandia Mountains, the agency has not always had the Mountain's 
best interest at heart, as evidenced by their opposition to its 
original Wilderness designation. Over the years, the Forest Service 
allowed a number of projects to occur in the Sandias which has 
deteriorated the Mountain's wild character. These included the 
construction of a number of access roads, permanent developments at the 
crest, and a large aerial tramway. We are grateful for the turn towards 
protection as a first priority in the Forest Service's approach to 
managing the Sandia Mountain Wilderness. However, changes in the 
agency's priorities and policies provide little assurance that the 
government will stay the course of staunchly defending the Wilderness 
Area. We believe the Settlement Agreement and S. 2018 provide 
additional guarantees of permanence to the protection of the wilderness 
values in the area.
    Both the Settlement Agreement and S. 2018 ensure that the 
Wilderness portion of the T'uf Shur Bien Preservation Trust Area will 
remain entirely under the protective umbrella of the Wilderness Act. In 
addition, although recognizing the Pueblo's right to access the Area 
for traditional and cultural purposes, the Agreement and S. 2018 limit 
those activities, and access thereto, to only those that are consistent 
with the Wilderness Act. Meaning, no one, not even members of the 
Pueblo, can undertake any activity, or gain access to the area, that 
would currently be prohibited in the Wilderness Area. Importantly, the 
Settlement Agreement and the S. 2018 provide additional protection for 
the non-Wilderness portion of the Preservation Trust Area, as well. The 
Agreement and S. 2018, expressly prohibit resource extraction and any 
type of commercial enterprise such as gaming from occurring anywhere in 
the Trust Area.
    Under the express terms of the Settlement Agreement and S. 2018 the 
protective provision just referenced apply not only to forest service 
lands but also are fully applicable to trust and fee lands that the 
Pueblo has purchased in the past as well as any lands in the Area the 
Pueblo may acquire in the future. This is entirely consistent with the 
Pueblo's stated purpose of providing permanent protection to the 
entirety of the Area. We feel that by accepting restrictions on the use 
of this Pueblo owned property, restrictions I would add that otherwise 
would be inapplicable to this property, that the Pueblo has shown its 
good faith intention to fulfill the promise to protect and preserve the 
Area's natural and wild character. Therefore, quite simply put, we 
believe that the Settlement Agreement and S. 2018 provide excellent 
protection for the natural wilderness character of the Mountain and we 
strongly support the protective provisions of both documents.
    In addition to the expressly stated protections from specific 
activities, the Settlement Agreement and S. 2018 also offer additional 
layers of protection through the provisions providing for Pueblo 
Consent. One of the Pueblo's stated purposes for pursuing the land 
claim is to provide enduring protection to the wilderness and natural 
character of the Area. We believe the terms of the Settlement Agreement 
confirm the integrity of that claimed purpose. As indicated previously, 
despite the Forest Service's recent approach of protective management, 
the Service has allowed a number of activities to occur in the Area 
that have had a deleterious effect on the wilderness values of the 
Area. The Settlement Agreement and S. 2018 eliminate the potential for 
authorization of these types of activities by providing the Pueblo with 
what is essentially a veto power for ``new'' uses in the Area. 
Therefore, if the Forest Service or some other entity proposed an 
activity in the Area that would negatively impact the wilderness or 
natural quality of the Area the Pueblo, through the consent provisions, 
has the authority to prevent that activity and protect the Area from 
harm. Considering the stated purpose of protecting the naturalness of 
the Area, expressed by all the parties to this dispute, we strongly 
support the provision providing for Pueblo Consent.
    In short, the New Mexico Wilderness Alliance believes that the 
protective measures contained in both the Settlement Agreement and S. 
2018 provide more than adequate protection to not only the Sandia 
Mountain Wilderness Area but also the remaining portions of the Cibola 
National Forest that lie within the proposed Trust Area. Therefore, we 
are pleased to express our unequivocal support for these provisions.
           protection of existing public rights and interests
    Because the area in question serves as the premier open space 
refuge to a population of over 700,000 people in the Albuquerque metro 
area, it is critical that any settlement protect not only public access 
to the Area but also the public voice in how the Area is managed and 
protected. We believe that the Settlement Agreement and S. 2018 do an 
adequate job of protecting those interests.
    We believe that both the Settlement Agreement and S. 2018 provide 
clear and unequivocal protection of continued public access to the 
area. We believe that there is no argument on this issue; both 
documents provide for protection, in perpetuity, to the public's 
longstanding use and enjoyment of the Area. Similarly, the Pueblo has 
provided every assurance that under no circumstances does it have an 
interest in attempting to curb public access in the future.
    Public participation in the management of the Area, especially when 
it comes to the land use planning process, raises some interesting 
issues for the New Mexico Wilderness Alliance. Public participation in 
this process is critical for sound management of any special use area. 
Therefore, we pay extremely close attention to any proposals that may 
change or alter this process.
    For the most part, we believe that the Settlement Agreement, S. 
2018, and the incorporated T'uf Shur Bien Preservation Trust Area 
Management Plan, do an adequate job of recognizing, and protecting 
interests of the public and adequately provide for input in the overall 
management of the Area. The Management Plan, in Section IIIF, expressly 
creates a public participation and input process, with respect to 
amendments to the Management Plan intended to ensure full public 
involvement in future management decisions. In addition, the Settlement 
Agreement, S. 2018 and the Management Plan each expressly provide that 
the National Environmental Policy Act is fully applicable to the Area 
providing not only protection for important environmental concerns but 
also preserving public input through the NEPA process.
    Significantly, the incorporated Management Plan, in Section IIB(4), 
provides the public with important opportunities to challenge 
questionable Forest Service decisions on the part of the Forest Service 
pertaining to authorization of ``new'' uses, regardless of whether the 
Pueblo has consented to those uses. Additionally, and very importantly, 
the Plan, in Section IID(2), sets out a process through which the 
public has input with respect to what constitutes a traditional or 
cultural use on the part of the Pueblo and provides a cause of action 
in federal courts to challenge decisions regarding traditional and 
cultural uses that the public believes are not in accordance with 
applicable laws.
    The one point of contention that we have with the existing 
management plan, is that we would have preferred that the public been 
invited to participate in its development. The current, incorporated, 
Management Plan was developed by the parties to the litigation 
concerning the land dispute, without public participation. While we 
believe that our public lands should always be managed with the maximum 
amount of public input and participation possible, we recognize and 
respect that the Settlement Agreement, and S. 2018 as well as the 
initial Management Plan, attempt to settle litigation to which the 
public at large was not a party. Therefore, we understand that this is 
a unique situation in which inclusion of every potential stakeholder 
may very well have precluded any potential for settlement of this 
troubling situation.
    It is important to note, that in our review of issues concerning 
public interest in the Area we looked at the original Settlement 
Agreement and Management Plan together, as essentially a single 
document. Taken as a whole, therefore, we believe that the Settlement 
Agreement, or S. 2018 and the Management Plan provide adequate 
protection of the public's interest in participating in process of 
making future management decisions concerning the proposed Preservation 
Trust Area. There is however, a discrepancy between the Settlement 
Agreement and the Management Plan that we would like to see addressed 
in any legislation authorizing the settlement of this matter.
    As it stands currently the original Settlement Agreement contain 
blanket exemptions from the Forest and Rangeland Renewable Resources 
Planning Act, as amended by the National Forest Management Act as well 
as the Forest Service planning regulations implementing these acts. 
Senator Bingaman's draft bill, dated February 25, 2002 contained a 
similar exemption. The Management Plan, however, expressly provides 
that a number of provisions of those planning regulations remain 
applicable to the Area. Specifically, the Plan provides for application 
of the appeal process regarding Forest Service project decisions, set 
out at 36 C.F.R. 215 to apply to management decisions in the Area. 
Similarly, the Plan provides that the public appeal process regarding 
Plan amendment decisions, set out at 36 C.F.R. 217, or subsequent 
amendments, apply to any administrative appeal of the Forest 
Supervisor's decision regarding amendment of the Plan. Therefore, the 
terms of the Settlement Agreement are inconsistent with the terms of 
the Management Plan. This is especially important considering that the 
appeal provisions regarding Plan amendments in 36 C.F.R. 217 have been 
amended and incorporated into planning regulations set out at 36 C.F.R. 
219.
    While there appears to be a conflict here in the language of the 
Settlement Agreement and the Management Plan, it has been our 
understanding all along that the parties fully intended the terms of 
the Management Plan to be fully applicable and enforceable. Therefore, 
we do not believe that this was an intentional attempt to create 
ambiguity in the Plan or the Settlement Agreement. Obviously, however, 
this discrepancy is important and needs to be addressed. S. 2018 
attempts to remove this discrepancy by simply removing this blanket 
exemption and retaining only the introductory language stating that 
``other laws and regulations applicable to the National Forest System, 
and the Management Plan (which is incorporated herein by reference)'' 
shall apply to the administration of the Area. This change, although an 
improvement on the Settlement Agreement and the Draft Bill, it does not 
fully resolve the problem. This new language still leaves doubt as to 
precisely what laws and regulations remain in full force and effect.
    Congress, through this legislation has the opportunity to eliminate 
this confusion and make clear the relationship between the Act, the 
Settlement Agreement, and the Management Plan as well as the process 
for public participation that will attach to the Area. Any legislation 
authorizing the Settlement Agreement must include a clear and express 
statement of precisely what laws remain applicable to management of the 
Area.
     respect and protection for the integrity of the pueblo rights 
                       and interests in the area
    Given the federal district court opinion vacating the opinion of 
former Solicitor Tarr regarding the Pueblo's claim, and the subsequent, 
compelling and persuasive opinion of former Interior Solicitor Leshy 
regarding the legitimacy of the Pueblo of Sandia's claim we acknowledge 
that the Pueblo of Sandia's claim is unique. Therefore, we believe it 
is especially important that any legislation settling this contentious 
issue must be respectful to the Pueblo's historic and legal rights and 
interests in the area and likewise must protect the Pueblo's 
traditional and cultural uses in the area while also and clearly 
indicating that this is a unique situation which should not serve as 
precedent of any similar claims that may potentially arise in the 
future.
    We feel that the original Settlement Agreement provides this 
respect and recognition. Similarly, we feel that S. 2018 does a 
respectable job in this area. However, there is one provision in 
particular in S. 2018 that has the appearance and the effect of 
denigrating the integrity of the Pueblo's interest and provides rights 
to other parties that are inconsistent with the need for and the 
purpose of this legislation.
    I am speaking of the provision set out in Section 4(b)(4) of S. 
2018. This provision provides both Sandoval and Bernalillo Counties 
with Consent rights equivalent to those of the Pueblo. We feel this 
provision is unnecessary. It provides the counties, who were not 
parties to this dispute, with rights that they otherwise would not have 
and for which there is no legal precedent, of which we are aware. In 
addition, we feel that raising the level of authority of the two 
counties to that of the Pueblo is disrespectful of the Pueblo's 
legitimate historic and legal interest in the Area.
                 potential national precedential issues
    The issue of Indian land claims and County Consent provisions raise 
other issues with respect to creating dangerous precedents for future 
public lands decisions of which we are also deeply concerned.
    Indian land claims are a concern for many throughout the United 
States, especially those of us in the conservation community. We feel 
strongly each place and situation where Native Americans may seek 
ownership, better access to or a stronger management role in public 
lands is different. Therefore, we feel strongly that, each situation 
must be handled individually based on the specific facts of the 
particular case as well as the legal, political, cultural, and 
environmental conditions of the time. No one case, or situation should 
ever be used a precedent for creating an opportunity or avenue for 
tribes to circumvent the already established process through which 
Tribes are required to assert land claims. Were it not for our sincere 
belief that this particular instance presents a unique situation in 
which the Pueblo's claim has had strong support from Interior 
Department officials and the federal district court, it is possible 
that we would be in front of you today taking an entirely different 
position. However, that is not the case. Because of our belief in the 
strength of the Pueblo of Sandia's claim and our desire to have the 
local interests, who have the most at stake in this matter, rather than 
a federal judge, bring this matter to a conclusion, we are pleased to 
offer our support today for the majority of the provisions of S. 2018.
    Of equal, if not greater, importance to the New Mexico Wilderness 
Alliance, regarding precedential issues is the issue of County Consent 
included in S. 2018. As stated above, we believe this provision has 
implications regarding respect for the Pueblo's historic and legal 
rights in the Area. More importantly, it has serious implications with 
respect to the management of federal public lands. This provision, as 
far as we have been able to determine, creates the first instance in 
which a County, a subdivision of State government, has the authority to 
dictate how federal lands are used and managed. The counties are given 
this authority despite having absolutely no legal claim to these lands, 
not even an arguable claim on which they may prevail such as the Pueblo 
has in this instance. In addition there is absolutely no precedent that 
we can identify, either in statutory or federal case law, that supports 
this new delegation of authority.
    This matter is of critical importance to the New Mexico Wilderness 
Alliance as well as other national conservation organizations. While in 
initial consideration we were concerned about the implications of this 
provision we did not view it something that would preclude our support 
for the legislation. Upon further consideration, however, and after 
many discussions with local and national organization we must now take 
a much stronger position and strongly urge that this provision be 
removed from the current legislation. This provision sets a precedent 
with respect to unsupportable County rights that we simply cannot live 
with. Therefore, if this provision is not removed from S. 2018 we will 
be forced to actively oppose this legislation. In addition we will be 
forced to engage our national coalition partners in the conservation 
community and organize the greater community to oppose this legislation 
as well.
    Finally, I want to clearly state the New Mexico Wilderness Alliance 
would never support the loss of any portion of land currently included 
within the National Wilderness Preservation System. Nor would we 
support any legislation that would set a precedent having the effect of 
diminishing the integrity of the National Wilderness Preservation 
System. Our support for the settlement of this dispute is entirely 
contingent upon the Area remaining under the federal government's 
ownership, management, and control. It is only because of the unique 
situation presented by this particular case that we could ever consider 
agreeing to the management scheme established under the Settlement 
Agreement, S. 2018 and the Management Plan. Any attempt to remove the 
Area from the National Wilderness Preservation System, or from outright 
government ownership, would cause us to seriously reconsider our 
support.
    In closing, I would like to, once again, thank you Mr. Chairman and 
the members of the respective committees for the opportunity to come 
before you today and provide the views of the New Mexico Wilderness 
Alliance with respect to this important issue. It is an honor and a 
privilege to be seated where I am right now. With the exception of the 
changes I have suggested with respect clarification of applicable laws 
and regulations, and removing County consent provision, I would be 
happy to express the support of the New Mexico Wilderness Alliance for 
S. 2018.

    Chairman Inouye. Thank you very much, Mr. Sullivan.

      STATEMENT OF GUY RIORDAN, OWNER, PIEDRA LISA TRACT, 
                        ALBUQUERQUE, NM

    Mr. Riordan. Thank you, Mr. Chairman, Senator Domenici. I 
would like to also thank Mr. Mike Connor from Senator 
Bingaman's office for allowing me to come up here and testify 
today.
    My name is Guy Riordan. I am the owner of a 160-acre 
private property tract known as the Piedra Lisa Tract or as the 
Caulkins Estate or sometimes known as the Canyon del Agua 
Estate. This property is located within Sandoval County, New 
Mexico, and surrounded by the proposed T'uf Shur Bien 
Preservation Trust Area Act.
    This piece of property was originally homesteaded in 1890 
by a Mr. Francisco Duran. In 1914 the Manzano National Forest 
was created. The national forest surrounded this property, but 
access was continued through the forest by the original 
homesteader and his successors--prior existing use. In 
approximately 1978 the surrounding national forest was added as 
wilderness. Our access to our property is continuing to this 
date.
    This Piedra Lisa Tract is very unique. It is the most 
beautiful property on the mountain. It has spectacular views, a 
year-round running stream, one of only a few within the entire 
area, ponderosa pine trees, an abundant amount of deer, turkey, 
bear, mountain lions. It is also surrounded by the Sandia State 
Game Refuge and Management Area.
    Because of this uniqueness, the ``Caulkins Tract,'' as the 
Federal Government has called it, as it been referred to by the 
Forest Service, was and has been on their priority acquisition 
list even prior to my owning the property. The Forest Service 
has been trying to acquire funds to purchase this property. 
After I purchased the property, the Forest Service continued to 
place my property on their high priority acquisition list.
    Recently, the Forest Service has tried to deny vehicular 
access to my property, even though I have a prior existing use 
dating back to the original homestead. Because of the recent 
stand by the Forest Service, I filed suit in the Federal court 
asking for a declaratory judgment on my private property 
rights.
    In addition to the Forest Service attempting to acquire the 
Piedra Lisa Tract, the Sandia Pueblo has made numerous offers 
and inquiries as to purchase of this property.
    S. 2018 has been specifically designed to legislate around 
my private property rights and my due process in Federal court 
and any and all remedies that may be authorized through the 
administrative process within the Forest Service. Senator 
Bingaman, I know that you are trying to resolve this dispute in 
an honorable fashion, but some of the parties involved have not 
been.
    I have never been involved in any initial discussions with 
the Forest Service, Sandia Pueblo, or your staff in regards to 
the protection of my property rights under S. 2018. My property 
is mentioned numerous times as to its disposition if the Forest 
Service acquires it or if Sandia Pueblo acquires the property. 
It also allows Sandia Pueblo to veto, as well as Sandoval 
County, which the Pueblo has great influence over, any new uses 
of national forest lands, which may affect my private property 
rights and diminish the value of my property, for their own 
self interest.
    Another major concern is section 14, subsection C of this 
bill. It allows the Pueblo to exchange lands owned within the 
private subdivisions for national forest lands within Sandoval 
County. This could allow the Pueblo to own all lands 
surrounding my property. The Pueblo has purchased numerous 
properties in the exclusive subdivisions over the years. The 
high value of these properties on a dollar basis exchange would 
allow the Pueblo to purchase or exchange thousands of acres of 
wilderness land, thus possibly entering into trust and out of 
public use.
    I find it remarkable that I own the largest single private 
tract of land addressed in this bill, but have not been 
guaranteed rights of access or rights of way, have not had any 
mention of utilities, cables, etcetera, rights of way, but 
every other road, trail, and private property right and all 
other subdivisions are specifically exempted from Pueblo 
jurisdiction.
    I respectfully request that all rights to my due process be 
guaranteed and that all my property rights and interests be 
protected.
    Thank you.
    Chairman Inouye. Thank you very much, Mr. Riordan.
    Mr. Cummins, if this agreement is not ratified, would the 
home owners in Tierra Monte and Sandia Heights subdivisions 
lose any rights to rights of way and utility easements to their 
homes?
    Mr. Cummins. I think generally speaking, yes, Mr. Chairman. 
Certainly the issues that Anita Miller and I think--and 
respectfully, I would suggest that Anita Miller would be better 
to answer your question. She has been involved and is a lawyer. 
But certainly the access over the triangular piece of the 
existing Pueblo lands is critical to the access to particularly 
Tierra Monte and some portions of North Sandia Heights.
    Chairman Inouye. Now, this agreement would provide for the 
rights of way, will it not?
    Mr. Cummins. That is correct.
    Chairman Inouye. So if you do not have this legislation, 
the rights of way are gone?
    Mr. Cummins. Yes, sir. In New Mexico we consider that being 
in deep guacamole.
    Chairman Inouye. Ms. Miller, I am sorry I had to step out 
while you were testifying, but would you favor this committee 
by providing it with legislative language covering your 
suggestions?
    Ms. Miller. Senator, I would be delighted to. I already did 
include a definition of trust for the purpose of the statute. 
As far as new uses, I would like to work with Senator 
Domenici's staff on that as well as with my membership on new 
uses. I think that I would be delighted if you would be 
interested in receiving that.
    Chairman Inouye. I would request that it be submitted as 
soon as possible so the committee can study that.
    Ms. Miller. Thank you.
    Chairman Inouye. I appreciate it.
    I gather, Mr. Stern, that you do support the measure?
    Mr. Stern. Generally speaking we do, Mr. Chairman. If I 
might follow up to supplement Mr. Cummins' answer concerning 
the question of rights of way, the tram company does have a 
particular interest in the rights of way in the triangle area 
to the south of the map over here in the hearing room. But 
those rights of way that the tram company holds are for a 
finite period of time. They are not permanent rights of way, 
and so this S. 2018 and the settlement agreement would provide 
for permanent rights of way for those roads.
    In addition, the settlement and S. 2018 also provide for 
permanent utility rights of way to the Sandia Heights North 
subdivisions, which has been a matter of some concern as I 
understand it to the home owners in that area for many years.
    Chairman Inouye. Mr. Sullivan, with the exception of the 
two items that you pointed out, you support this measure?
    Mr. Sullivan. Yes, Mr. Chairman, we are very much in 
support of settling this matter.
    Chairman Inouye. But do you have any questions on the right 
to consent to new uses?
    Mr. Sullivan. On behalf of the Pueblo?
    Chairman Inouye. Yes.
    Mr. Sullivan. No, we actually support that right, very much 
so. We think it is an extra layer of protection. I was somewhat 
interested in Senator Craig's concept of super-wilderness that 
he mentioned earlier.
    Chairman Inouye. Mr. Riordan, listening to your testimony, 
I had the staff look into section 10.B of the bill. Have you 
seen that section? It was added to ensure that your private 
property rights would not be affected. I think it covers your 
concern.
    Senator Domenici. This is Mr. Riordan you are talking to?
    Chairman Inouye. Yes.
    Mr. Riordan. Yes, sir. On section 10, subsection B: 
``Existing rights extend to any valid property rights that 
exist within the area that are not otherwise addressed in this 
act or in the settlement agreement. Such rights are not 
modified or otherwise affected by this act.''
    The problem I had with this bill, sir, is it was 
specifically excluding my piece of property in any definition 
of rights of ways, abilities to go ahead, and you have special 
use permits authorized by the national forest, and other rights 
that I feel that I may or may not have. The problem I had once 
again is that this has been a situation where my property is 
surrounded by the national forest and the wilderness, and I 
think that people have been trying to diminish my rights and 
access to the administrative process as well as the Federal 
courts for their own personal purchase of the property.
    I have been included in this bill, I think, two or three 
times as to the disposition of my property, without ever being 
consulted on it. In this bill it is stated what will happen if 
the Pueblo of Sandia purchases my property, what will happen if 
the Federal Government purchases my property. I feel that there 
is not sufficient language in this bill to protect my rights 
and I would like to see something included that protects my 
rights for access as well as any other use that we may have 
getting back and forth to our property, sir.
    Chairman Inouye. Thank you.
    Mr. Cummins, if I may ask one more question. In citing your 
concern about new uses, you cited the right of handicapped 
access and handicapped parking.
    Mr. Cummins. Yes, sir.
    Chairman Inouye. Does not the Federal law, the Americans 
With Disabilities Act, cover that?
    Mr. Cummins. We would hope so, but our concern is that in 
establishing a veto over new uses, as with some of the other 
questions on other Federal law, we do not know what would take 
precedence. So we would just like that clarified that either 
other Federal laws, including the wilderness acts and 
everything else, apply or do not. I think there have been 
several questions.
    Chairman Inouye. I would think it would be rather difficult 
for you to veto a Federal law, but we will look into that.
    Mr. Cummins. I would hope so, sir. Thank you.
    Chairman Inouye. Senator Domenici.
    Senator Domenici. Thank you very much.
    Mr. Riordan, my staff tells me that there is a State game 
refuge which surrounds your property?
    Mr. Riordan. Yes, sir, there is.
    Senator Domenici. There is no mention of that in your 
testimony today. Would that have any effect, would this 
legislation have any effect on that refuge as well as your 
property?
    Mr. Riordan. Senator Domenici, that Sandia Game Refuge and 
Sandia Management Area is once again another very unique area, 
and there is tremendous amounts of deer, bear, turkey, mountain 
lion on that property.
    Senator Domenici. How big is it?
    Mr. Riordan. It covers this entire T'uf Shur Bien area.
    Senator Domenici. Do you happen to know how many acres it 
is?
    Mr. Riordan. Sir, I would say it has got to be over 30,000 
acres, this entire portion. This T'uf Shur Bien area totally is 
encompassed within that Sandia National--excuse me--Sandia 
State Game Refuge and Management Area.
    Senator Domenici. Your property, how many acres is it?
    Mr. Riordan. I have 160 acres, sir.
    Senator Domenici. Inside of the 10,000?
    Mr. Riordan. Yes, sir.
    Senator Domenici. Is it currently accessible?
    Mr. Riordan. Yes, sir, it is.
    Senator Domenici. Over Indian land?
    Mr. Riordan. No, sir. Over national forest and through the 
wilderness area.
    Senator Domenici. And the forest?
    Mr. Riordan. Yes, sir.
    Senator Domenici. So the question you are asking is, will 
it remain such when we are finished here, whatever the effect 
of the joint management agreement?
    Mr. Riordan. Yes, sir.
    Senator Domenici. And obviously we have got to check into 
that.
    Mr. Riordan. Yes, sir. We would like clarification. We 
would like to be assured access to our property.
    Senator Domenici. I do not think anybody--our Indian 
people's approach has been in exchange for all this, they are 
going to grant the rights of way across our property as we 
obtain a property right interest. So I would assume you would 
have that right, if it does exist, and we will just have to 
look at it.
    Mr. Riordan. I would like clarification on it, yes, sir.
    Senator Domenici. Do you have somebody that can write us 
language that you think makes it clear? We would like it so we 
do not have to go back and forth.
    Mr. Riordan. Yes, sir, I can have my attorney do that.
    Senator Domenici. Tim, any language that you want 
clarified? I know you have gone to an inordinate amount of 
expenditures at the county level, but can you through your 
lawyer get clarification language that you might need?
    Mr. Cummins. Yes, sir.
    Senator Domenici. I think what we are going to have to do 
is, we all have sessions when we go around and round and we 
come close, but we do not finish it. I think we are asking 
you--you are asking us for some things today, but we need your 
help, if you can, on what will satisfy you with reference to 
specifics.
    Anita, can you do the same thing on definitions? If we do 
not have them, will you get them to us?
    Ms. Miller. Yes.
    Senator Domenici. I assume we will redo them, but at least 
we will be one step ahead. We will have your thoughts. Your 
thoughts as written may not be acceptable legally, but we will 
have something cooking.
    You had no problems of that type, did you, Mr. Stern?
    Mr. Stern. No, Senator. But I did want to simply reiterate 
that the tram company does stand ready to offer whatever 
assistance is appropriate to the committee and the other 
parties in moving this forward.
    Senator Domenici. Now, Mr. Sullivan, you offered some very, 
very interesting observations. At one point near the end you 
were talking rather firmly of the kind of problem that is going 
to be created if something is done, that it would bring you out 
of the bushes along with all the other groups that you work 
with.
    Mr. Sullivan. We spend a lot of time in the bushes.
    Senator Domenici. Yes, you do. That was a mistake, that I 
used that, but on second thought it fits all right.
    [Laughter.]
    Senator Domenici. Would you repeat rather quickly what it 
is you are talking about with reference to lands, the laws that 
are applicable, and the fact that you have to have assurance 
that this is going to remain wilderness? I did not get that 
when you talked about it. Would you repeat it?
    Mr. Sullivan. Yes, sir. We are solely concerned that the 
discrepancy between the settlement agreement and the management 
plan regarding planning for the area be resolved. We would be 
happy to get in touch with your staff or Senator Bingaman's 
staff with specific language regarding that.
    Also, we had a concern with the consent provision, the 
county consent provision.
    Senator Domenici. Yes.
    Mr. Sullivan. We feel that is unprecedented and we are very 
concerned that a county would have jurisdiction or increased 
authority in a wilderness area or on any public lands. We think 
that is a dangerous trend that many folks are trying to move us 
towards.
    Senator Domenici. Were there not some Federal laws that you 
thought ought to apply that are not enumerated, that you wanted 
to see enumerated or that we should act upon them? Or did I 
miss something?
    Mr. Sullivan. I do not believe so, sir.
    Senator Domenici. Okay.
    Mr. Sullivan. If I may add one comment, I would just want 
to make a comment on Mr. Riordan's testimony, in that to my 
knowledge access to this tract, the Piedra Lisa Tract, has only 
been by foot travel. There is no historic vehicular access. I 
would be remiss to not bring that up in front of the committee 
because we believe legislating vehicular access across a 
wilderness area would again be a dangerous precedent to set.
    Senator Domenici. Well, I think his position would be that 
that was already there.
    Mr. Sullivan. Right. That is actually something that is 
being currently adjudicated in a court in Albuquerque, to which 
we are a party with Mr. Riordan.
    Senator Domenici. Mr. Chairman, might I, since we still 
have a lot of our New Mexicans and I believe we are finished 
with the hearings--are we not?
    Chairman Inouye. I have just got to vote, that is all.
    Senator Domenici. But I mean--downstairs, you are going to 
vote?
    Chairman Inouye. We have still got about 10 minutes.
    Senator Domenici. What I was going to say, I am finished, 
but I just wanted to wrap it up if I could.
    Chairman Inouye. Please.
    Senator Domenici. First of all, I want to personally, on 
behalf of our people, thank you for coming. You obviously are a 
totally neutral party and you work very hard on Indian issues, 
and it was good that you and your good staff worked its way in 
getting you here and having you a participant, and I thank you 
for that.
    You know, now that we have finished the hearing, it has 
dawned on me that this could have been accomplished in a number 
of ways. But the Forest Service--and they have good people, no 
question--they got started in trying to resolve a dispute where 
the Sandians were claiming this property and the Forest Service 
was claiming it and was managing it and people were using it, 
and litigation was going to take place, and a Leshy opinion, 
even though it has never been confirmed by a court and the 
facts were never found by a court, the litigation was going to 
take place.
    I think the Forest Service in their typical way started to 
resolve this by resolving management issues and trying to have 
both the Forest Service and Sandia have equal power and control 
over this property, so that there would be almost an imaginary 
line between the ownership and the rights of the Indian people, 
so that we even got it so close to being fee simple title to 
the Indian people that we said if anything is ever changed 
there, the Forest Service said, if anything is ever changed, 
the Indians can claim recompense for the whole tract, not for 
half the tract, as if it were theirs.
    I am not sure when you take a piece of property that has 
the mixed uses that we had here and impose on it a wilderness 
area, subdivisions, a tram, and you attempt now to settle a 
dispute of a land claim of ownership by distributing management 
and other things--I can see where it turns into a very 
difficult situation.
    I do not know whether they tried more conventional 
approaches. The conventional approaches are conservation 
easements. If you have one party that owns and one party that 
does not quite own, they can have a lot left, but they have a 
conservation easement that judges how it is used. There are 
other joint management agreements that are a long way from 
being as complicated as this that are entered into. We have 
done some here with the Indians at Hamas and probably some 
others that I do not recall.
    But I think that we are going to work from what we are 
dealt with. Those people here who have heard the testimony and 
have participated and have made some contention that something 
ought to happen or they would like to see this or that, I think 
the best thing we can do is ask you to submit it. There is no 
use us following through here. You know where we are at. We are 
pretty accessible, even though we are in Washington. We have 
our offices. You all know how to get our staff. You ought to 
send them to us.
    If you are going to talk about fees, attorneys' fees, I do 
not think you ought to be bashful. You ought to go ahead and 
say it. I do not know that you can get it, but I think you can 
say that is one thing you feel this whole dispute precipitated 
out, and you would like to make that submission.
    We will hear from you on conservation issues. Mr. Riordan, 
you will give us more information if you intend to be protected 
there. Obviously, the Forest Service will be contacted, so that 
we are doing the same thing.
    Mr. Riordan. Thank you, sir.
    Senator Domenici. I am finished. Again, I want to thank 
you. It is a pleasure working with you. And I thank you, all of 
you New Mexicans. We will see you very soon.
    Chairman Inouye. Well, to accommodate the serious concerns 
of my good friend Senator Domenici, the record of this hearing 
will be kept open until close of business May 8. That is 
Wednesday. I think it should give all of us sufficient time to 
work out suggested language, legislative language.
    May I also recommend, because of the recent anthrax scare, 
if you should mail in your suggestions it will not get to us 
for about a month. So would you fax it to us? Otherwise--I am 
still receiving mail from Hawaii dated October last year.
    Mr. Stern. Mr. Chairman, may I make a suggestion?
    Chairman Inouye. Yes, sir.
    Mr. Stern. With all due respect, given the collaborative 
effort we are engaging in to seek a resolution that is 
comfortable for everyone, particularly the Senate, I would 
encourage the parties, if I might use my opportunity at the 
microphone, to exchange their views amongst one another in 
addition to submitting them to the committee. I may be speaking 
out of turn when I suggest that.
    Chairman Inouye. You are a good mediator. Thank you very 
much.
    With that, I thank all of you for your testimony. It has 
been very helpful. The hearing is adjourned.
    [Whereupon, at 5:22 p.m., the hearing were adjourned.]
                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                                      Albuquerque, NM, May 3, 2002.
Senator Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.

Attention: Michael Connor, Kira Finkler, Malini Sekhar

Re: Supplemental Testimony and Suggested Amendments to S. 2018

    Dear Senator Bingaman: Thank you for the opportunity to appear 
before the Committees on Energy and Natural Resources and Indian 
Affairs on April 24. I was thrilled to participate and present the 
views of the Sandia Mountain Coalition to the Committee concerning S. 
2018, which we urgently hope will be adopted by Congress, with our 
amendments included.
    I am enclosing the answers to the questions sent to me by the 
Republican members of the Committee, which includes a draft of an 
amendment defining of ``New Uses'' as requested by Senator Inouye at 
the hearing. I hope that staff will add any appropriate citations that 
are missing from the draft concerning statutory mandates which should 
be excluded from the right given to the Pueblo in Section 5 of S 2018 
to ``consent to new uses''.
    I will try to fax the amendment directly to Senator Inouye's 
office, but would appreciate it if your office provided it to him as 
well, along with the cover letter to him which I am also enclosing.
    Thank you for your initiative in trying to resolve this 
controversy.
            Very truly yours,
                                           Anita P. Miller.
                               Co-Chair, Sandia Mountain Coalition.
Supplemental Answers to Questions Fromr Republican Committee Members by 
                              Anita Miller
    1. I suggest the following definition of ``trust'', as used in the 
Title of the Act and name of the Area:
          (a) TRUST: ``trust'' as used in the title of this Act and in 
        the name of the Area does not confer upon the Area the 
        customary attributes of ownership of territory by the United 
        States to be held in trust for an Indian Tribe. As used in the 
        title and name of the Area, ``trust'' connotes the Pueblo of 
        Sandia's cultural interest in the Area. ``Trust'' as used in 
        the title of this Act and in the name of the Area is also 
        distinguishable from the word ``trust'' as used in Section 8(e) 
        herein, as it refers to the La Luz Tract and subsequent 
        acquisition by the Pueblo of private land within the Area.
    2. ( ) NEW USES AND ACTIVITIES
    A definition of ``New Uses and Activities'' is attached hereto as 
Appendix 1. This definition is taken in part from the Management 
Agreement signed by the Pueblo of Sandia, the United States Departments 
of Justice, Agriculture and the Interior, and the Sandia Peak Tram 
Company, but not signed by Bernalillo County, the City of Albuquerque 
and the Sandia Mountain Coalition. We want the Management Agreement 
``decoupled'' from S. 2018, as covered in our oral and written 
testimony.
    We like the definitions of ``existing uses and activities'', 
``modified uses and activities'' and ``new uses and activities'' in the 
Management Agreement, however, as supplemented in discussions this week 
with local Forest Service officials, and think that they should be 
included in the Act for clarification, even though they will make the 
Act quite a bit longer. They will eliminate possible controversy over 
whether something proposed by the Forest Service is a ``new use'' 
subject to Pueblo consent, or a ``new activity'', perhaps not subject 
to Pueblo consent. We have also added specific exceptions to the 
Pueblo's right of consent.
    ( ) NATIONAL FOREST CHARACTER: ``National Forest character'' means 
the characteristics of natural, undeveloped wilderness attributed to 
National Forest land which enhance its spiritual and recreational use 
and enjoyment by all citizens.
    3. I would like to see this legislation specifically withdraw or 
supersede the Leshy Opinion, if that is legally or politically 
feasible. I believe that the Leshy Opinion authorizes tribes which have 
not availed themselves of the Indian Claims Commission Act and Quiet 
Title Act to seek ``resurveys'' from the Secretary of the Interior, 
which in reality are stale claims which should have been asserted 
within the proper time limits for doing so. This ``end run'' will most 
likely result in new claims by other Native and ethnic groups in New 
Mexico.
    As for the legislation, itself, it probably will encourage Pueblos 
in New Mexico and Indian Tribes nationally to make claims which may or 
may not have merit, and if they are denied, litigate them in hopes of 
obtaining a settlement gives them a ``sense of ownership'' and greater 
authority in the management of the land claimed, as S. 2018 will do for 
the Sandia Pueblo.
    4. This claim differs from Spanish Land Grant claims in Northern 
New Mexico as follows:
          (a) Spanish land grants for Indian Pueblos were made under 
        different ``rules'' than land grants to Spanish individuals and 
        ``communities''. Spanish land grant communities were laid out 
        according to the ``Laws of the Indies''. The Church and Plaza 
        were at the center of the grant, surrounded by private homes 
        and gardens. The ``outer'' lands were for grazing in common by 
        the community. After the United States acquired New Mexico, the 
        ``common lands'', which were not ``owned'' by individuals, were 
        either appropriated into National Forests, or ``stolen'' by 
        unscrupulous ranchers, who recorded deeds in their ovvn names. 
        In some cases, Anglo ranchers and merchants accepted deeds to 
        individual parcels within land grants as security for loans 
        given to land grant members during hard financial times.
          The descendants of land grant communities are trying to get 
        back the ``common lands'' which are now in National Forests. I 
        believe that the New Mexico Congressional Delegation is now 
        working on legislation to enable land grant heirs to reopen 
        land grant claims against the United States.
          (b) The Sandia Pueblo Claim is not based on allegations of 
        expropriation of Pueblo land by the United States as are the 
        Spanish Land Grant claims. The Sandia claim alleges that the 
        survey done by Clements did not follow the proper Eastern 
        Boundary, as set forth in the David Whiting translation 
        confirmed in its patent issued in 1862. It believes that since 
        the survey was incorrect, all that's needed is to resurvey and 
        ``correct'' the patent.
          As you know, we believe that Whiting deliberately 
        mistranslated the original Sandia Pueblo land grant documents, 
        still in the possession of the Pueblo, by saying that the 
        Eastern boundary of the Pueblo was the ``main ridge'', rather 
        than ``[facing] the ``Sierra Madre'' and changing other 
        boundary ``calls'' as well. Since Whiting actually confirmed 
        the Clements survey, however, which more accurately reflects 
        the ``four square leagues'' formal Pueblo, which the Grant 
        documents specifically describe, we do not believe that the 
        claim has merit.
    I don't believe that S. 2018 will specifically set a precedent for 
non-Indian Spanish Land Grant claims. I think, however, that Spanish 
Land Grant heirs will be encouraged by the success of the Sandias, who 
didn't raise their claim for 250 years, to press forward with their 
claims, which they have asserted continuously since their land was 
placed in the public domain.
                              *    *    *
              draft amendments ``new uses or activities''
                               amendment
    Add a definition to Section 3. Definitions as follows:
    (NEW MATERIAL)
    ( ) USES OR ACTIVITIES: ``Uses or Activities'' means those uses and 
activities on Federally owned land which are authorized by a special 
use authorization issued at the discretion of the Secretary. ``Uses or 
Activities'' also includes uses and activities within the statutory 
discretion granted to the United States Forest Service's for management 
of National Forest and National Wilderness areas.
    ( ) EXISTING USES OR ACTIVITIES. ``Existing Uses or Activities'' 
means uses and activities occurring in the Area at the time the Act is 
enacted, or which have been authorized in the Area after 11/1/95. These 
uses and activities include, but are not limited to: National Forest 
System authorized trails, trailheads, roads, picnic areas, structures, 
parking lots and facilities; routine road and trail maintenance; all 
closure orders applicable to the Area; the recreation fee demonstration 
program; animal damage and disease control measures; access to Tram 
facilities outside the Area; and all recreational activities within the 
Area.
    Existing recreational activities and uses include: the La Luz Run, 
running, jogging, hang gliding, parasailing, back-country camping, 
meditation, spiritual renewal, religious observances, picnicking, 
cross-country skiing, trapping, interpretation education, hiking, 
biking, rock climbing, bird watching, wildlife viewing, walking, dog 
walking, bow hunting, snow shoeing, driving, skating, sledding, 
horseback riding photography, painting, sketching, geo-caching, etc. 
Some recreational activities require special use authorizations and 
some do not. To the extent that the Sandia Peak Tram Company requires 
access to lands not described in the December 1, 1993 special Use 
Permit, but within the non-wilderness area adjacent to the tram line, 
for maintenance or equipment replacement, access to and use of those 
lands shall be deemed an ``existing use or activity'' for the purposes 
of this Act.
    The Forest Service retains its authority to regulate all existing 
uses or activities, and, where appropriate, to modify, suspend or 
revoke all special use authorizations.
    ( ) MODIFIED USES OR ACTIVITIES: ``Modified Uses or Activities'' 
means existing uses or activities which are being modified or 
reconfigured, but which are not being significantly expanded. Examples 
include a trail or trailhead being modified, such as to accommodate 
handicapped access, or improved, a parking area being reconfigured 
though not expanded, or a special use authorization for a group 
recreation activity being authorized for a different use area or time 
period.
    The Forest Service retains its authority to regulate modified or 
reconfigured uses or activities.
    ( ) NEW USES OR ACTIVITIES: ``New Uses or Activities'' means uses 
or activities not occurring in the Area at the time the Act is enacted 
and not listed in the list of existing uses, as well as existing uses 
or activities that are being modified such that they significantly 
expand or alter their previous scope, dimensions, or impacts on the 
land, water, air and/or wildlife resources of the Area. New uses or 
activities may include but are not limited to: a new trail, trailhead, 
road, picnic area, parking lot, or significant new structure or 
facility in support of these features; new recreation or other 
activities not occurring in the Area on, the date of enactment of the 
Act, but otherwise permissible in National Forest and wilderness areas; 
and new special use authorizations and new rights-of-way.
    The requirements of Pueblo consent in Section 5.(a)(2)(A) do not 
apply to the following new uses or activities:
          (1) new uses or activities that are categorically excluded as 
        categorical exceptions from documentation in an EIS or EA (7 
        CFR 1.b.3 and FSH 31 1.a) or to activities undertaken to comply 
        with the Endangered Species Act of 1973, Amended 1996 (ESA, 16 
        U.S.C. Chapter 35, Sections 1531-1244 (1973, 1996) relating to 
        species and habitat preservation; or
          (2) uses or activities that would lead to further physical 
        development of the Piedra Lisa Tract, including but not limited 
        to the right of reasonable access to the property, pursuant to 
        (cite statute guaranteeing access to inholdings).
          (3) uses or activities to authorize the operation and 
        maintenance of the Sandia Peak Tram and associated facilities; 
        or
          (4) public occupancy and use for noncommercial recreational 
        purposes; or
          (5) any structure or activity deemed essential for the 
        control of natural or human-caused forest fires and any 
        rehabilitation required as a result of such fires to address 
        damage to Forest and wilderness land, water wildlife and other 
        resources, including but not limited to construction of fire 
        watch towers and communication facilities, aerial and ground 
        spraying of fire retardants, ``burns'' to control underbrush 
        and construction of flood control structures; or
          (6) any structure or activity deemed essential for the 
        control of natural and human-caused disasters, including but 
        not limited to flooding, landslides, avalanches, rock slides, 
        poisoning of air, water or wildlife, and any rehabilitation 
        required as a result of such disasters to address damage to 
        Forest and wilderness land, water, wildlife and other 
        resources, including but not limited to flood control 
        structures, structures to control landslides, avalanches, rock 
        slides or poison; or
          (7) any structure or activity related to national security 
        and defense, including but not limited to communications 
        structures, placement of weapons and land and aerial 
        reconnaissance; or
          (8) any structure or activity deemed appropriate by the 
        Forest Service for the control of infection and/or disease in 
        humans, animals or plants, including but not limited to the 
        construction of corrals or other structures for quarantine;
          (9) proposed new uses which address compliance with or 
        mandates required by the following Federal Statutes:
                  Statutes related to fire management, including but 
                not limited to the National Environmental Policies Act 
                (NEPA), 42 U.S.C. Sections 4321-4347 (1970)
                  Americans with Disabilities Act of 1990 (ADA), 42 
                U.S.C. Chapter 126, Sections 12101-12213 (1990)
                  Statutes mandating construction of communications or 
                defense facilities in the area.
                  Statutes related to disease control
          (10) Any proposed new or modified use or activity within the 
        authorized management discretion of the United States Forest 
        Service which minimally increases the gross physical 
        development of the Area, including, but not limited to 
        relocation of trails, picnic grounds and other facilities 
        existing on the effective date of this Act, establishment of 
        manned or automatic fee stations, kiosks or signposts for 
        posting of notices to Area users;
          (11) Emergency decisions within the management authority of 
        the Forest Service and other Federal, State and local agencies 
        which affect the immediate health, safety and welfare of the 
        citizens of the United States and New Mexico.
                               amendment
SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA
    (a) GENERAL--The Pueblo shall have the following rights and 
interests in the Area:
    (2) rights in the management of the Area specified in this Act 
which include
    (A) the right to consent or withhold consent to new uses or 
activities as defined and limited in Section 3 herein.
                                 ______
                                 
  Responses by Tim Cummins, Board of County Commissioners, Bernalillo 
County, New Mexico to Supplemental Questions from Republican Committee 
                                Members
    Question 1. I understand that the Sandia Mountain Coalition has 
stated it generally supports S. 2018, but would suggest some 
modifications. What specific changes would the Sandia Mountain 
Coalition like to see in this legislation please provide us specific 
legislative language to address your concerns?
    Answer. Although the Sandia Mountain Coalition and Bernalillo 
County share concerns with S. 2018, the following response is from 
Bernalillo County.
    The veto power over new uses by the County of Bernalillo 
unilaterally, the County of Sandoval unilaterally, or Sandia Pueblo 
unilaterally is of great concern to us. Any of these three (3) parties 
can veto a new use by themselves. There is no further discussion or 
appeal process. The County of Bernalillo strongly recommends the 
elimination of veto power for the County of Bernalillo, the County of 
Sandoval and the Sandia Pueblo. Is a handicapped ramp a new use? Is a 
new trail a ``new'' use? (p. 7, Sec. 5(a)(3)).
    The addition of the following definitions would somewhat alleviate 
the problems we see with the veto powers.
    USES OR ACTIVITIES: ``Uses or Activities'' means those uses and 
activities on Federally owned land which are authorized by a special 
use authorization issued at the discretion of the Secretary. ``Uses or 
Activities'' also includes uses and activities within the statutory 
discretion granted to the United States Forest Service's for management 
of National Forest and National Wilderness areas.
    EXISTING USES OR ACTIVITIES. ``Existing Uses or Activities'' means 
uses and activities occurring in the Area at the time the Act is 
enacted, or which have been authorized in the Area after 11/1/95. These 
uses and activities include, but are not limited to: National Forest 
System authorized trails, trailheads, roads, picnic areas, structures, 
parking lots and facilities; routine road and trail maintenance; all 
closure orders applicable to the Area; the recreation fee demonstration 
program; animal damage and disease control measures; access to Tram 
facilities outside the Area; and all recreational activities within the 
Area.
    Existing recreational activities and uses include: the La Luz Run, 
running, jogging, hang gliding, parasailing, back-country camping, 
meditation, spiritual renewal, religious observances, picnicking, 
cross-country skiing, trapping, interpretation education, hiking, 
biking, rock climbing, bird watching, wildlife viewing, walking, dog 
walking, bow hunting, snow shoeing, driving, skating, sledding, 
horseback riding photography, painting, sketching, and geo-caching. 
Some recreational activities require special use authorizations and 
some do not. To the extent that the Sandia Peak Tram Company requires 
access to lands not described in the December 1, 1993 special Use 
Permit, but within the nonwilderness area adjacent to the tram line, 
for maintenance or equipment replacement, access to and use of those 
lands shall be deemed an ``existing use or activity'' for the purposes 
of this Act.
    The Forest Service retains its authority to regulate all existing 
uses or activities, and, where appropriate, to modify, suspend or 
revoke all special use authorizations.
    MODIFIED USES OR ACTIVITIES: ``Modified Uses or Activities'' means 
existing uses or activities which are being modified or reconfigured, 
but which are not being significantly expanded. Examples include a 
trail or trailhead being modified, such as to accommodate handicapped 
access, or improved, a parking area being reconfigured though not 
expanded, or a special use authorization for a group recreation 
activity being authorized for a different use area or time period.
    The Forest Service retains its authority to regulate modified or 
reconfigured uses or activities.
    NEW USES OR ACTIVITIES: ``New Uses or Activities'' means uses or 
activities not occurring in the Area at the time the Act is enacted and 
not listed in the list of existing uses, as well as existing uses or 
activities that are being modified such that they significantly expand 
or alter their previous scope, dimensions, or impacts on the land, 
water, air and/or wildlife resources of the Area. New uses or 
activities may include but are not limited to: a new trail, trailhead, 
road, picnic area, parking lot, or significant new structure or 
facility in support of these features; new recreation or other 
activities not occurring in the Area on the date of enactment of the 
Act, but otherwise permissible in National Forest and wilderness areas; 
and new special use authorizations and new rights-of-way.
    The requirements of Sandia Pueblo consent in Section 5.(a)(2)(A) do 
not apply to the following new uses or activities:
    (1) new uses or activities that are categorically excluded as 
categorical exceptions from documentation in an EIS or EA (7 CFR 1.b.3 
and FSH 31 1.a) or to activities undertaken to comply with the 
Endangered Species Act of 1973, Amended 1996 (ESA, 16 U.S.C. Chapter 
35, Sections 1531-1244 (1973, 1996) relating to species and habitat 
preservation; or
    (2) uses or activities that would lead to further physical 
development of the Piedra Lisa Tract, including but not limited to the 
right of reasonable access to the property, pursuant to (cite statute 
guaranteeing access to inholdings).
    (3) uses or activities to authorize the operation and maintenance 
of the Sandia Peak Tram and associated facilities; or
    (4) public occupancy and use for noncommercial recreational 
purposes; or
    (5) any structure or activity deemed essential for the control of 
natural or human-caused forest fires and any rehabilitation required as 
a result of such fires to address damage to Forest and wilderness land, 
water wildlife and other resources, including but not limited to 
construction of fire watch towers and communication facilities, aerial 
and ground spraying of fire retardants, ``burns'' to control underbrush 
and construction of flood control structures; or
    (6) any structure or activity deemed essential for the control of 
natural and human-caused disasters, including but not limited to 
flooding, landslides, avalanches, rock slides, poisoning of air, water 
or wildlife, and any rehabilitation required as a result of such 
disasters to address damage to Forest and wilderness land, water, 
wildlife and other resources, including but not limited to flood 
control structures, structures to control landslides, avalanches, rock 
slides or poison; or
    (7) any structure or activity related to national security and 
defense, including but not limited to communications structures, 
placement of weapons and land and aerial reconnaissance; or
    (8) any structure or activity deemed appropriate by the Forest 
Service for the control of infection and/or disease in humans, animals 
or plants, including but not limited to the construction of corrals or 
other structures for quarantine;
    (9) proposed new uses which address compliance with or mandates 
required by the following Federal Statutes:
    Statutes related to fire management, including but not limited to 
the National Environmental Policies Act (NEPA), 42 U.S.C. Sections 
4321-4347 (1970).
    Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Chapter 
126, Sections 12101-12213 (1990).
    Statutes mandating construction of communications or defense 
facilities in the area.
    Statutes related to disease control.
    (10) Any proposed new or modified use or activity within the 
authorized management discretion of the United States Forest Service 
which minimally increases the gross physical development of the Area, 
including, but not limited to relocation of trails, picnic grounds and 
other facilities existing on the effective date of this Act, 
establishment of manned or automatic fee stations, kiosks or signposts 
for posting of notices to Area users;
    (11) Emergency decisions within the management authority of the 
Forest Service and other Federal, State and local agencies which affect 
the immediate health, safety and welfare of the citizens of the United 
States.
SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA
    (a) GENERAL--The Pueblo shall have the following rights and 
interests in the Area:
    (2) rights in the management of the Area specified in this Act 
which include
    (A) the right to consent or withhold consent to new uses or 
activities as defined and limited in Section 3 herein,
    2) The County of Bernalillo feels strongly that the Settlement 
Agreement and the Management Act should he ``de-coupled'' from the 
legislation.
    The County position is that the Legislation, S. 2018, should 
control independently and not compromise the Legislation with the 
ambiguous language of the Settlement Agreement or Management Act. 
Delete all references to the Settlement Agreement and Management Act.
    In addition to the de-coupling, similar language problems 
culminating in ambiguities in the legislation can be corrected as 
follows:
    a) Define ``Trust'' on page 4, Section 3 (o.) to be:
    TRUST. ``Trust'' as used in the title of this Act and in the name 
of the Area does not confer upon the Area the customary attributes of 
ownership of territory by the United States to he held in trust for an 
Indian Tribe. As used in the title and name of the Area, ``trust'' 
connotes the Pueblo of Sandia's cultural interest in the Area, 
``Trust'' as used in the title of this Act and in the name of the Area 
is distinguishable from the word ``trust'' as used in Section 8(e) 
herein, as it refers to the La Luz Tract and subsequent acquisition by 
the Pueblo of private land within the Area.
    b) Although some of the language has been changed in this 
legislation, there are still places where language is still not 
``parallel'' for the public and the Sandia Pueblo. Section 4(a)(1) and 
4(a)(3) on page 6 should state ``to recognize and protect in perpetuity 
the Pueblo's rights, interests and uses in and to the Area.'' Section 
(a)(3) should also read ``to recognize and protect in perpetuity the 
public's longstanding, rights, interests, and uses in and to the 
Area.''
    3) The Act states there is no exemption from applicable federal 
wildlife protection laws but an exemption to that exemption does not 
allow prosecution if a person exercises traditional and cultural use 
rights. For safety and other purposes, particularly sport hunting, how 
broad is this? (p. 11, Sec. 6, lines 11-25)
    4) There is always complexity involved when discussing and setting 
criminal and civil jurisdiction. Certainly this places unwary residents 
in a very difficult position. The County thinks the present system of 
criminal jurisdiction would work best. The Sandia Pueblo should only 
have jurisdiction over crimes classified as misdemeanors. The Sandia 
Pueblo should have no jurisdiction over crimes committed by non-Native 
Americans. (p. 12, Sec. 7)
    The County of Bernalillo, again for safety of all residents, has 
concerns regarding jurisdiction over sport and recreation hunting. The 
Pueblo's regulations being ``substantially similar'' to those of New 
Mexico State Game and Fish is going to he problematic. Who will enforce 
these ``substantially similar'' regulations? (p. 14, Sec. 7(b)(3)(B)) 
This sport and recreational hunting Section may have to have its own 
separate civil and criminal jurisdiction ``spelled out.''
    Suggested amendments for criminal and civil jurisdiction are as 
follows:
    a) Section 7(a)(5) would read, ``The Pueblo shall not have criminal 
jurisdiction over any non-Indian.
    b) Section 7(b)(4) between 7(b)(3) and 7(b)(4) add the language 
``The Pueblo shall not have regulatory, adjudicatory or taxation 
jurisdiction over any non-Indian.
    c) Section 7(b)(5) would read ``The Pueblo shall not have criminal 
jurisdiction over any non-member.
    d) Section 7(b)(#) between 7(b)(3) and 7(b)(4) add the language 
``The Pueblo shall not have regulatory, adjudicatory or taxation 
jurisdiction over any nonmember.
    There are numerous Indian law cases supporting these four 
amendments.
    5) I believe all parties should have their attorneys fees 
reimbursed for working on these issues that have benefited the general 
public. I understand there is past precedent to do this with these 
types of issues. One such precedent is the dispute between private land 
owners and the Pueblo of Santo Domingo in New Mexico. Public Law 101-
556, Section 4, provided for payment to the affected landowners of 
approximately $1.6 million.
    A suggested amendment to provide for attorneys fees should follow 
the one existing sentence of Section 14(a) as follows: ``The County of 
Bernalillo, the Sandia Pueblo, and any person who owns or has owned 
property within the disputed claim area referred to in this Legislation 
and who has incurred actual costs in participating in the 
administrative, legislative, or court proceedings related to this title 
dispute may apply for reimbursement of legal fees, costs and expenses. 
Any reimbursed expenses to any one party shall not exceed 
$750,000.00.''
    There are other issues such as the non-applicability of new federal 
laws or amendments to existing federal laws that will not apply to the 
Claim Area (p. 7 and p. 9) which should be stricken: the payment of 
money to the Pueblo should Congress ever diminish the wilderness of the 
Claim Area (p. 10, lines 17-25); and the withdrawal of the Leshy 
opinion and the vacation of Judge. Greene's opinion that should occur 
in the legislation to the extent legally possible.
    Question 2. On page 7 of your testimony you argue that this case 
has never been heard on the merits of the case, yet Mr. Leshy and 
Governor Paisano both act as if the case was won in the District of 
Columbia District Court of Appeals. Could you document your contention?
    Answer. The U.S. District Court for the District of Columbia only 
dealt with cross-motions for Summary Judgment. Summary judgment is 
granted when there is no genuine issue of material fact and the moving 
party is entitled to judgment as a matter of law. Judge Harold H. 
Greene stated that the rule of a court in reviewing final agency 
decisions is limited and Section 706 of the Administrative Procedures 
Act provides that a court may set aside an agency action only where it 
finds the action ``arbitrary, capricious. an abuse of discretion, or 
otherwise not in accordance with law.
    Judge Greene goes on to say the Tarr opinion favoring the lands of 
Pueblo was issued without relying on the law-standing policy of Indian 
favoring interpretations. In other words, there was ``sufficient 
ambiguity'' to trigger the Indian-favoring policy of interpretation in 
their favor. Judge Greene goes on to say, ``The Court is perplexed that 
that Department dared claim lack of ambiguity in the present case.'' 
Using more detail, Judge Greene Goes on to say, ``while the 
congressional intent to confirm the land that the Pueblo already owned 
may be quite clear, the question of exactly what land the Pueblo owned 
at the time of the 1858 statute is not clear at all.'' This is clearly 
an issue of material fact and summary judgment should not have been 
rendered for the Sandia Pueblo. There was no full trial before Judge 
Harold Greene.
    With regard to the United States Court of Appeals, the three-judge 
panel heard the United States District Court's remand order and grant 
of Summary Judgment to Sandia Pueblo. It was not an appeal of a full 
trial on the merits. The United States Court of Appeals decided the 
Order from Judge Greene regarding remand to Interior and summary 
judgment in favor of Sandia Pueblo was not a final order and therefore 
the appeal was dismissed. The District Court's Order ``neither entered 
a judgment declaring that the 1748 Spanish land grant--identifies and 
designates the true boundaries of the Pueblo nor directed Interior to 
issue a new survey.'' The court remanded the case to Interior for 
further proceedings stating the Department of the Interior should re-
open the record to solicit additional comments. This case has still not 
had a full hearing on the merits. The case is presently remanded to the 
U.S Department of the Interior District Court Opinion and U.S. Court of 
Appeals Opinion attached as Exhibit 1 and 2.
    Question 3. As a signature (sic) to Settlement Agreement could you 
provide us with your understanding of what a new use is and your 
understanding of the term ``preserve National Forest Characteristic''?
    Answer. The County of Bernalillo did not sign the Settlement 
Agreement but would submit that almost any change ``in the field'' 
could be a new use. The definitions of uses suggested to clear major 
problems with the veto power in the legislation given unilaterally to 
the Sandia Pueblo, the County of Bernalillo, and the Pueblo of Sandia 
is presented in response to number 1 of this document.
    Our interpretation of ``preserving National Forest 
Characteristics'' would be that the public land be left in its natural 
state open to all citizens (including future population growth) for 
their spiritual and recreational enjoyment.
    Question 4. If we agree to S. 2018 are you comfortable that the 
fire protection that is needed by the citizens of your county will be 
provided?
    Answer. We will be comfortable that the fire protection needed by 
our citizens is adequate if language in the bill makes it clear that 
the Forest Service has total discretion to provide for fire protection, 
prevention, suppression and rehabilitation. This would include making 
fire protection exempt from any designation as a new use and certainly 
not subject to the consent of the Pueblo of Sandia, the County of 
Bernalillo, or the County of Sandoval.
    Question 5. How will the citizens of your county feel if a five 
dollar per day recreation user fee is imposed to enter into this area? 
Under this legislative proposal, is it your understanding that you will 
have the right to object to a recreation user fee?
    Answer. It is our experience that a recreation user fee or parking 
fee is presently being charged by the Forest Service and that an 
individual we believe to be a volunteer collects it. Some citizens may 
feel a $5.00 [per vehicle] access fee is a restriction to access but 
for the most part, it would seem a user fee to maintain the area would 
be accepted. The County of Bernalillo never requested the veto power 
given to it in S. 2018. The County of Bernalillo would not intend to 
veto access fees but would certainly like to be consulted concerning 
any significant fee increases.
    Question 6. Are you comfortable that your needs, and the needs of 
all private property owners iii your county for rights-of-way are 
completely protected in this legislative package? How long do you think 
that the counties needs will be met under this agreement?
    Answer. We are pleased that the private property owners have their 
rights of way reasonably protected in this legislative package. 
However, they will be completely protected if the Management Agreement 
and Settlement Agreement are de-coupled from the legislation and other 
language suggestions to eliminate ambiguities arc adopted. This is the 
only way that our long sought goal of permanence can be achieved.
                                 ______
                                 
                                          Pueblo of Sandia,
                                       Bernalillo, NM, May 8, 2002.
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen 
        Senate Office Building, Washington, DC.
Hon. Daniel Inouye,
Chairman, Senate Committee on Indian Affairs, Hart Senate Office 
        Building, Washington, DC.

Re: S. 2018--Answers to Supplemental Questions submitted following 
        April 24, 2002, hearings before the Senate Energy and Natural 
        Resources and hidian Affairs Committees

    Dear Senators Bingaman and Inouye: On behalf of the Pueblo of 
Sandia, I want to express my sincere thanks to both of you for the 
opportunity to share the Pueblo's thoughts and concerns on S. 2018. I 
cannot emphasize enough how important this issue is to our people, and 
to the continuing vitality of our culture and traditions. Your efforts 
to address our concerns are sincerely appreciated, and I am pleased to 
submit the enclosed answers to supplemental questions posed to me to 
assist in further consideration of our position.
    We look forward to working with the Committees toward a fair and 
just resolution of our claim to Sandia Moantain and, of course, would 
be pleased to provide you with any further information that you may 
require.
            Sincerely,
                                            Stuart Paisano,
                                                          Governor.
[Enclosure.]
          Governor Paisano's Answers to Supplemental Questions
    Question 1. Solicitor Myers testified that it would be better to 
legislate all necessary provisions of the settlement agreement and the 
management plan and forego incorporating these documents by reference. 
Would you support this?
    Answer. Yes, so long as all substantive protections in the 
settlement agreement and management plan are placed in the legislation. 
The Pueblo would be pleased to work With the Committee to accomplish 
this.
    Question 2. You recommended an amendment to the bill that exempts 
the Area from the National Forest Management Act and the Cibola 
National Forest Land and Resource Management Plan because you want to 
``be certain the Management Plan is not foreclosed by any of these 
authorities.'' Why do you believe such a broad exemption is necessary? 
What provisions of the Management Plan do you believe would be 
foreclosed by the NFMA and the forest plan?
    Answer. These provisions were included in the Settlement Agreement 
to be certain that the benefits the Pueblo received under the 
Management Plan were not in conflict with these other statutes and 
regulations. The parties to the settlement negotiations, including the 
Department of Agriculture's representatives, all thought that this was 
necessary and appropriate, given the Area's unique and protected 
status. For example, because grazing, timber production, and mineral 
production are prohibited in the Area, laws such as the Forest and 
Rangeland Renewable Resourccs Planning Act of 1974 have no relevance or 
applicability to the management of the Area. Likewise, because the Area 
is to have its own Management Plan, the Area should not be subject to 
the Cibola National Forest Land and Resource Management Plan. 
Explicitly excluding these statutes, regulations, and management plan 
provides a measure of certainty and permanence that would not otherwise 
exist if the Area remained under the existing land management process 
or was subject to other laws which are inconsistent with the Settlement 
Agreement, the Management Plan, or ratifying legislation. The non-
applicability of certain statutes, regulations, and management planning 
processes was also something that the Pueblo negotiated for as part of 
the consideration for resolving our title claim to help ensure that our 
management rights are protected.
    If the benefits and substantive provisions contained in the 
Management Plan are specifically included in the legislation (see 
answer to Question 1), perhaps these exemptions would he unnecessary so 
long as the legislation clearly provides that in event or a conflict or 
inconsistency with other statutes, this Act controls.
    Question 3. If section 5(c) of S. 2018 were amended to require the 
U.S. government to compensate you if the Forest Service approves any 
new uses in the Area (with exceptions for safety or emergency 
measures), would you support such an amendment in lieu of the right to 
consent or withhold consent to new uses?
    Answer. No. An essential part of the settlement for the Pueblo is 
absolute and perpetual protection against further development of our 
sacred Mountain as a result of administrative decisions by the Forest 
Service. Despite the current commitment of the Forest Service to avoid 
new development, the history of the Forest Service's administrative of 
the Mountain counsels in favor of the Pueblo consent provision so as to 
avoid further development in thc long run. Congress obviously retains 
the authority to approve new uses and S. 2018 should be amended to 
provide that if Congress does so, the Pueblo would be entitled to 
compensation. The purpose of such an amendment would simply be to 
provide a disincentive for such Congressional action, as no amount of 
money could adequately compensate the Pueblo for future incursions on 
the Mountain.
    Question 4. Governor, this legislation gives the Pueblo of Sandia 
complete authority over the the traditional and cultural uses in this 
area, including the religious activities of other Native Americans. 
Given the long history of Hispanic American habitation in the area, in 
you opinion would your Tribe also have authority over non-native 
Americans who may want to visit the area to participate in religious 
activities that comply with the Wilderness Act?
    Answer. No. The bill does not confer any authority on the Pueblo 
over non-indians, and the Pueblo does not seek such authority.
    Question 5. Governor, you've heard Mr. William Myers state that the 
Tram right-of-way is not part of the Area covered in the Settlement 
Agreement. Mr. Walter Stern's testimony, on page 7, suggest that S. 
2018 ``clears title to private lands, subdivisions and lands subject to 
the Tram Company's Special Use Permit (encompassing the tram line and 
associated facilities) will not be subject to the special land 
management regime established under this Bill.'' Do you agree with both 
Mr. Myers and Stern's interpretation of the Settlement Agreement and 
this Senate Bill 2018?
    Answer. Yes. Section 8(d) of S. 2018 so provides, and also states 
that if any lands dedicated to the Tram facilities should in the future 
be excluded from the Tram's special use permit through expiration, 
termination or amendment, those lands would then be included in the 
Area and subject to the special land management regime established in 
S. 2018.
    Question 6. You have stated that you feel Pueblo consent to new 
uses will ``best serve'' the ``perpetual preservation of the 
wilderness,'' and that you disagree the counties should have the same 
rights to consent. Please explain why you feel the counties' right to 
consent, or the current federal processes involving public input into 
federal land use, does not adequately serve to protect the area?
    Answer. Although the Pueblo believes its legal ownership of the 
Mountain is clearly established by the 1858 Act of Congress confirming 
our eastern boundary as the main ridge of Sandia Mountain, we agreed to 
extinguishment of that title, continued Forest Seervice management and 
public access to these lands, so long as we could be assured that there 
would be no additional incursions or development on our sacred 
Mountain. Our Pueblo has been one with the Mountain since before 
recorded time and will be forever. We need assurance that this Mountain 
will be preserved and protected forever (see answer to Question No. 3). 
Federal policies, such as wilderness protection, could change. Policy 
changes often have happened to the detriment of Native American rights.
    We oppose the Counties' having consent authority comparable to ours 
because they have no ownership interest in the Mountain like we do, nor 
will they necessarily be perpetually committed to its preservation 25 
or 50 years from now, as we will be. Also, unlike the Pueblo, they did 
not contribute any property interests (road and trail easements) that 
are essential to the public's continued use of the Area. In addition, 
we understand neither Sandoval nor Bernalillo County sought this 
consent authority.
    Finally, we submit that the interests of the public are adequately 
represented as to new uses and other management issues by the Forest 
Service.
    Question 7. You have stated that you support S. 2018 because it 
will ``codify the Pueblo's right to use the Mountain to continue [your] 
centuries-old traditions.'' Do you believe that you currently do not 
have these statutory rights?
    Answer. Yes, I do. Our traditions do not simply require access to 
the Mountain, though this has been infringed in the past by the Forest 
Service. Our traditions and indeed our very way of life require us to 
preserve and protect the Mountain as its stewards. S. 2018 ensures 
thia. I am aware of no existing statute that provides this protection.
    Question 8. Why will you not support this legislation unless it 
contains, for example, exclusive authority to the Pueblo for hunting 
regulation?
    Answer. As I explained in my testimony (and also in answering 
Question 6), the Pueblo made a number of very painful concessions in 
the settlement agreement in order to resolve this controversy. Despite 
our strong claim to legal ownership of the Mountain, we agreed to 
extinguishmnt of our title (subject to the rights and interests 
recognized in the settlement agreement), United States title and Forest 
Service Management of the Mountain, continued unrestricted public 
access to the Mountain, confirmation of all private titles, and road 
and utility easements for the Forest Service and subdivisions.
    The Pueblo stands by and fully supports the settlement agreement as 
a package. But given the strength of our legal claim and the strong 
commitment of the Pueblo to preserving the Mountain, we cannot fairly 
be expected to make additional concessions. The rights and interests we 
retained in the settlement agreement include exclusive authority to 
regulate hunting by our members and members of other tribes we 
authorize to use the Mountain for traditional and cultural purposes.
    Hunting is a very important traditional use of the Mountain for 
Pueblo members. However, game is not nearly as plentiful as it used to 
be, and we originally sought exclusive hunting rights in the Area as a 
way of reducing hunting pressure on the Area's wildlife and ensuring 
the continuation of this traditional activity. But once again we were 
forced to compromise. Under S. 2018 the Pueblo has authority to 
regulate hunting; and trapping by our own members or mernhers of other 
federally recognized tribes we authorize to use the Mountain for 
traditional and cultural purposes. We would not regulate any non-
Indians. We are also willing to enact and enforce regulations 
substantially similar to those of the State and Forest Service 
concerning seasons, game management, types of weapons, proximity of 
hunting and trapping to trails and residences, and comparable safety 
restrictions. We hope these concepts will be acceptable to the 
Congress.
    Question 9. You indicate in your testimony that you will not 
support the changes in S. 2018 unless the Pueblo ``receives 
commensurate benefits in return.'' You suggest a land exchange of all 
wilderness land within Sandoval County. Will you please expand on this 
proposal? And would such a proposal satisfy your claims to the 
remainder of the area, or satisfy you in lieu of this legislation?
    Answer. As I stated in my answer to Question 8, the Pueblo supports 
the settlement agreement as a whole. While S. 2018 is patterned on the 
settlement we agreed to, it does not reduce or eliminate some critical 
elements in that agreement that benefited the Pueblo. If the Committee 
decides to make the changes to the settlement agreement included in S. 
2018, the Pueblo believes Congress should also increase the benefits 
the Pueblo receivds. In my testimony, I suggested a land transfer of 
Mountain lands in Sandoval County to the Pueblo, in exchange for lands 
we have purchased in the Evergreen Hills and La Luz tracts. These lands 
in Sandoval County are virtually all undeveloped, except for the Piedra 
Lisa trail, for which we would grant a permanent easement to the Forest 
Service, and the 160-acre Piedra Lisa tract currently owned by Mr. 
Riordan and others, which would be exempt from the provisions of S. 
2018. The only activities in this pristine and steep mountainous area 
are hiking and rock-climbing, which would continue even if the lands 
were transferred to us. All wilderness and other special restrictions 
on use of these lands contained in the bill would also be imposed on 
the transferred lands.
    If this transfer is included in the bill, the Pueblo could accept 
the more limited provisions in S. 2018 in the south half of the Area 
(such as more limited authority over hunting and trapping by our 
members in that part of the Mountain). The Pueblo would be pleased to 
work with the Committee on specific language or on comparable benefits 
in exchange for supporting the changes S. 2018 makes to the settlement 
agreement--except for the County consent provision, which is 
unacceptable to us.
    I want to emphasize that this land transfer I propose would not be 
sufficient to satisfy our interests in the rest of the area, nor would 
we support it in lieu of the settlement legislation. Our proposal is 
that the provisions of S. 2018 (except the County consent provision) 
would apply intact to the rest of the publicly owned lands in the area, 
and the wilderness protections and limitations on use would also apply 
both throughout the entire area and to the lands transferred to the 
Pueblo.
    Question 10. Mr. Riordan testified that the federal government has 
been attempting to eliminate his right of access. Would you be willing 
to agree to a transportation right-of-way to the Piedra Lisa tract if 
that would help move this legislation forward?
    Answer. No. The Pueblo strongly opposes any new vehicular right-of-
way on the Mountain. S. 2018 preserves any rights Mr. Riordan and his 
partners presently have. The Pueblo would support a provision in the 
bill providing Mr. Riordan's group with compensation from the United 
States for any access rights they may be able to prove under existing 
law.
                                 ______
                                 
                                    San Francisco, CA, May 8, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.

Re: Pueblo of Sandia Land Claim

    Dear Senator Bingaman: What follows are my answers to the follow-up 
questions from Republican Committee Members submitted after the hearing 
on April 24.
    Question 1. In the case of all re-surveys, isn't it the custom and 
practice to utilize past survey notes to reestablish the land lines?
    Answer. I cannot speak knowledgeably about such customs and 
practices.
    Question 2. If the Settlement Agreement sunsets and there is a need 
for re-surveying. If that happened what survey notes would the 
Department of Interiors [sic] surveyors utilize to undertake the 
survey? Would the BLM surveyors utilize the Clements survey notes or 
would they utilize the Bustamante notes? Since neither of these sets of 
notes seem to establish the eastern boundary on the crest of the 
Sandia, what notes could the BLM use to establish the eastern boundary 
at the summit of Sandia Peak?
    Answer. My January 2001 Opinion speaks for itself on the intention 
of the government of Spain regarding the eastern boundary of the Pueblo 
of Sandia. In general, I believe that surveyors of grants should 
attempt to carry out the intention of the grantor.
    Question 3. You indicated during your testimony that you felt a 
strong need to respond to Judge Greens [sic] decision after the 
Settlement Agreement was signed in April of 2000, could you tell us why 
it took you and your staff until January 19, 2001 to complete your 
opinion?
    Answer. As I testified, I had long harbored doubts about the 
correctness of the Tarr Opinion. I had decided, however, not to disturb 
it until a court had had the opportunity to review it. In 1998, the 
district court rejected the Opinion and sent the matter back to the 
Department for further action. The Department and the intervenors 
appealed this ruling to the court of appeals. After the settlement was 
reached in April 2000, the Department (and the Tram Company, I believe) 
moved to dismiss their appeals. But other intervenors continued with 
their own appeals of the district court decision, so there remained the 
possibility that the court of appeals would rule on the merits of the 
appeal. The court of appeals dismissed the appeal in November 2000, on 
the basis that the next step was for the Depatment to move forward with 
the reexamination of the Tarr Opinion that had been directed by the 
district court. Because of that, and because the settlement essentially 
expires on November 15, 2002 unless Congress has taken action, I 
decided it was appropriate to move forward with the reexamination of 
the Opinion in compliance with the court's direction.
    Question 4. During your testimony you indicated that you relied on 
several historians other than Mr. Hordes in preparation of your January 
19, 2001 Solicitors Opinion. Would you provide us with a list of both 
the documents and historians you relied upon to develop your Opinion?
    The January 19, 2001 Opinion contains numerous references to the 
work of other experts. See, e.g., pp. 5-15. The lengthy administrative 
record in this matter contains many historical analyses and studies and 
references to published historical works. Eight attorneys in the 
Solicitor's Office (who are identified at the end of the Opinion) 
worked with me in preparing this Opinion. While I relied extensively 
upon their research, I believe I examned some parts of the record 
myself in the course of preparing the Opinion, and in grappling with 
this issue over the years since 1993. As I testified, I have confidence 
that the conclusions of the Opinion on the matter of historical 
interpretation are sound and would be upheld by the courts.
    Question 5. When did you begin work on your January 19, 2001 
Opinion on this issue?
    Answer. As I testified, I began examining the eastern boundary 
question in the spring or summer of 1993, when the Pueblo asked me to 
reexamine the Tarr Opinion: Over the next seven and one-half years, I 
read and thought about this matter, and had numerous meetiigs and 
discussions about it with attorneys in my office and with officials of 
the Departments of Justice and Agriculture (as well as the Interior). 
As I indicated in response to question #3, although I had done a lot of 
work on this issue, I did not make a final decision to go forward with 
an Opinion until shortly after the Court of Appeals dismissed the 
appeal in November 2000. It was then that, along with the other 
identified members of the Solicitor's office, I began the actual 
process of drafting, the Opinion, buiilding on all our previous work on 
the subject.
    Question 6. Was your opinion made publically available on January 
19, 2001 or on a later date?
    Answer. I believe I directed my staff to distribute the Opinion in 
the usual way that we disseminated such legal opinions, but I do not 
have any specific recollection about when or how it was made publicly 
available.
    Question 7. At what point in your tenure did you begin to consider 
the preparation of your January 19, 2001 Opinion?
    Answer. See responses to question #3 and 5 above.
    Question 8. What was your involvement in the development of the 
T'uf Shur Bien Preservation Trust Area management Plan and the 
Agreement of Compromise and Settlement? Did you review these documents 
prior to there [sic] being agreed to by the Department of the Interior?
    Answer. To the best of my recollection, I did not participate 
directly in these negotiations. The negotiators for the United States 
(attorneys in the Solicitor's Office and the Departments of Justice and 
Agriculture and other officials of these Departments) kept me generally 
apprised of the progress of the negotiations. I was briefed on the 
terms of the settlement fefore final agreement was reached. I do not 
recall whether, prior to final approval, I reviewed the settlement 
documents or made any suggestions or recommendations for change.
    Question 9. Did you review these documents for potential conflicts, 
if so, did you make any recommendations for changes?
    Answer. See ansser to question #8.
    I appreciate the opportunity to testify and submit these answers. 
Please let me know if I can be of any other assistance.
            Sincerely,
                                                     John D. Leshy.
                                 ______
                                 
                                      The Simons Firm, LLP,
                                         Santa Fe, NM, May 8, 2002.
U.S. Senate,
Committee on Energy and Natural Resources, Democratic Staff, 
        Washington, DC.

Re: Hearing on S. 2018--The T'uf Shur Bien Preservation Trust Area

    Committee Members: Pursuant to your instructions of May 1, 2002, 
enclosed please find Mr. Riordan's comments to the extra questions to 
be submitted for the record concerning S. 2018--The T'uf Shur Bien 
Preservation Trust Area.
    Regards,
                                              Thomas A. Simons, IV.
              Responses to Questions From Senator Bingaman
    Question. You indicated in your statement that you are currently in 
litigation with the United States concerning the extent and scope of 
your private property rights associated with the Piedra Lisa. Section 
10(b) was added to the bill to ensure that those private property 
rights, whatever they are, would not be affected by the Act. Can you 
explain why this provision does not address the concerns expressed in 
your statement?
    Answer. Section 10(b) does not adequately protect my private 
property rights in several ways. Before listing some of the specifics 
concerning its inadequacies, please note that I am the owner of an 
inholding, a property surrounded by Cibola National Forest. Therefore, 
it is not just protecting my rights on my 160 acres, but also the pre-
existing rights of ingress and egress to my property across the 
government land.
    In that regard, the bill allows at least the Pueblo the right to 
limit the nature and scope of access to my inholding with an absolute 
veto vote on ``new uses.'' There are no due process or other legal and/
or administrative protections afforded concerning a person or entity 
affected by this veto power. Coupled with this is the fact that ``new 
use'' is undefined in the bill, and therefore open to broad 
interpretation and debate. Therefore, a party holding the veto power 
could argue that an activity constitutes a ``new use'', and then veto 
that use without ever providing an explanation or a remedy to a person 
aggrieved by the veto decision.
    The Bill addresses these problems with every other parcel of 
private property in the affected area by specifically guaranteeing 
certain rights of way in the legislation that protect the rights of 
private property owners. I would like to see my rights protected in a 
similar fashion.
    Once again, thank you for the opportunity to respond further.
                                 ______
                                 
        Supplemental Questions From Republican Committee Members
    Question. If language were included in this legislation that 
guarantees vehicular access to the Piedra Lisa Tract will that satisfy 
your concerns with S. 2013? Would you provide us draft legislation 
language to provide you the protection you think is necessary?
    Answer. If language were included in this legislation that 
guarantees vehicular access to the Piedra Lisa Tract it would satisfy 
my concerns with it, provided certain protections were included in the 
guarantee. The primary concern is that once vehicular access is 
guaranteed, we would desire that the legislation not include the 
ability of any person or entity to limit the actual implementation and 
placement of a paved road or other improvement to the access way to the 
Piedra Lisa Tract.
    The draft legislative language would read something like:
          Under section 8(h).
          (3) Piedra Lisa Tract.
          (A) Road Rights-of-Way.
          In recognition of ingress and egress rights, a vehicular 
        right-of-way for the Piedra Lisa Tract to the public roads 
        located at Juan Tabo Canyon Road (Forest Road No. 333) and 
        Forest Road 445 is granted to the Piedra Lisa Tract appurtenant 
        thereto. The term of this right-of-way shall be irrevocable and 
        in perpetuity. The width of said road right of way shall be 50 
        feet and may be broadened to meet any conditions imposed on 
        said right of way. Any reviews imposed by law or regulation 
        required by any entity for the construction of said road shall 
        be undertaken by and completed at the expense of the entity 
        requiring the review expeditiously. The road right-of-way may 
        be paved, improved or otherwise modified and maintained without 
        the Pueblo's written consent.
          (B) Utility Rights-of-Way to Piedra Lisa Tract
    The Secretary of the Interior shall grant irrevocable utility 
rights-of-way in perpetuity across Pueblo lands to appropriate utility 
or other service providers serving Piedra Lisa Tract, including, but 
not limited to, rights-of-way for electricity, natural gas utility 
service and cable television service. Such rights-of-way shall be 
installed underground. To the extent that enlargement of this utility 
rights-of-way needs enlargement for technologically-advanced 
telecommunication, television, or utility services, the Pueblo shall 
not unreasonably withhold agreement to a reasonable enlargement of the 
easement described above.
    Once again, thank you for the opportunity to respond further.
                                 ______
                                 
            Answers of Stanley M. Hordes to Questions From 
                      Republican Committee Members
    Question 1. The crux of this dispute is over the interpretation of 
the Spanish words, ``sierra madre'' in the Sandia Grant. How do you 
conclude that those words refer to the ``mountain range'' rather than 
the ``main ridge,'' and how do you distinguish this from other grants 
that included the main ridge?
    Answer. As stated in my 1996 Report, an examination of Spanish 
language and etymological dictionaries from the eighteenth to the 
twentieth centuries shows a strong consensus among authorities that 
sierra, although deriving its roots from the Spanish word for the teeth 
of a saw, referred more widely to a mountain range. The 1737 
Diccionario de autoridades defined sierra as ``la cordillera de montes, 
o penascos cortados, por lo que se semeja a los dientes de la sierra,'' 
or ``the range of mountains or large cut rocks, due to their sinularity 
to the teeth of a saw''.\1\ Similarly, the modern Gran diccionario de 
la lengua castellana offered the definition, ``cordillera de montes o 
penascos cortados,'' or ``a range of mountains or large cut rocks''.\2\ 
Joan Corominas' Diccionario critico etymologico de la lengua castellana 
referred to the term as, ``linea de montanas,'' or ``line of 
mountains''.\3\ In another etymological dictionary, Corominas 
explained:
---------------------------------------------------------------------------
    \1\ Diccionario de Autoridades: Diccionario de la lengua castellana 
en que se explica el verdadero sentido de las voces, su naturaleza y 
calidad, con las phrases o modos de hablar, los proverbios o refranes, 
y otras cosas convenientes al uso de la lengua . . . compuesto por la 
Real Academia Espanola, (Madrid: Editorial Gredos, 1737), Tomo 5, p. 
109.
    \2\ Aniceto de Pages, Gran diccionario de la lengua castellana 
(Barcelona: Fomento Comercial del Libro, [nd]), Vol. 5, p. 195.
    \3\ J. Corominas, Diccionario critico etimologico de la lengua 
castellana (Berne: Editorial Francke, 1954), p. 221.

          En el sentido de `linea de montanas', S. X, se trata de una 
        comparacion con el aspecto dentado del perfil de las 
        cordilleras, denominacion arraigada en toda la Peninsula 
        Iberica, Sur de Francia y Norte de Italia hasta el rumano de 
        Macedonia.\4\
---------------------------------------------------------------------------
    \4\ Joan Cororminas, Breve diccionario etimologico de la lengua 
castellana (Madrid: Editorial Gredos), p. 372.
---------------------------------------------------------------------------
          (In the sense of a `line of mountains' (10th century), it 
        relates to a comparison with the dentiled character of the 
        profile of the ranges, a customary denomination in the entire 
        Iberian Peninsula, the south of France, the north of Italy to 
        the Romanian border with Macedonia.)

    One of the few etymological dictionaries to define the complete 
term, sierra madre, was Guido Gomez de Silva's Elsevier's Concise 
Spanish Etymological Dictionary:

          `Sierra Madre (mountain system, Mexico)', literally `Mother 
        Range' (see sierra, madre); it is the major mountain system in 
        Mexico and comprises three ranges--the Sierra Madre Oriental 
        `Eastern Mother-Range', the Sierra Madre Occidental `Western 
        Mother-Range', and the Sierra Madre del Sur `Mother Range of 
        the South'.\5\
---------------------------------------------------------------------------
    \5\ Guido Gomez de Silva, Elsevier's Concise Spanish Etymological 
Dictionary (Amsterdam, London and Tokyo: Elsevier, 1985), p. 487.

    All of the authorities consulted discussed sierra and sierra madre 
in the context of a mountain range, or mountain system. None of the 
Spanish dictionaries, contemporary or modern, defined the words as 
``main ridge,'' or presented any definition in terms of the crest of a 
mountain.
    Neither did the primary archival documentation from the eighteenth 
and early nineteenth centuries present the terms sierra or sierra madre 
in any other than a general locational context. In his visitation of 
the Franciscan missions of New Mexico in 1776, Fray Francisco Athanasio 
Dominguez described the setting of the Pueblo of Sandia:

          The mission is new, founded for the Indians of the province 
        of Moqui who were reduced by Father Menchero in the year 1746. 
        It stands in the middle of the plain on the same site as the 
        old mission which was destroyed in the general uprising of this 
        kingdom. To the east is a sierra called Sandia because there is 
        a pueblo and mission of this name here. Although it does have a 
        connection with the sierra of Santa Fe very high up (via some 
        little hills and mounds), we cannot properly take it to be a 
        continuation of the latter in view of the great distance and 
        few indications; rather we shall call it a Sierra Madre, since 
        it spreads down for a long way with the characteristics of a 
        mother range. [sino que la llamaremos Sierra Me., por quanto 
        para abajo se dilata mui mucho con senas de madre.] The Rio del 
        Norte is about half a league to the west among poplar groves 
        (translation by Eleanor B. Adams and Fray Angelic Chavez in The 
        Missions of New Mexico, 1776).\6\
---------------------------------------------------------------------------
    \6\ Eleanor B. Adams and Fray Angelico Chavez, The Missions of New 
Mexico, 1776 (Albuquerque: University of New Mexico Press, 1956), p. 
138; the original account of Fray Dominguez from which the Spanish 
excerpt derives is curated at the Biblioteca Nacional (Mexico), Legajo 
10, no. 43.

    Other documents of the period shed light on the contemporary 
concept of the Sierra de Sandia as the eastern boundary in the area 
around the Sandia Pueblo. In 1763 representatives of the Pueblo of 
Santa Ana petitioned the Spanish authorities for permission to relocate 
from their ancestral home on the Rio Jemez, to an area north of the 
Town of Bernalillo, on the east bank of the Rio Grande. The property 
that the pueblo wished to purchase extended on the west to the Rio 
Grande, and on the east ``al pie de la Sierra de Zandia'' (``to the 
foot of the Sierra de Sandia'').\7\ Such a specific designation of 
``the foot'' might well provide an indication of the popular 
understanding of the boundary placement of the sierra.
---------------------------------------------------------------------------
    \7\ New Mexico Records Center and Archives (hereafter cited as 
NMRCA), Spanish Archives of New Mexico (hereafter cited as SANM), 
Series I, No. 1349, ``Proceedings over a purchase of lands by the 
pueblo of Santa Ana at the `Paraje de Bernalillo,' '' July 5, 1763.
---------------------------------------------------------------------------
    A more concrete example of how New Mexicans regarded the Sierra de 
Sandia can be seen in a land transfer document at the close of the 
Mexican Period. On March 30, 1846, Lorenzo Perea sold to Jose Leandro 
Perea a tract of land in Bernalillo, whose western boundary extended to 
``la tapia que esta contra el arenal'' (``the wall that is against the 
sandy beach'') and whose eastern boundary was described as ``la sierra 
de Sandia''. The same document included a precise measurement of the 
east-west extent of the property, which ran only forty-eight varas, or 
about 132 feet, from the Rio Grande to the Sierra de Sandia.\8\
---------------------------------------------------------------------------
    \8\ NMRCA, Yrrisari Family Papers, Folder No. 5, Conveyance of 
land, Lorenzo Perea to Jose Leandro Perea, Bernalillo, March 30, 1846, 
``un pedaso de tierra de pan llevar que se compone de la casa para la 
sierra de treinta varas poco mas o menos y de la sitada casa para el 
Rio de dies y ocho varas contigua a dicha tierra la casa de su morada 
del sitado Lorenso Perea la misma que bendio juntamente con la sitada 
derra y todo to demas de plantillos que en ella se containen dicha 
tierra la ubo el bendedor por ercnsia de su finado padre y por compra 
que yso a su finada madre Maria Petra Chaves y son sus linderos por el 
norte y sur con tierras del mesmo comprador por el oriente la sierra de 
Sandia y por el poruiente la tapia que esta contra el arena] y se las 
dio por el presio y cantidad de dosicntos y beinte pesos en dinero de 
buena moneda . . .''; ``a piece of cultivated land that measures from 
the house toward the mountain 30 varas, more or less, and from the said 
house toward the River, 18 varas. Contiguous with the said lands is the 
house occupied by Lorenzo Perea, the same that had been sold with the 
said land, and all the other outbuildings [?] that were contained on 
the said land, inherited by the seller from his deceased father, and 
purchased from his deceased mother, Maria Petra Chaves. The boundaries 
are on the north and south the lands of the said purchaser, on the east 
the sierra de Sandia, and on the west the wall that is against the 
arenal, and it was transferred for the price of 220 pesos cash. . . .''
---------------------------------------------------------------------------
    Nowhere in the contemporary documentation could citation be found 
to the sierra madre or Sierra de Sandia as the crest of the mountain, 
or the ``main ridge''. Rather, evidence from Spanish dictionaries and 
the archival record leads to the conclusion that these terms were used 
as general points of geographic reference. The fact that the eastern 
boundary of the Pueblo of Sandia was articulated in the Act of 
Possession of 1748 as both one league to the east, as well as the 
``Sierra Madre de Sandia'' should not be seen as inconsistent. Indeed, 
the authorities deliberately laid out the boundaries, as much as 
possible, according to those of a ``pueblo formal'', with the eastern 
boundary extending one league from the center of the pueblo, reaching 
just about to the foothills. As an additional general reference point, 
Lieutenant General Bustamante pointed to the mountain range of the 
``Sierra Madre de Sandia'' as lying to the east, suggesting that the 
Spanish authorities interpreted the boundary of the sierra as the 
foothills of the mountains, which represented the beginning of the 
mountain range.
    With regard to distinguishing the grant made to the Pueblo of 
Sandia in 1748 from other grants that may have included a feature 
designated as a ``main ridge,'' one has to understand that Spanish 
royal law and custom maintained different provisions for Indians and 
Spanish settlers. In New Mexico this difference manifested itself in 
the manner by which grants of land were given by the governor of the 
province to each group. As will be discussed in my answer to Question 
2, below, Pueblos were granted four square leagues of land, or one 
league (2.6 miles) in each direction from the center of the Pueblo. 
Hence, any topographical reference contained in the boundary 
descriptions of land grants to Pueblos were of secondary importance, 
serving as descriptors to indicate features that were in the general 
location of the boundaries formed by the four square leagues.\9\ Grants 
to Spanish settlers, in contrast, were not standardized, and often 
included geographical features, as well as boundaries of other land 
grants. The attached plats, photocopied from the National Archives, 
illustrate the differences between the grants issued to Spanish 
settlers, which were irregularly shaped, and whose borders generally 
corresponded to natural features, and those issued to Pueblos, which 
comprised four square leagues, or a little over 17,000 acres, and whose 
boundaries did not correspond to such topographical features.\10\
---------------------------------------------------------------------------
    \9\ The exception was the reference to the Rio Grande as the 
western boundary of the Pueblo of Sandia. Because lands on the west 
side of the Rio Grande were already spoken for, and the assigned league 
of the Pueblo was not able to be extended its full extent to the west, 
the Pueblo was allotted additional lands to the north and south. See my 
1996 Report, pp. 6-7.
    \10\ National Archives and Records Administration (hereafter cited 
as NARA), College Park, MD, Record Group (hereafter cited as RG) 49, 
New Mexico Private Land Claims (hereafter cited as NMPLC), Plat Book 1, 
no. 25; Plat Book 2, nos. 10, 21; Plat Book 3, no. 28; Plat Book 4, no. 
10; Plat Book 6, no. 27; Plat Book 5, nos. 34, 35; Plat Book 6, nos. 3, 
4, 11, 12, 14.
---------------------------------------------------------------------------
    In the late nineteenth century U.S. authorities recognized that 
certain of the land grants originally issued to Spanish settlers 
featured boundaries that represented the summit of mountains and of 
other promontories. In many, of not most, instances the language of the 
granting documents contained specific references to the identification 
of these boundaries as points higher in altitude than the surrounding 
terrain, such as ``ridges,'' ``brows,'' and ``summits,'' as opposed to 
more general features, such as ``mountains,'' or ``bills.'' The 1815 
grant to the settlers of Arroyo Hondo, near Taos, for example, 
identified the eastern boundary as ``la cuchilla del cerro,'' later 
translated by the U.S. officials as ``the ridge of the mountain,'' and 
further elaborated on as the ``top of the divide where the waters run 
on the other side.'' \11\ In 1808 the governor of New Mexico issued a 
grant to Spanish colonists at the Canon de Chama, on the upper reaches 
of the Chama River. The western boundary was described as ``la sejita 
blanca,'' or ``the little white brow.'' Testimony in the 1870s taken by 
officials of the U.S. Office of Surveyor General described this brow as 
the ``bordo [divide] of the rivers San Juan and Chama.\12\ The 1742 
grant near Taos that ended up in the hands of Antoine Leroux included 
as its eastern boundary, ``por la parte de la sierra, asta la cumbre,'' 
or, ``on the part of the mountains, to the summit.'' The Commissioner 
of the U.S. General Land Office, in a letter to the Surveyor General of 
New Mexico in 1880, in establishing the eastern boundary of the grant, 
indicated that ``the tract was to extend East `towards the mountain 
(sierra) to its summit,' thus giving a fixed and definite boundary on 
the east.'' \13\ The Juan de Gabaldon grant, issued in 1752, used the 
term, ``cuchilla,'' to refer to both its northern and southern 
boundaries. Over a century later, the U.S. officials translated this 
term as ``ridge,'' which constituted the watershed between two 
valleys.\14\ The 1795 grant of Rancho del Rio Grande included as its 
southern boundary, ``la cuchilla de la sierra del [de la] osa,'' and as 
its northern boundary, ``la cuchilla de la sierra del Rio de D[o]n 
Fernando.'' These features were later translated by U.S. officials as, 
``the ridge of Bear Mountain,'' and ``the ridge of the mountain of the 
river of Don Fernando,'' respectively. A witness in 1878 explained that 
each ridge served as the watershed between two rivers. Official 
instructions issued to the surveyor who was assigned to this grant 
cited both the southern and northern boundaries as ``ridges.'' \15\
---------------------------------------------------------------------------
    \11\ NMRCA, Records of the Office of Surveyor General (hereafter 
cited as SG), Report 159, Reel 29, fr. 204, act of possession, April 
10, 1815; fr. 321, instructions to surveyor, fr. 373, testimony, April 
7, 1896.
    \12\ NMRCA, SG, Report 71, Canon de Chama, Reel 20, fr. 579, act of 
possession, March 1, 1808; fr. 626, testimony of Ricardo Martinez, May 
13, 1878.
    \13\ NMRCA, SG Report 47, Antoine Leroux, Reel 17, fr. 1013, grant 
document, August 9, 1742; fr. 1050, letter of Commissioner of General 
Land Office to Surveyor General of New Mexico, June 4, 1880.
    \14\ NMRCA, SG Report 65, Juan de Gabaldon, Reel 19, fr. 1280-1281, 
act of possession, June 13, 1752; fr. 1325-1326, notice of survey of 
grant, March 12, 1896; fr. 1334-1370, survey notes, April 9, 1901.
    \15\ NMRCA, SG, Report 58, Rancho del Rio Grande, Reel 19, fr. 57, 
act of possession, April 9, 1795; fr. 69-70, translation of act of 
possession; fr. 124, deposition of Juan B. Coca, September 9, 1878; fr. 
136-137, instructions to surveyor, August 15, 1894.
---------------------------------------------------------------------------
    In each of these cases, where the language of the original Spanish 
land grant made specific reference to a ridge or summit of a mountain 
or other promontory, the U.S. authorities recognized the boundaries as 
including the main ridges of these features. The attached plats show 
clearly how the government surveyors took these specific features from 
the land grant documents, and applied them on the ground to encompass 
the main ridges within the grants.\16\
---------------------------------------------------------------------------
    \16\ NARA, College Park, MD, RG 49, NMPLC, Plat Book 1, no. 25; 
Plat Book 2, nos. 10, 21; Plat Book 3, no. 28; Plat Book 4, no. 10; 
Plat Book 6 no. 27.
---------------------------------------------------------------------------
    Question 2. You claim the original Spanish grant to Sandia was for 
a ``formal'' pueblo of four square leagues. Some argue that the four 
square leagues of about 17,000 acres is a minimum and others, such as 
yourself, have argued that it is a norm. The Sandia had about 24,000 
acres patented to it in 1864. If you add another 10,000 acres of the 
claim based on a reinterpretation of the grant, Sandia's holdings would 
be about 34,000 acres--about double that of a ``regular'' pueblo.
    Why do you believe the Spanish governor intended for Sandia to have 
a ``regular'' pueblo, and how do you account for the fact that there 
are other Pueblos with land areas in excess of 17,000 acres?
    Answer. As stated in my 1996 Report, in Governor Codallos y Rabal's 
Decree granting lands to the Pueblo of Sandia, he clearly expressed his 
intention that the new entity be considered as a pueblo formal de 
indios, or a formal Indian pueblo,\17\ with boundaries similar to those 
allotted to other pueblos in New Mexico decades earlier. Accordingly, 
he issued instructions to his Lieutenant General, Bernardo Antonio de 
Bustamante Tagle, to give royal possession of lands to the new 
arrivals:
---------------------------------------------------------------------------
    \17\ Each of the pueblos in New Mexico were granted by the Spanish 
crown a tract of land measuring four square leagues, or one league (2.6 
miles) extending to each of the cardinal directions from the center of 
the pueblo.

          . . . I give commission as full and sufficient as is 
        necessary in such cases to Lieutenant General Don Bernardo de 
        Bustamante, so that with ten soldiers from this Royal Presidio, 
        and with the intervention of the said Very Reverend Father 
        Delegate Commisary, that he pass to the place of Sandia, and 
        there conduct an inspection, calculation and reconnaissance of 
        the said site, executing a distribution of the lands, waters, 
        pasture and watering places that correspond to a formal Indian 
        pueblo, according to the prescription of the Royal law . . 
        .\18\.
---------------------------------------------------------------------------
    \18\ NMRCA, SANM I, No. 848, Decree of Governor Codallos y Rabal, 
``. . . Doy comision quan amplia y bastante se necesita en tales casos 
al theniente Gral. Don Bernardo de Bustamante, para que con diez 
soldados de este Real Presidio, y con ynterbencion el dho. M.R.P. 
Comisario Delegdo. pase al puesto de Sandia, y alli se haga vista el 
ojos, tauteos, y reconosimiento del silo referido, ejecutando el 
repartimiento de tierras, aguas, pastos, y abrebaderos que corresponden 
a un Pueblo formal de Yndios segun preescriben las Reales disposiziones 
. . .''.

    On May 16, Bustamante carried out his assignment. Accompanied by 
the settlers of the pueblo and their priest, Bustamante led them in the 
formal Act of Possession, by which all assembled threw stones, tore up 
grass, ``and in a loud voice shouted `Long Live the King, Our Lord,' 
many times.'' He then proceeded to measure out the boundaries of the 
pueblo.
    Reflecting a clear recognition of the standard measurement of four 
square leagues allocated to each pueblo in New Mexico, Bustamante 
stated that ``the conceded leagues were measured for the formal 
pueblo,\19\'' indicating that, 5,000 varas were to be surveyed in each 
direction from the center of the settlement. He began to mark off the 
5,000 varas that would have comprised the league measurement extending 
to the west, but after only 1,440 varas his path was impeded by the Rio 
Grande. In order to compensate the pueblo for the shortfall of 3,560 
varas, Bustamante decided to add lands to both the north and south 
boundary equally, so as not to cause prejudice to either one of the 
neighboring Spanish settlements of Bernalillo and Alameda.\20\
---------------------------------------------------------------------------
    \19\ NMRCA, SANM I, No. 848, Act of Possession, May 16, 1748, ``Se 
midieron las Leguas consedidas a un pueblo formal.''
    \20\ NMRCA, SANM I, No. 848, Act of Possession, May 16, 1748.
---------------------------------------------------------------------------
    Thus, on the basis of Bustamante's description, the boundaries of 
Sandia Pueblo extended 1,440 varas (75 miles) to the west; 6,780 varas 
(3.53 mules) to the north; 6,780 varas (3.53 miles) to the south; and 
5,000 varas (2.6 miles) to the east.\21\ The Lieutenant General ordered 
in the Act of Possession that boundary markers be placed ``on the north 
facing the point of the Canada commonly known as del Agua; and on the 
south facing the mouth of the Canada de Juan Tabovo, and on the east 
the Sierra Madre called Sandia, within whose limits are the advantages 
of pasture, woods, waters and watering places for livestock, in 
abundance to maintain cattle, sheep and horses . . .'' \22\
---------------------------------------------------------------------------
    \21\ Calculations based on the length of a vara equaling 33 inches, 
and a league measuring 2.6 miles.
    \22\ NMRCA, SANM I, No. 848, Act of Possession, ``por el Norte 
afrontada con la Punta de la Canada que conununmente Haman del Agua; y 
por el Sur afrontada a la voca de la Canada de Juan Tabovo, y por el 
Oriente la Zierra Madre llamada de Sandia en cellos tenninos ay las 
comodidades de Pastos, Montes, Aguas, y Abrebaderos en abundancia para 
mantener Ganados mayores, y menores,y Caballada . . .''
---------------------------------------------------------------------------
    Subsequent documentation from the eighteenth and early nineteenth 
centuries reinforces the notion that the lands owned by the Pueblo of 
Sandia were confined to a four-square-league area, as measured by 
Lieutenant General Bustamante in May of 1748.
    After the assumption of sovereignty by the United States, thirteen 
of nineteen Pueblo land grants (Sandia Pueblo excluded) were confirmed 
by the U.S. government, recognizing an extent of four square leagues, 
which was the amount of land granted to each Pueblo by the king of 
Spain, through his governor in New Mexico. During the investigations 
conducted by the U.S. Surveyor General, several of the Pueblos, when 
questioned as to the extent of their Spanish grants, confirmed this 
historical fact. The leaders of the Pueblo of Santa Clara, when asked 
about the four-square-league area, responded that, ``The grants made to 
all the Pueblos called for the same amount of land, and contain the 
same amount that the other Pueblos contain''.\23\ The heads of the 
Pueblo of San Ildefonso reported that their grant ``called for one 
league from the church towards the four cardinal points. We claim the 
same amount of land as the other pueblos have''.\24\ Those of the 
Pueblo of Pojoaque responded in a similar manner, ``We claim one league 
from the corner of the church toward the four cardinal points and are 
entitled to the same amount of land granted to the other Pueblos.'' 
\25\
---------------------------------------------------------------------------
    \23\ NMRCA, SG, Report K.
    \24\ NMRCA, SG, Report M.
    \25\ NMRCA, SG, Report N.
---------------------------------------------------------------------------
    Of the six remaining grants, where the U.S. government patented a 
considerably larger amount of land, five presented fraudulent 
documents, purporting to have been issued in 1689, but in reality were 
manufactured in the 1850s, containing descriptions far in excess of 
their original grant from the king of Spain (Acoma, San Felipe, 
Cochiti, Santo Domingo, Laguna). One Pueblo, Isleta, when questioned by 
the U.S. Surveyor General, greatly exaggerated the extent of its land 
grant, claiming boundaries far beyond its four-square-league grant to 
the east and west.
    Extensive research conducted in Spanish colonial records shows that 
the standard measure of land grants to Indian pueblos in New Mexico was 
four-square leagues. Some received additional grants, while others were 
able to purchase lands from Spanish settlers. Each of these grants and 
transactions were documented by Spanish authorities. Additionally, in 
the late nineteenth and mid-twentieth centuries, the U.S. government 
set aside lands for certain of the Pueblos as reservations. Absent 
these special circumstances, however, each Pueblo comprised four-square 
leagues, and no more (sometimes less).\26\
---------------------------------------------------------------------------
    \26\ Historian Myra Ellen Jenkins, upon whom Interior Solicitor 
Lashy relied heavily for his 2001 Opinion, repeatedly asserted that the 
four-square-league area represented only a minimum, and that the 
Spanish colonial officials recognized a much greater extent of Pueblo 
holdings. This assertion was not supported by any primary 
documentation, and when asked in deposition to provide archival 
references to substantiate this theory, Jenkins conceded that site 
could not do so (See State of New Mexico, ex rel., S E. Reynolds, State 
Engineer. et al. v. Eduardo Abeyta, et al., CV No. 7896 C & No. 7939 C 
(cons.) (Rio Pueblo de Taos & Rio Hondo), Deposition of Myra Ellen 
Jenkins, April 4 and 19, 1990, pp. 72-75).
---------------------------------------------------------------------------
    Question 3. How do you respond to the allegations that you're a 
minority among scholars in your historical conclusions and that other 
reputable scholars disagree with you?
    Answer. To the contrary, I submit that other reputable scholars who 
have studied this issue have developed conclusions consistent with my 
own. I would refer you to the reports of William Morgan, `` `And on the 
East . . .' The Sandia Eastern Boundary Issue and the Land Policies of 
Three Nations'' (1988), and of Dr. Frank Wozniak, ``An Analysis of the 
Location of the Eastern Boundary of the Sandia Pueblo Grant'' (1988), 
as well as the research of Dr. Michael Meyer, of the University of 
Arizona, all of whom came independently to the same conclusion, i.e, 
that there is no documentation that would justify the historic claim 
placing the eastern boundary at the crest of the Sandia Mountains.
    Moreover, one of the Pueblo's own experts, Dr. Ward Alan Minge, 
produced a report, ``The Pueblo of Sandia Grant Boundary: Issues and 
Encroachments'' (ca. 1983), which, while replete with internal 
contradictions, corroborated two of my key points: (1) the term sierra 
madre should be translated as ``mountain range,'' rather than ``main 
ridge,'' and (2) the King of Spain recognized that the Pueblo of 
Sandia, like all the other Pueblos, owned an area of land comprising 
four square leagues.
    With regard to the translation of sierra madre, Minge made no 
reference a ``main ridge.'' Rather, he believed that the term referred 
to the mountain range in its totality, stating, ``The Sierra Madre de 
Sandia was the name given to the entire mountain east of Sandia Pueblo, 
and `we shall call it a Sierra Madre, since it spreads down for a long 
way. with the characteristics of a mother range,' '' \27\ and, ``As to 
the eastern boundary, I have used the original `Sierra Madre called 
Sandia' which could only translate into the mountain itself.'' \28\ If 
Minge intended for the term to be translated as ``main ridge,'' he 
certainly would have so indicated here. Minge included as part of his 
report an appendix called, ``Definitions and Illustrations in 
Dictionaries and Contemporary Documents Showing `Sierra Madre' to Mean 
Mountain Range or Main or Mother Range,'' in which he cited the 
definitions of the term developed by fifteen English and Spanish 
authorities. None of them refer to sierra madre as ``main ridge,'' or 
any Spanish equivalent.\29\
---------------------------------------------------------------------------
    \27\ Ward Alan Minge, ``The Pueblo of Sandia Grant Boundary: Issues 
and Encroachments'' (1983?), p. 19, referring to the 1776 observations 
of Fray Francisco Athanasio Doininguez, discussed above.
    \28\ Minge, ``The Pueblo of Sandia Grant Boundary,'' pp. 15-16.
    \29\ Minge, ``The Pueblo of Sandia Grant Boundary, Appendix F, pp. 
175-177.
---------------------------------------------------------------------------
    Minge also expressed the belief that ``The league, a grant of four 
leagues square, gradually became the accepted size for Indian Pueblos 
of New Mexico,'' and that ``Spanish officials and settlers appeared to 
recognize the Pueblo `leagues' and had surveys made after controversies 
arose. . . .'' \30\ With specific reference to the Pueblo of Sandia, 
Minge indicated that the four-square-league area represented all the 
land to which they were entitled. Commenting on the 1859 survey 
conducted by the Surveyor General he stated, ``In place of a block of 
land, more or less based on the Spanish leagues, Sandia's survey . . . 
ended with wiggles, jags and other distortions.'' [emphasis added] \31\
---------------------------------------------------------------------------
    \30\ Minge, ``The Pueblo of Sandia Grant Boundary,'' pp. 28-29.
    \31\ Minge, ``The Pueblo of Sandia Grant Boundary,'' p. 37, 
Inexplicably, Minge proceeded to conclude that the Sandia mountain 
comprised part of the grant to the Pueblo, despite his reference to 
this four-square-league block of land.
---------------------------------------------------------------------------
    With the exception of one or two affidavits on particular issues, I 
am not aware of the existence of any documented expert historical 
report countering the conclusions that I reached in my 1996 Report. 
Interior Solicitor Leshy, in his 2001 Opinion, relied on the work of 
only one scholarly report, prepared in 1983 by Dr. Myra Ellen Jenkins, 
most of whose conclusions could not be substantiated by primary 
documentation. The only other relevant citations referenced by the 
Solicitor comprised an unfootnoted op-ed piece in an Albuquerque 
newspaper by Malcolm Ebright, and one statement taken out of context by 
William Morgan.
    Question 4. A major point made by proponents of the Sandia claim is 
that the Spanish grant area to the south, known as the Elena Gallegos 
Grant, which does go to the crest of the Sandia Mountains, is precedent 
for the same conclusion being made for the Sandia Grant. Are the Sandia 
and Elena Gallegos Grants comparable?
    Answer. As discussed in my 1996 Report, the treatment of the 
eastern boundary of the Elena Gallegos Grant has been cited by some as 
relevant to the placement of the eastern boundary of the Pueblo of 
Sandia. However, such a comparison is misplaced, despite the 
geographical proximity of the two grants. The Sandia Grant and the 
Elena Gallegos Grant differ in two fundamental respects. First, the 
language of the grants are significantly different with respect to the 
specificity of the boundary calls. Second, the nature of the pueblo 
grant was distinct from grants to non-Indians. Sandia represented a 
formal pueblo grant, which adhered to the limitation of a four-square-
league area, as opposed to Elena Gallegos, which had no such express 
limitation.
    The importance of the differences in language between the two 
grants becomes apparent in an examination of a critical court case 
involving the interpretation of the boundaries of the Elena Gallegos 
Grant in the late nineteenth century. In the 1890s the question of the 
translation of the Sierra arose in relation to the eastern boundary of 
the Elena Gallegos Grant, located just to the south of the Pueblo of 
Sandia. In a case before the U.S. Court of Private Land Claims, the 
descendants of the original grantees claimed as the eastern limit of 
their holdings the summit of the Sandia Mountains, based on the wording 
of their 1716 grant document, which specified the boundary as the 
Sierra de Sandia. After hearing the evidence presented by both the 
descendants and the U.S. Attorney, who asserted that the Sierra 
referred to the foothills, and not the crest, Associate Justice Wilbur 
F. Stone issued his opinion in favor of the former, ruling that the 
eastern boundary of the grant should extend to the crest.\32\
---------------------------------------------------------------------------
    \32\ NMRCA, Court of Private Land Claims (hereafter cited as CPLC), 
No. 51, Elena Gallegos Grant, Reel 38, fr. 832-833, Opinion of 
Associate Justice Wilbur Stone, Newspaper article from The Daily New 
Mexican, December 6, 1893, signed by Justice Stone, and filed by Clerk 
of Court (hereafter cited as Opinion).
---------------------------------------------------------------------------
    In view of the foregoing discussion with regard to the translation 
of sierra madre, Justice Stone's opinion is a curious one, and warrants 
detailed examination as it relates to the case of the Pueblo of Sandia. 
In certain respects, the decision with regard to the extent of land 
granted to the residents of the Elena Gallegos Grant related uniquely 
to the tract in question, and did not apply to the case of Sandia.
    With regard to this question, Justice Stone's opinion raised some 
interesting concerns. One such issue surrounds the differences in the 
designation of the eastern boundary for each grant. The text of Justice 
Stone's opinion pointed out the contrast between the terms, sierra 
madre and sierra:

          As applied to mountains its [sierra's] figurative, general 
        meaning is a range; as `La Sierra Madre,' `La Sierra Nevada,' 
        the mother range and the Snowy range of the Rocky mountains. In 
        a special application of the term to a single mountain, or 
        mountains not properly constituting a range, the word sierra 
        especially refers to and denotes the serrated crest, comb, 
        ridge or summit. The term may be applied, in common parlance, 
        to entire mountains, smoothly rounded, as to those with rugged 
        ridges, but when employed in relation to a boundary point or 
        line, there can be no room for doubt that the `cumbres,' apex 
        or summit is intended as the true and precise definition of the 
        land-mark [emphasis added].\33\
---------------------------------------------------------------------------
    \33\ NMRCA, CPLC, No. 51, Elena Gallegos Grant, Opinion.

    Justice Stone thus drew the distinction between sierra madre, or 
mother range, referring in general terms to the mountains, on the one 
hand, and sierra, or serrated crest, on the other. Whether one concurs 
with this difference or not, it is clear that Justice Stone based his 
decision to place the eastern boundary of the Elena Gallegos Grant at 
the crest, on the basis of the existence of the term, sierra, and not 
sierra madre, in the granting document. In the case of the 1748 grant 
to the Pueblo of Sandia, the wording of the reference point to the east 
was the Sierra Madre de Sandia, and thus would not have been defined by 
the judge as the crest of the mountain.
    Another area where Justice Stone's opinion in the Elena Gallegos 
Grant did not apply to the case of the Pueblo of Sandia surrounds the 
element of uncertainly of boundary markers:

          An authoritative rule of construction is that, where a deed 
        is uncertain or ambiguous in description, the construction 
        given to it by the parties themselves, is to be deemed the true 
        one, unless the contrary is clearly established . . .\34\.
---------------------------------------------------------------------------
    \34\ NMRCA, CPLC, No. 51, Elena Gallegos Grant, Opinion.

    If the eastern boundary of the Elena Gallegos Grant was uncertain, 
then there was no doubt concerning the placement of that of the Pueblo 
of Sandia. As discussed at length in my response to Question 2, the May 
16, 1748 Act of Possession conducted by Lieutenant General Bustamante 
specified the measurement of one league toward the east, and designated 
the northeast and southeast corners as ``facing the point of the Canada 
commonly known as del Agua,'' and ``facing the mouth of the Canada de 
Juan Tabovo,'' respectively. In the context of these specific 
descriptions, Justice Stone's criteria of uncertainty and ambiguity 
would not have been met.
    Moreover, the very nature of the Sandia grant as a ``formal 
pueblo'' renders any comparison with the Elena Gallegos boundary 
decision irrelevant. By their very nature, grants to the pueblos were 
limited to an area of four square leagues. Although the boundaries of 
the Pueblo of Sandia were slightly altered to the west, north and 
south, no changes were made to the eastern boundary. Thus, where 
Justice Stone might have expressed uncertainty over the limits of a 
non-Indian grant, there could have been no question as to the boundary 
of a ``formal pueblo.''
    Thus, despite the decision of the Court of Private Land Claims to 
interpret the eastern boundary of the Elena Gallegos Land Grant as the 
crest of the Sandia Mountains, no such extension can be made to the 
eastern limit of the Pueblo of Sandia. The two grants are not 
comparable.
                              Appendix II

                Additional Material Submitted for Record

                              ----------                              

            Sandoval County Administrative Offices,
                             Board of County Commissioners,
                                    Bernalillo, NM, April 22, 2002.
Hon. Jeff Bingaman,
U.S. Senate, Hart Senate Office Building, Washington, DC.
    Dear Senator Bingaman: At its regular meeting on Thursday, April 
18, 2002, the Sandoval County Commission voted unanimously to support 
the legislation you are sponsoring to settle the Sandia Mountain land 
claim. The Commission did, in fact, support the original Settlement 
agreement and believed that it fairly addressed all pertinent issues.
    It is our understanding that the Pueblo of Sandia supports the 
legislation if it is amended to allow for the exchange of claim area 
lands, already purchased by the Pueblo, for the claim area Forest 
Service lands within Sandoval County. Said land would be assigned trust 
status. Despite a loss in Payment-in-Lieu of Taxes (PILT) revenue, 
Sandoval County supports placing this property into trust, as long as 
public access, existing uses, and easements are ensured in perpetuity. 
While the County supports the Settlement, regardless of PILT losses, we 
would like to take this opportunity to reiterate our request that the 
PILT legislation be amended to require that all lands taken into trust 
through purchase, thereby removing that land from the tax rolls, 
continue to be included in the formula for PILT calculations.
    Unfortunately, there has been a great deal of misinformation 
perpetuated about this land claim settlement; however, when the facts 
are analyzed and presented accurately, support for the settlement is 
overwhelming. There is seldom an opportunity to settle a dispute of 
this magnitude so that no one loses--but that is the case with the 
proposed settlement. The Sandias have demonstrated that they have two 
basic goals: unrestricted access to land, which is rightfully theirs, 
and maintaining the wilderness state of the property in perpetuity. As 
long as these two goals are assured, the public's current use of the 
property will not be restricted, homeowners in the affected area will 
have their titles cleared, certain roadways will have their easements 
formally dedicated and, most important to the big picture, the east 
face of the mountain will never be traded or taken out of wilderness 
status. The settling of this issue is long overdue and has already cost 
far too much in litigation costs on both sides of the argument. Please 
do not spend more time and money when an equitable solution is 
available.
            Sincerely,
                                      Elizabeth C. Johnson,
                                                             Chair.
                                 ______
                                 
                               State of New Mexico,
                                  House of Reoresentatives,
                              Sante Fe, NM, April 22, 2002.
Hon. Jeff Bingaman,
U.S. Senator, Hart Senate Office Building, Washington, DC.
    Dear Senator Bingaman: I write this letter to express my support 
for the Sandia Mountain Settlement Agreement. I strongly believe the 
natural beauty of Sandia Mountain most be preserved for today's 
enjoyment, and for future generations. Access to the unspoiled mountain 
offers a great deal to the people of New Mexico, not just for its 
recreation use and aesthetic beauty, but also as an historical and 
cultural link to this area's past. Especially for the people of Sandia 
Pueblo, the Sandia Mountain remains a sacred place for their religious 
and cultural practices.
    The Agreement resolves the Pueblo's claim, protects their religious 
and traditional use rights, ensures the Mountain's future protection, 
and guarantees continued public access. It also resolves a host of 
issues that further litigation could never resolve. I understand that 
the primary element of concern to the State of New Mexico relates to 
the regulation of hunting within the Claim Area. However, I have been 
told that the Pueblo and the State Department of Game & Fish are 
working cooperatively to reach a mutually acceptable compromise on that 
issue. Further, I will continue to encourage them to resolve this issue 
and reach an agreement that would benefit the best interests of all 
concerned.
    I believe the Settlement Agreement provides the most balanced and 
reasonable solution for everyone. I humbly request that you support 
legislative ratification of the Settlement Agreement. Thank you for 
your time and consideration.
            Sincerely,
                                                 Ben Lujan,
                                              Speaker of the House.
                                      Albuquerque, NM, May 8, 2002.

To: United States Senate Committee on Energy and Natural Resources

From: Jim Clark. Evergreen Hills Landowner

In Reference To: SB 2018

    I am the current owner of 18 lots in the Evergreen Hills 
subdivision and I am deeply distressed that the subject bill as it is 
currently written does not address my property rights and rights 
established as a result of the Evergreen Hills subdivision being a 
homestead most probably prior to the establishment of the USFS in the 
area surrounding the private property. The subdivision is currently an 
inholding and should at a minimum have rights and protection spelled 
out in the bill identical to those provided to Tierra Monte and Sandia 
Heights North. Tierra Monte is an inholding virtually identical to 
Evergreen, with the exception of being in a different county and less 
than a mile or so from Evergreen Hills. Additionally, as a subdivision, 
filed in accordance with the laws of the State of New Mexico, our 
rights to power and all utilities and other subdivision rights have not 
been adequately addressed. This is despite repeated requests to be 
involved in the process and having filed and been granted status as an 
intervenor during the lawsuit. I am greatly dismayed that I have not 
been allowed to testify nor have I been notified or contacted of the 
process or dates that testimony was to be given. I learned of todays 
deadline through discussions with another interested party at 
approximately 4:30 PM MST. Why have Evergreen Hills and I been singled 
out and ignored?
    I have not been given fair and equal access to the historic 
mediation and settlement process in spite of my being an intervenor in 
the original lawsuit and repeated letters and requests to the New 
Mexico delegation and the USES.
    Accordingly, I request the bill address the following specific 
elements:

   I request that power and other utilities be provided to the 
        Evergreen Hills subdivision boundary and that our subdivision 
        not be singled out or solely excluded from receiving power and 
        utilities. This is consistent with access through a special use 
        permit and I have previously requested an extension to the 
        expired permit that was granted from the USFS.
   I personally own the utility lot in Evergreen Hills and have 
        requested through a letter that a permit for power be 
        permanently established to allow future use of the lot in 
        providing power to adjacent subdivisions. The bill as it is 
        currently written does not have a provision that will allow 
        this.
   Access to the subdivision should be through a dedicated 
        easement to the subdivision boundary and the gate currently at 
        the Piedra Lisa parking area should be moved to the subdivision 
        boundary. The private road permit as written by the USFS places 
        excessive liability onto private landowners in Evergreen Hills.
   Evergreen landowners are given no alternatives to accepting 
        the proposed one-sided legislation. Such alternatives as a 
        partial compensation, trade, buyout; etc., should be offered 
        and considered.
   The language of the legislation is internally contradictory 
        and damaging to the Evergreen Hills in that the Government is 
        granting Pueblo rights to reject uses of USFS land, which 
        surround the Evergreen subdivision. The veto rights are adverse 
        to the subdivision and my personal past and future interests. 
        The language is tantamount to improper condemnation or a taking 
        of property without due process.
   The bill needs to protect the Landowner rights of Evergreen 
        Hills equally and equitably to those of Tierra Monte and Sandia 
        Heights North as the easements that will be established for 
        both of these subdivisions are the same easements and rights of 
        way that will apply to Evergreen Hills.
   USFS transfer of property from the Evergreen Hills 
        subdivision into Pueblo ownership is prejudicial and adverse to 
        subdivision interests and covenants. I also have a deed that 
        contradicts USFS ownership of one of two lots under section 
        8.f(2) in the subdivision.

    I respectfully request that the above issues be addressed and that 
S. 2018 be amended to address the Evergreen Hills subdivision 
adequately.
            Very respectfully,
                                                    James L. Clark.

                               

      
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