    [Senate Hearing 107-777]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-777

                   THE FIVE NATIONS CITIZENS LAND REFORM ACT

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

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 2880

        TO AMEND LAWS RELATING TO THE LANDS OF THE ENROLLEES AND LINEAL
     DESCENDANTS OF ENROLLEES WHOSE NAMES APPEAR ON THE FINAL INDIAN ROLLS
      OF THE MUSCOGEE (CREEK), SEMINOLE, CHEROKEE, CHICKASAW, AND CHOCTAW
        NATIONS (HISTORICALLY REFERRED TO AS THE FIVE CIVILIZED TRIBES)

                                   __________

                               SEPTEMBER 18, 2002
                                 WASHINGTON, DC

    83-005              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
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                          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

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    H.R. 2880, text of...............................................     3
    Statements:
        Beaver, R. Perry, principal chief, Muscogee (Creek) Nation,
          Okmulgee, OK...............................................    59
        Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
          vice chairman, Committee on Indian Affairs.................     1
        Deason, Charles, council member, United Keetoowah Band,
          Tahlequah, OK..............................................    70
        Gouge, Wilbur, speaker, Muscogee Creek National Council......    59
        Inhofe, James M., U.S. Senator from Oklahoma.................    63
        Inouye, Daniel K., U.S. Senator from Hawaii, chairman,
          Committee on Infdian Affairs...............................     1
        Ketchum, Dee, chief, Delaware Tribe of Indians, Bartlesville,
          OK.........................................................    68
        Martin, Aurene, deputy assistant secretary, Indian Affairs,
          Department of the Interior.................................    54
        Proctor, Dallas, chief, United Keetoowah Band, Tahlequah, OK.    70
        Pyle, Greg, principal chief, Choctaw Nation of Oklahoma,
          Durant, OK.................................................    64
        Robertson, Lindsay G., special counsel, Indian Affairs to
          Governor Frank Keating, University of Oklahoma College of
          Law, Norman, OK............................................    56
        Smith, Chad, chief, Cherokee Nation, Tahlequah, OK...........    58

                                    Appendix

    Prepared statements:
        Anoatubby, Bill, Governor, Chickasaw Nation..................    77
        Beaver, R. Perry.............................................    79
        Gouge, Wilbur................................................    84
        Ketchum, Dee.................................................    89
        Martin, Aurene...............................................    92
        Proctor, Dallas (with attachments)...........................    95
        Pyle, Greg...................................................    75
        Robertson, Lindsay G.........................................   110
        Smith, Chad..................................................   111

                     FIVE NATIONS CITIZENS LAND REFORM ACT

                                  ----------

                         WEDNESDAY, SEPTEMBER 18, 2002

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m. in room
    485, Senate Russell Building, the Hon. Daniel K. Inouye
    (chairman of the committee presiding).
        Present: Senators Inouye, Campbell, and Inhofe.

     STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. The Committee on Indian Affairs meets this
    morning to receive testimony on H.R. 2880, the Five Nations
    Citizens Indian Land Reform Act. Before I call upon the
    respective leaders of Oklahoma Indian country, may I call upon
    the vice chairman of the committee, Senator Campbell.

     STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
          COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Campbell. Thank you, Mr. Chairman, thank you for
    holding this important hearing, I assume that Senator Inhofe
    and Congressman Watkins will be along as they can.
        The so-called Five Civilized Tribes were forcefully removed
    from the southeastern portion of the United States against
    their wishes and large tracts of land were set aside in an area
    then known as Indian territory, today known as the State of
    Oklahoma.
        Like other Indian reservations, the Five Tribes'
    reservations were subjected to the allotment policy of the late
    1880's. However, Congress went even further when it allotted
    these Indian reservations by giving State courts jurisdiction
    over the lands. One Federal court referred to this system as
    ``fatally flawed'' and most people who have looked at this
    situation agreed with the judge's criticism.
        Through H.R. 2880, the Five Nations Indian Land Reform Act
    that Congress has the opportunity to correct a number of past
    errors and afford Indian lands in eastern Oklahoma the same
    protection afforded to other Indian lands and I want to lend my
    support to it.
        In addition to the committee staff, I'd like to commend the
    efforts of the Oklahoma tribes, the entire Oklahoma
    Congressional delegation, but especially to Congressman Watkins
    and Senator Inhofe. I understand through staff that this is one
    of the best-developed bills we've had come before the committee
    in the last 3 or 4 years. So I look forward to hearing from our
    witnesses.
        Thank you, Mr. Chairman.
        [Text of H.R. 2880 follows:]

        The Chairman. Thank you very much. Our first witness is the
    Deputy Assistant Secretary for Indian Affairs of the Department
    of the Interior, Aurene Martin.
        Ms. Martin.

      STATEMENT OF AURENE MARTIN, DEPUTY ASSISTANT SECRETARY FOR
               INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

        Ms. Martin. Good morning Mr. Chairman, Mr. Vice Chairman.
    My name is Aurene Martin, and I am the Deputy Assistant
    Secretary of Indian Affairs at the Department of the Interior.
    I'd like to thank you for the opportunity to provide testimony
    today on H.R. 2880.
        H.R. 2880 amends laws relating to the Muscogee Creek,
    Seminole, Cherokee, Chickasaw, and Choctaw Nations,
    historically known as the Five Civilized Tribes. The
    administration supports this legislation.
        H.R. 2880 seeks to rectify certain problems involving
    restrictive property, which results in unequal treatment of the
    lands compared to other Indian lands held in restrictive status
    elsewhere. Because of the unique historical situation that
    exists in Oklahoma, the Five Nations escaped the forced
    allotment of their lands authorized by the General Allotment
    Act.
        However, since the Federal Government did not hold title to
    the lands, it did not have the legal authority to issue fee
    patents to Five Nation members, and instead, a complex system
    of Federal allotment laws developed, which currently governs
    and only applies to the Five Nations.
        As a result of these laws, members and lineal descendants
    of the Five Nations have been subject to Oklahoma State court
    jurisdiction for administrative approval of a number of
    transactions involving restrictive Indian lands held by
    individual Indians who possess one-half or more degree Indian
    blood quantum.
        In these matters, Oklahoma State courts may act on behalf
    of the Secretary of the Interior. This unique jurisdictional
    scheme is costly, cumbersome and confusing, and prevents
    meaningful estate planning for these individual Indian members.
        By contrast, the same matters involving other Indian
    restricted lands are managed by the Department of the Interior,
    and no State court jurisdiction applies. Over the past several
    years, the Department has worked with the Five Nations to
    develop legislation which would end the disparity between the
    treatment of these lands and other similarly restricted Indian
    lands of other tribes.
        H.R. 2880 would treat the Five Nation owners of these
    restricted lands in the same manner as other Indians who are
    owners of restricted lands. H.R. 2880 would also make several
    important changes to the Federal laws governing the restricted
    land held by individual Indians of the Five Nations. A number
    of the amendments it would make would include making all
    restricted properties subject to restrictions against
    alienation regardless of the blood degree of the Indian
    individual who owns the property. It would also allow an
    individual to use the proceeds from the conveyance of
    restricted property to purchase other property which may be
    held in restricted status.
        H.R. 2880 would also give the Secretary of the Interior the
    exclusive jurisdiction to handle administrative matters dealing
    with these lands, including the ability to approve conveyances
    and leases, and the ability to probate wills or determine
    errors and adjudicate estate actions involving restricted
    properties. It also authorizes the Secretary to administer
    certain oil and gas leases.
        I would like to reiterate our support for this bill which
    we believe is both consistent with the self-determination
    policy and self-sufficiency for tribes and tribal members. I
    would ask that my written testimony be entered into the written
    record. This concludes my testimony. I would be happy to answer
    any questions.
        [Prepared statement of Ms. Martin appears in appendix.]
        The Chairman. Thank you very much and your full statement
    will be made part of the record. If I may, in reading the
    testimony of the United Keetoowah Band, they argue that the
    historic Cherokee Nation as it existed prior to 1906 now
    consists of two tribes. The United Keetoowah Band and the
    Cherokee Nation of Oklahoma. As a result, this band is
    requesting that the bill be amended to clarify the definition
    of Five Nations, to include the United Keetoowah Band. Does the
    Department of the Interior view the United Keetoowah Band as
    descendants of the historic Cherokee Nation?
        Ms. Martin. My understanding is that members of the United
    Keetoowah Band and the Cherokee Nation descend from the same
    population. I am not clear on whether our analysis has gone so
    far as to say they were all members of the historic Cherokee
    Nation, nor am I aware that we've made a determination whether
    the United Keetoowah Band and the historic Cherokee Nation
    share rights descending from the historic Cherokee Nation.
        The Chairman. Does the Department recognize the United
    Keetoowah Band as a federally-recognized Indian tribe?
        Ms. Martin. Yes; we do.
        The Chairman. Does the Department believe that the United
    Keetoowah Band should be included within the definition of Five
    Nations?
        Ms. Martin. We're still completing our legal analysis as to
    whether the United Keetoowah Band is a descendant of the
    historic Cherokee Nation and would be included in Five Nations
    legislation. So I can't really answer that right now, but I
    would like to followup in writing with you if that's okay.
        The Chairman. Can you provide us with that response as soon
    as possible? We would like to report this measure out next week
    at the latest.
        Ms. Martin. Yes.
        The Chairman. Is it the Department's view that the bill
    allows restricted lands of the United Keetoowah Band members to
    escheat to the Cherokee Nation of Oklahoma?
        Ms. Martin. Again, I'm not sure what our analysis is on
    that particular issue and I would have to get back to you on
    that, as well.
        The Chairman. The Department is proposing an amendment to
    this bill. If the Senate were to pass H.R. 2880 in its current
    form, and follow that action with a bill to make technical
    necessary conforming amendments, would the Department object to
    proceeding so that H.R. 2880 could be sent back to the House
    and directly to the White House without conference?
        Ms. Martin. I believe that would be acceptable to the
    Department. That proposal has not been reviewed within the
    Department, but I don't think it would rise to the level of an
    objection if it were not made.
        The Chairman. All right, thank you very much, Madame
    Secretary.
        Mr. Vice Chairman.
        Senator Campbell. I understand that the provisions of the
    bill won't become effective until 2004. Is that correct?
        Ms. Martin. Yes; I believe so.
        Senator Campbell. And that's in order to give the
    Department some time for to implement it, and I also understand
    the sponsors of the bill are willing to discuss whether that's
    time enough for the Department or not. Would you keep our
    committee informed as to the progress of that--those
    discussions so we can make any necessary changes if we have to?
        Ms. Martin. Yes; I'd be happy to do that.
        Senator Campbell. Thank you, thank you Mr. Chairman.
        The Chairman. Thank you very much, Madame Secretary.
        Ms. Martin. Thank you.
        The Chairman. Our next witness is Lindsay G. Robertson,
    special counsel on Indian Affairs to the Governor of Oklahoma,
    Frank Keating. Mr. Robertson, welcome sir.

     STATEMENT OF LINDSAY G. ROBERTSON, SPECIAL COUNSEL ON INDIAN
       AFFAIRS TO GOVERNOR FRANK KEATING, UNIVERSITY OF OKLAHOMA
                       COLLEGE OF LAW, NORMAN, OK

        Mr. Robertson. Thank you, Mr. Chairman, Vice-Chairman
    Campbell and other members of the committee for the opportunity
    to testify on behalf of Governor Frank Keating in support of
    H.R. 2880, the Five Nations Indian Land Reform Act.
        The Five Nations--the Muscogee [Creek], Cherokee,
    Chickasaw, Choctaw, and Seminole Nations--have long constituted
    an important cultural and economic presence in Oklahoma.
    Through the execution of numerous compacts, the State of
    Oklahoma has in recent years had a constructive and mutually
    beneficial sovereign-to-sovereign relationship with each of
    these Nations.
        This relationship has been complicated somewhat by the
    State's exercising of Federal trust functions in areas
    addressed by H.R. 2880. Specifically, due to the unique Federal
    legislative treatment of Five Nations' allotments, State courts
    have been required to act as Federal instrumentalities for the
    past 96 years in implementing Federal laws governing the
    disposition of these lands, including laws governing approval
    of sales, leases and probates of restricted property. In
    addition to complicating the relationship between the State and
    the Nations, this has placed an unusual burden on the Oklahoma
    judiciary.
        The Governor has observed the development of the Five
    Nations Land Reform Act over the past several years. It was
    most recently introduced earlier this year in the U.S. House of
    Representatives as H.R. 2880 and a substitute version was
    approved by the House on June 11, 2002, after final concerns by
    various interest groups were addressed. As currently written,
    this legislation will have a significant positive impact not
    only on individual Indian owners of Five Nations allotments,
    but also on non-Indian owners of former restricted property. It
    will also have a positive impact on the courts of the State of
    Oklahoma.
        Although H.R. 2880 will require state courts to continue to
    exercise limited jurisdiction over partitions and quiet title
    actions involving restricted lands, it will return most Federal
    trust functions back to the Federal Government. It will
    establish an efficient process for the approval of sales and
    leases of restricted property through a Federal administrative
    process. It will also facilitate the probate of estates
    containing restricted property by placing that function with
    the Federal Government, thus eliminating the costs necessarily
    associated with State court probate actions and enabling Indian
    heirs to secure probates at no cost through use of Federal
    administrative law judges.
        H.R. 2880 also contains a number of provisions that are
    designed to protect vested property rights of third parties and
    establishes a more streamlined process for curing of title
    defects caused by complicated Federal law requirements
    affecting property that was formerly restricted. Thus, it will
    be beneficial to both Indian and non-Indian citizens in
    Oklahoma.
        Although H.R. 2880 will slow the removal of lands from
    restricted status, it will not increase the restricted land
    base and will not have any negative impact on state and local
    tax revenues.
        Governor Keating believes that Oklahoma citizens and
    interest groups have been afforded the opportunity to
    participate in the bill's evolution during the past few years.
    These groups have included the Probate Committee and the Real
    Property Section of the Oklahoma Bar Association, and the
    Indian Nations themselves. Indeed, the Nations have taken an
    active part in the drafting of the bill. He supports the
    enactment of H.R. 2880 into law, and he looks forward to seeing
    the positive impact that this important legislation will have
    on the citizens of Oklahoma. Thank you.
        [Prepared statement of Mr. Robertson appears in appendix.]
        The Chairman. Thank you very much. And will you send our
    greetings to the Governor?
        Mr. Robertson. I will gladly do so.
        The Chairman. Thank you.
        Our next panel consists first of the principal chief of the
    Cherokee Nation, Chad Smith; the principal chief of the
    Muscogee Nation, R. Perry Beaver, who will be accompanied by
    Wilbur Gouge, speaker of the Muscogee Creek National Council;
    the principal chief of the Choctaw Nation of Oklahoma, Greg
    Pyle; the Governor of the Chickasaw Nation, Bill Anoatubby, who
    will not be able to be with us today, but he sends us his
    prepared statement, and without objection, his full statement
    will be made part of the record.
        [Prepared statement of Governor Anoatubby appears in
    appendix.]
        The Chairman. May I first call upon the distinguished chief
    of the Cherokee Nation, Chad Smith.

    STATEMENT OF HON. CHAD SMITH, PRINCIPAL CHIEF, CHEROKEE NATION,
                             TAHLEQUAH, OK

        Mr. Smith. Thank you very much. Let me begin by thanking
    both of you, Chairman Inouye and Vice-Chairman Campbell for the
    opportunity to appear in front of you.
        This is a unique opportunity to present our views in
    support of H.R. 2880, the Five Nations Indian Land Reform Act.
    I say that the opportunity is ``unique'' because although over
    the course of the 20th Century, the U.S. Congress has passed
    numerous laws-in fact, dozens of them-pertaining specifically
    to the allotted lands of the Cherokee, Creek, Choctaw,
    Chickasaw, and Seminole Nations, none of those laws was
    particularly good from the Indian perspective, and many if not
    most were quite bad.
        On the other hand, H.R. 2880 will be good for the Indian
    landowners, and if passed into law it will be the first time in
    over 100 years that Congress has taken a truly dramatic step
    toward protecting the interests of Indian owners of restricted
    lands in eastern Oklahoma. This bill is good for individual
    Indians, it is not a bill that benefits tribes themselves. The
    working committee has accommodated the input of other tribes
    and has gone to extremes to focus this bill for the benefit of
    individual Indians, not to involve tribal issues or to make
    changes to current law regarding tribal entities.
        In other words, the beneficiaries of this bill are the
    full-blooded Indians in Indian territories. It is a bill to
    help them hold on to the last remnants of Indian land within
    our tribal nations.
        I would like to make this point, that the bill was the
    product of considerable work and input from many different
    perspectives, parties and interests. Our lawyers and realty
    staff, of course, had considerable input, but they worked with
    the members of the Oklahoma Bar Association, the Regional
    Central Office, the Bureau of Indian Affairs staff and
    attorneys, with the House Resources Committee, the House
    Legislative Council, the staff of this committee, for which we
    are very grateful. As a result, the bill reflects careful
    balancing of interest, Indian, non-Indian, Federal and local.
    It is a well-crafted piece of legislation that will benefit
    Indian country in eastern Oklahoma.
        In 1930, the Indian Removal Act provided for the present
    exchange lands of the Five Tribes in the Old Country, the
    southeastern United States, Georgia, Tennessee, for those lands
    in Indian Territory west of the Mississippi. What is so unique
    about that situation is that--and distinguishes the Five Tribes
    from most of the other tribes in the country--is that the bill,
    the Indian Removal Act, allowed the presence to exchange the
    highest title that governments can exchange title, we received
    an exchange of fee patent. Actually, we have that fee patent
    framed at our historical site, a beautiful meets and bounds
    description of the Indian territory. The highest exchange of
    lands between governments.
        The other tribes in the country received their lands in
    trust, the Federal government took title. We took title in our
    name. And that caused problems during the allotment period. We
    were not under the General Allotment Act like the rest of the
    tribes, but it was only with the Curtis Act that our lands were
    compelled to be allotted. The principal chief actually signed
    the allotment deeds to alottees.
        And because of that historical scenario, our lands were
    treated differently, and that's because in the last 100 years,
    Congress, from time to time, has gone to treat the Five Tribes
    differently. As a result, you actually had in the Indian
    Country two kinds of allotments. Restricted allotments, in
    which the individual owns title but it's restricted from
    alienation, restricted from mortgaging, sale, gift [and] the
    trust allotments, the trust allotments being held in title by
    the Federal Government.
        So we have two different statutory and administrative
    regimes. We believe this bill is important because it will
    conform the treatment of restrictive allotments to how trust
    allotments are treated, provides as has been testified earlier
    administrative procedures which will reduce the cost of probate
    and provide additional protections.
        I would also invite your attention to the simple fact that
    from the total restricted land base in Oklahoma is only a tiny
    fraction of what it was 98 years ago, in fact, Cherokee
    restricted allotments are one-third of one percent of what they
    were at allotment.
        This bill comes as a result of litigation in the 1980's in
    a case called Walker v. United States, and that case pointed
    out the failures of protections of restricted allotments.
    There's a great law review article and I encourage the
    committee to read it, if you ever can find the time, of course.
    It's called ``Fatally Flawed: State Court Approval of
    Conveyances of the Five Civilized Tribes: Time for Legislative
    Reform.'' It was drafted by Timothy Vollmann and Sharon
    Blackwell in the Tulsa Law Review Journal.
        I'll defer to the rest of the panel for discussion of the
    bill, but I certainly wish and encourage the Congress to pass
    this bill. It's needed reform, we sincerely appreciate it by
    not only the Cherokee Nation, the Five Tribes, but each of our
    citizens.
        [Prepared statement of Mr. Smith appears in appendix.]
        The Chairman. Thank you very much, principal chief Smith.
    And now may I call upon the distinguished principal chief of
    the Muscogee Nation, R. Perry Beaver.

    STATEMENT OF R. PERRY BEAVER, PRINCIPAL CHIEF, MUSCOGEE [CREEK]
     NATION, OKMULGEE, OK, ACCOMPANIED BY WILBUR GOUGE, SPEAKER OF
                  THE MUSCOGEE CREEK NATIONAL COUNCIL

        Mr. Beaver. Thank you, Chairman Inouye, Vice Chairman
    Campbell, and members of the committee. Thank you for this
    opportunity to share some of my thoughts with you about H.R.
    2880, the ``Five Nations Indian land Reform Act.''
        My name is R. Perry Beaver. I am a full citizen of the
    Muscogee [Creek] Nation. I have spent most of my life in the
    Muscogee Nation. I have served as the principal chief of the
    Muscogee Nation for the past 7 years. For many years before
    that, I served as a member of the National Council of the
    Muscogee Nation. My grandparents owned restricted land within
    the Muscogee Nation, my parents owned restricted land and I
    also own restricted entrust land within the Muscogee Nation.
        During my lifetime, I have seen first hand that the Federal
    system for the protection of restricted Indian lands within the
    Muscogee Nation has not protected these lands, and has caused
    great hardship on Indian landowners.
        The current Federal laws affecting our restricted lands are
    complicated and confusing. The Five Nations Indian land Reform
    Act, H.R. 2880, will significantly reform existing Federal
    legislation governing restricted lands owned by allottees, and
    descendants of allottees, of the Muscogee [Creek], Cherokee,
    Seminole, Choctaw, and Chickasaw Nations. H.R. 2880 is the
    result of more than a decade of research, meetings and refining
    of the bill's language.
        This bill before you today is the result of tedious and
    thoughtful work by numerous persons, and many, many revisions.
    We have received considerable input and technical assistance
    from the Department of the Interior personnel at the Muscogee
    Regional Office and the Tulsa Field Solicitor's Office, all of
    whom have extensive and unique experience with the
    implementation of existing Federal land laws affecting Indians
    in eastern Oklahoma. We have held meetings with members of the
    Oklahoma Bar Association Probate Committee and Real Property
    Section.
        Based on their comments and suggestions, we made changes.
    We have spent long hours discussing recommendations with the
    BIA Central Office, and have made many more changes. During the
    past 3 years, we have also utilized the expertise of
    Congressional staff. They have played a major role in ensuring
    that this legislation is consistent with Federal Indian policy
    and is drafted in such a way as to ensure that the intent of
    its provisions is clearly stated.
        I would like to take a few moments to talk about some of
    the problems that restricted landowners in eastern Oklahoma
    have encountered. One of the biggest problems is the historic
    inability of heirs of restricted landowners to have the estates
    probated. Most of these estates have not been probated because
    Indian heirs do not have money to hire private attorneys to
    file probates in the State court system, which is required by
    current law.
        History has also shown that countless acres of restricted
    lands have been lost when state courts have authorized the sale
    of the restricted lands in estates in order to pay the costs
    and attorneys fees for probate of the estate. This often
    involved sale of the entire restricted estate, rather than sale
    of just enough property to pay the costs and attorneys fees.
        Since enactment of the act of June 14, 1918, the Oklahoma
    State courts have had jurisdiction over actions to determine
    heirs of owners of individual restricted Five Tribes
    allotments. The act of August 4, 1947 [the 1947 act] gave State
    courts exclusive jurisdiction of all guardianships and probates
    affecting Indians of the Five Nations. This Federal use of a
    State system to perform Federal trust responsibilities has not
    occurred anywhere else in the country. It has been a failure.
        H.R. 2880 will stop the filing of future heirship and
    probate cases involving restricted lands in Oklahoma State
    court. Instead, the Secretary's designee will have exclusive
    jurisdiction to probate wills, hear estate actions or otherwise
    determine heirs of deceased owners of restricted and trust
    property, including restricted or trust funds or securities.
    This bill authorizes the Secretary to designate administrative
    law judges or other officials to perform these probate duties.
    However, it will permit any probate or heirship proceedings
    that are pending in Oklahoma State court as of the effective
    date of the act being concluded in State court.
        Federal administrative jurisdiction over probates and
    heirships involving trust and restricted property will help
    heirs of deceased restricted landowners to finally obtain title
    to their restricted lands. The case will be prepared
    administratively by realty personnel and then submitted to an
    Indian probate judge. Indian heirs will not need to hire
    attorneys, and there will be no filing fees. During the past
    year or two, the BIA has established new ``attorney decision
    maker'' positions throughout the country to probate Indian
    trust estates.
        There is now an attorney decision maker assigned to western
    Oklahoma to deal with probates involving trust property.
    Enactment of the H.R. 2880 will result in the creation of new
    attorney decision maker positions in eastern Oklahoma. They
    will deal solely with probates of Five Nations restricted and
    trust estates, and by hard work by tribal and Federal
    personnel, with proper funding, we can finally resolve the
    problem of unprobated estates. The bill will reduce the number
    of cases filed in State and Federal court involving restricted
    land.
        Another problem is the use of adverse possession as a way
    of taking restricted land. That has been a unique problem faced
    by restricted Indian landowners. This problem started when
    Congress enacted the Act of April 12, 1926, which made Oklahoma
    State's limitations apply to restricted land. Nowhere else in
    the country are state statute of limitations applied to Indian
    lands. In eastern Oklahoma, the Oklahoma statute of limitations
    is used to allow persons to acquire title to property if they
    meet various requirements, including open and hostile
    possession of the land for a period of 15 years or more.
        Many acres of restricted lands have been lost through
    adverse possession. H.R. 2880 has been drafted to eventually
    place restricted lands in the same status as trust lands, which
    are not subject to adverse possession. It will allow adverse
    possession of restricted lands only if all requirements of
    Oklahoma law for acquiring title by adverse possession,
    including the running of the full 15-year limitations period,
    have been met before the effective date of this act.
    Eventually, adverse possession of restricted land will become a
    thing of the past.
        A large amount of restricted Indian land in eastern
    Oklahoma has also been lost through forced partition sales,
    which were filed in state court, based on the Act of June 14,
    1918, which made state partition laws applicable to restricted
    lands in eastern Oklahoma. This 1918 law is different from
    Federal laws and regulations applicable to partition of trust
    property. Under those laws, partitions of trust property are
    under the Secretary's jurisdiction. Under H.R. 2880,
    involuntary partition of trust property and voluntary partition
    of restricted and trust property will be removed from State
    court jurisdiction. These partitions will be under the
    Secretary's jurisdiction.
        The bill will continue to allow involuntary partition of
    restricted property to be filed in state or Federal court for
    ten years from the effective date of the act. Under State law,
    an owner of an individual interest, no matter how small, can
    force the sale of the entire acreage. Although this will not
    change immediately under the provisions of the proposed bill,
    the proposed bill will allow an Indian owner who doesn't
    consent to a partition sale to receive a minimum of 90 percent
    of the appraised value and will not allow assessment of costs
    against nonconsenting owners.
        This will be an improvement, since at the present time,
    Indian owners may receive only two-thirds of the appraised
    value of property sold in a forced partition, and the costs of
    the proceedings are paid from the sales proceeds before
    distribution to the Indian owners.
        H.R. 2880 will also establish a non-judicial procedure for
    Indians and non-Indians to cure certain types of title defects
    in restricted property or former restricted property, without
    requiring the owner to file a quiet title action. This will
    save the landowners money without putting a greater burden on
    the Federal Government. Under current law, there is already
    extensive Federal involvement. Notice of quiet title suits
    involving restricted property must be given to the BIA Eastern
    Oklahoma Regional Director. Regional Office staff and tribal
    realty staff must conduct a detailed review to determine
    whether the Federal Government should consider further
    involvement in the case.
        Many cases are referred to the Tulsa Field Solicitor's
    Office. Some cases require representation by the U.S. Attorney
    and removal to Federal court. The bill will streamline the
    process and will be more efficient. The U.S. District Courts in
    the State of Oklahoma and Oklahoma State District Courts will
    still keep jurisdiction over quiet title actions, provided that
    they meet various requirements. H.R. 2880 also authorizes the
    courts of the State of Oklahoma to continue to exercise Federal
    instrumental authority over heirship, probate, partition, and
    other actions involving restricted property pending on the
    effective date of this act, unless the petitioner, personal
    representative, or State court dismisses the action.
        H.R. 2880 will repeal various inconsistent Federal laws, as
    well as laws that it has revised. This will be helpful, because
    it will do away with scattered laws that are in some cases
    almost a century old, and will replace these laws with one
    centralized and organized law that will be more accessible to
    the people affected by this law, and to the persons who must
    assist in implementation of this law.
        This bill before you is not perfect. It is not possible to
    have a perfect bill, especially when there are so many factors
    and issues that must be covered by this law. But I believe that
    this bill is ready to be enacted into law. I believe that the
    time is long overdue for Congressional action to remedy
    inequitable Federal legislative treatment that the Five Nations
    have received for the past century. I believe that by taking
    this step, Congress will enable our people to keep those last
    few remaining acres of restricted Indian lands within their
    families.
         In a 20-year period between 1978 and 1998, more than
    11,430 acres of restricted lands became unrestricted, and it is
    likely that most of these lands went out of Indian ownership
    altogether. The bill will not increase the Indian land base,
    but it will reduce the amount of land that is being lost. We
    cannot afford to wait any longer for this legislative reform. I
    ask that this Committee use all possible speed to take
    appropriate action and ensure that this bill is made into law
    in 2002.
        Again, thank you for the opportunity to appear before you
    today.
        [Prepared statements of Mr. Beaver and Mr. Gouge appear in
    appendix.]
        The Chairman. Thank you very much, chief. Before
    proceeding, I would like to recognize the distinguished Senator
    from Oklahoma.

     STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM OKLAHOMA

        Senator Inhofe. Thank you, Mr. Chairman.
        First of all, let me apologize for the way things are run
    here in Washington. It's not my fault, but we're having our big
    hearing, our public hearing on intel on the 9-11, and its those
    of us who serve on the Intelligence Committee, it's required
    attendance and that's taking place at the same time, so I have
    to go back and forth.
        I have one question I was going to ask Ms. Martin and since
    she's not up there, I can ask this question and she can nod.
    There's been a lot of confusion about this and I've had a lot
    of inquiries, and I know all the distinguished participants at
    the table very well personally, but people asking questions as
    to how, what's going to be affected in all this. I would like
    to simplify it and ask Ms. Martin if it's true.
        All this bill would do is put the land owned by Indians in
    eastern Oklahoma on the same footing as western Oklahoma and
    the rest of the country.
        Ms. Martin. [Nodding.]
        Senator Inhofe. And there are no other little seekers?
    Okay, I've had a chance to talk to a number of people about
    this and they keep coming up with other ideas and so I was
    hoping this would come through. Let me just say, Mr. Chairman,
    I know that I'm out of order here, but just say I'm really glad
    to be here to welcome our distinguished guests and would like
    to ask them just one question if it would be alright. Thank you
    Mr. Chairman.
        You know, the Bureau of Indian Affairs is not known for
    running things as well as they should be running things, and we
    have all had personal conversations about this. This bill, if
    passed, is going to put a greater amount of responsibility on
    them. Do the three of you all feel comfortable with this, that
    it would be properly administered to your mutual benefits?
        Mr. Beaver. Yes, Senator; I think it could properly
    administrate it, but one thing I did note in there is that it
    must have proper funding.
        Mr. Pyle. Senator, If I may, I think all three of these
    tribes and most of the other tribes, all but maybe the
    Seminole, actually contract with the Department of the Interior
    to run these sections, so we would actually need funds, but we
    actually operate it now.
        Senator Inhofe. Thank you, Chief Pyle.
        Mr. Smith. Certainly, Senator, it would be a vast
    improvement over the system we have now.
        Senator Inhofe. Alright, that's the main thing I wanted to
    ask, Mr. Chairman. Thank you for your indulgence.
        The Chairman. Thank you very much for your presence.
        Senator Inhofe. Yes, sir.
        The Chairman. And now may I recognize the principal Chief
    of the Choctaw Nation of Oklahoma, Greg Pyle.
        Chief Pyle.

      STATEMENT OF GREG PYLE, PRINCIPAL CHIEF, CHOCTAW NATION OF
                          OKLAHOMA, DURANT, OK

        Mr. Pyle. Mr. Chairman, Senator Campbell, and members of
    the committee, ladies and gentlemen, my name is Gregory Pyle,
    I'm the chief of the Choctaw Nation of Oklahoma. We are the
    third largest tribe in the United States right behind our
    neighbors, the Cherokee. Of course, we reside in the southeast
    corner, one-fourth of the State of Oklahoma. I am here today to
    lend my support to the swift passage of H.R. 2880, a bill to
    right inequities which exist in the treatment of individual
    land allotments held by the Five Indian Tribes.
        We have a situation in the lands of the so-called Five
    Civilized Tribes which is unique in the U.S. Government. In the
    1830's, when my ancestors were removed from the South Eastern
    United States to the Oklahoma Indian Territory, the treaties
    were signed and transferred the land to the Five Tribes in fee
    simple. The lands were subject to a Federal alienation, but
    were in a different legal status than the lands reserved to
    Western Tribes in the treaties covered by the period 1830-75.
        As a result, our lands were not subject to the
    distributions and ravages of the 1888 Dawes Act. We went into
    the era of Statehood for Oklahoma with our land base fairly
    intact. In this respect, we were lucky, then. However, this
    situation did not last.
        During the period 1900-47, a series of land acts applicable
    only to the Five Tribes in eastern Oklahoma were passed which
    led to the present complex situation. To summarize,
    jurisdiction over probate and other actions involving
    individual title to allotted lands was transferred to the State
    District Courts of Oklahoma. Actions in these courts were
    subjected to costs and attorneys fees which led to thousands of
    acres of land being sold away from decedents to pay court costs
    associated with the estates.
        Thousands of estates have not been probated or have been
    subjected to inordinate delays. Thousands of acres of land have
    been lost by adverse action suits, when non-Indians have
    encroached on Indian lands without the knowledge of Indian
    owners. Since most Indians die without a will, the situation
    has been made worse.
        Frankly, protections against loss of land and with respect
    to estates which have been afforded every other Indian tribe in
    the United States are denied in eastern Oklahoma. H.R. 2880
    responds to this situation with remedial action. In brief, it
    would repeal the tangle of estate and property laws which apply
    to the eastern one-half of Oklahoma, and replace them with
    simple statements of law similar to the rest of Indian country.
    It is a cornerstone, a vesting of jurisdiction away from State
    courts, and placement of it with the U.S. Secretary of the
    Interior. Its provisions are too numerous to be set forth in
    detail in my testimony. However, we have reviewed them, and we
    are in full support of the bill.
        There is one cautionary note, however, which I must bring
    up. Under current law, records pertaining to land and
    descendants and tribal status are maintained by the Five
    Tribes, under contract with the Department of the Interior. We
    receive support under our contract for this activity, though
    the amount received has been insufficient in the past and has
    to be augmented by the Choctaw Nation. Under current law, we
    are responsible for providing this information to Members of
    the Choctaw Nation and to descendants of Members or those on
    the original rolls of the Choctaw Nation.
        Under new legislation, however, the tribes will be expected
    to provide information to any descendant of a member or an
    original enrollee, regardless of degree of Indian blood. This
    will be a substantial burden. This burden was recognized by the
    Congressional Budget Office, which, in their report published
    as part of the House Committee Report on the bill, found a need
    for substantial increases to the funds provided to tribes for
    those services. We hope we can rely on our friends in the
    Congress to see that such funds are provided in the future.
        Mr. Chairman, that completes my testimony. I will be happy
    to answer any questions you may have on the bill.
        [Prepared statement of Mr. Pyle appears in appendix.]
        The Chairman. Thank you very much Chief Pyle.
        If I may proceed in my questions with the principal chief
    of the Cherokee Nation, Chief Smith, you have heard my
    questions to the Deputy Assistant Secretary of the Department
    of the Interior. In your view, does this bill allow restricted
    lands of the United Keetoowah Band members to escheat to the
    Cherokee Nation of Oklahoma?
        Mr. Smith. Senator, in 1970, this Congress passed law that
    restricted what allotments would escheat to the Cherokee
    Nation. This bill does not change existing law, law that's been
    on the books for 32 years.
        The Chairman. And do you agree that the members of the
    United Keetoowah Band are descendants of the historic Cherokee
    Nation?
        Mr. Smith. Sir, the question is framed a bit awkwardly.
    There is not an historical Cherokee Nation. There is only one
    Cherokee Nation. From our constitution of 1839 to the 1906 Act,
    to our present constitution in 1975, those issues have been
    laid to rest by the Federal judges in the northern District of
    Oklahoma. There is only one Cherokee Nation, before and after
    statehood, now for 180 years.
        The Chairman. Would the Cherokee Nation of Oklahoma agree
    to include the United Keetoowah Band within the definition of
    Five Nations?
        Mr. Smith. We would not, sir.
        The Chairman. I thank you very much and now, if I may ask
    Chief Beaver. You have indicated the restricted lands have been
    lost through court-ordered sales in order to pay for costs of
    probate and in addition, much restricted land has been lost
    through adverse possession. Do you have any estimate of how
    much restricted land has been lost through such processes?
        Mr. Beaver. No, Senator; but I can get it. I know it's been
    happening, as far as adverse possession and as far as partition
    for sale of land and stuff like this. Personally, my mother
    lost her land because of partition for sale. She was forced to
    sell her land because we couldn't afford to buy the other
    person out. And as far as, personally, I've owned trust land,
    I've owned restricted land also, and it's a big problem. We
    were forced to have ours probated ourselves, because we could
    afford an attorney.
        But those who could not afford an attorney, their land was
    sold. And then, from that sale of land, had to pay the
    attorneys. And so that's where some of their land was lost. As
    of right now, in 1906, when the land allotment, we got some
    original allottees, they have to be 96 years old, and we have
    about 20 original allottees, and you see that's three
    generations, and we as an original allotted land have never
    been probated. And so you can see the complexity that we have
    right now, that if we went to State court, what would it take?
    So, I don't know exactly what land has been lost, I know that
    it happened. I can get that information to you.
        The Chairman. I would appreciate that. Can you get it to us
    rather soon, because we would like to report the to the full
    Senate.
        Mr. Beaver. Yes, sir.
        The Chairman. Then may I say that the record of the
    proceedings will be kept open for 1 week in order to receive
    additional information and testimony. Chief, how many estates
    need to be probated in your nation?
        Mr. Beaver. Senator, I wouldn't know, but there's such a
    backlog, that I would dare to guess. I could ask our Attorney
    General, she handles most of them. We probate now because we
    contracted from them to do that. But we can only do three or
    four a month at most, we're way behind. In fact, we stopped
    taking action on probates any more because our backlog is so
    far behind. The complexity of it is so much that it's going to
    take a full-time attorney such a long time.
        The way it is now, I have restricted land and trust land in
    three different counties in Oklahoma. My will has to be sent to
    each county by an attorney. When it's probated with a will,
    that's the complexity we have right now. We have to go to each
    county courthouse in each district and file our will. This
    would solve all of that.
        The Chairman. If the defective transactions that you spoke
    of are cured, will this result in the return of restricted
    lands to the tribes?
        Mr. Beaver. I'm going to have to defer that to Chief Smith.
        Mr. Smith. It would not increase the land base of
    restricted lands. It protects the remnants that we have now. It
    does not expand the land base.
        The Chairman. Thank you very much. If I may ask a few
    questions of the chief of the Choctaw Nation. Is there anything
    that would preclude the possibility of amending the contracts
    with the Department to provide additional funds to take the
    increased burden into account?
        Mr. Pyle. I think this could be brought up because we've
    never been allowed to have these probates. I think what would
    happen then is that the Secretary, the Assistant Secretary
    would have to make available the at least a small portion of
    more money. We have used, in the past, tribal resources. We are
    not a class III gaming tribe, we do not have legalized gaming
    pass bingo in our areas, but what we've had we supplemented
    with tribal funds ourselves.
        In response to your question earlier, it was estimated how
    many probates were out there, somewhere about 5,000 in an
    estimate about 5 years ago. It will take a long time.
        The Chairman. I understand that the new laws applying to
    the lands in northeastern Oklahoma will be similar to the rest
    of Indian country, but how will the new laws be different?
    Would they be any different?
        Mr. Pyle. My understanding [is] we would be treated like
    other tribes.
        The Chairman. As Senator Inhofe indicated.
        Mr. Pyle. Yes, sir.
        The Chairman. Mr. Vice Chairman.
        Senator Campbell. Thank you Mr. Chairman. Between the
    questions you asked and the very complete testimony of Chiefs
    Beaver, Smith, and Pyle, I don't have a lot of questions. I've
    always been somewhat fascinated, though, by the history of the
    Five Civilized Tribes as opposed to the rest of us who, I
    assume come from uncivilized tribes. I know they've been
    treated differently in history. I've never understood a little
    bit of it. Maybe you can clear up a couple of questions for me.
        I understand from many Cherokee friends that there are two
    types of enrollment, one called a red-card enrollment, one a
    blue-card enrollment. Is that familiar to you, Chief? One with
    benefits, one without benefits? This is what I've heard from
    people in California who all tell me they are Cherokees. You've
    got a lot of them out there.
        Mr. Smith. The Cherokee rolls go back to the Dawes
    Commission roll in the early 1900's. The Cherokee Nation prior
    enrollment requires a certificate degree of Indian blood and we
    issue a citizenship card which is usually blue. The United
    Keetoowah Band, which originated in 1950, has a membership card
    also. Much of their membership goes back to the Dawes
    Commission enrollment, their card, I believe, at one time was
    red.
        There are a lot of groups out there who profess to be
    Cherokee Nations and they're not citizens of the Cherokee
    Nation, you cannot trace back to the Dawes Commission roll.
        Senator Campbell. The effects of this bill will, in effect,
    will be for the people who can trace ancestry through what are
    called red card holders.
        Mr. Smith. Through the Dawes Commission rolls.
        Senator Campbell. The Dawes Commission rolls. Is that based
    on blood quantum or lineal descendency?
        Mr. Smith. The Dawes Commission rolls were closed in 1905.
    You had to be a resident in the Five Tribes and you had to have
    some showing of blood quantum. You did not have to have a
    minimum. So that's the base roll for the Five Tribes.
        Senator Campbell. Now they just have to, when a person's
    enrolled, they just have to show lineal descendency to somebody
    that was on the Dawes Roll, the original Dawes Roll, is that
    correct?
        Mr. Smith. That's correct. Senator Campbell. Unlike other
    tribes where you have to, in some cases, have one-fourth
    provable or something of that nature, is that correct?
        Mr. Smith. Each of the Five Tribes is a little different
    scenario. With the Cherokee Nation, we don't have a minimum
    blood quantum. We follow the theory that it's a right of
    citizenship, it's a political right rather than a racial right.
        Senator Campbell. So this bill--maybe I'm way off on this
    thing, I'm just totally out in left field here. How would this
    affect people, for instance, who are members of the tribe but
    haven't been there for 100 years. Through lineal descendency,
    they've been put on the roll but they're out in California,
    they couldn't recognize an Indian if they stumbled into one.
        Mr. Smith. This bill has a very limited application. It
    really applies to those Indians who by definition have
    restricted lands now and they have to be one-half degree or
    more. Those who are less than one-half degree would not be
    directly affected by this bill until heirship become an issue.
    It's one-half or more.
        Senator Campbell. Chiefs Pyle and Beaver, are your rules
    established pretty much the same way as the Cherokee?
        Mr. Beaver. Yes, Senator; this bill only affects those
    landowners that have restricted or trust property.
        Senator Campbell. I see.
        Mr. Pyle. It would be the same with the Choctaw.
        Senator Campbell. Same with the Choctaw. Okay.
        Thank you, Mr. Chairman.
        The Chairman. Thank you very much.
        The Chairman. Our next panel consists of the chief of the
    Delaware Tribe of Indians of Oklahoma, Dee Ketchum, and the
    chief of the United Keetoowah Band of Oklahoma, Dallas Proctor,
    who will be accompanied by the council member of the United
    Keetoowah Band, Charles Deason.

      STATEMENT OF DEE KETCHUM, CHIEF, DELAWARE TRIBE OF INDIANS,
                            BARTLESVILLE, OK

        Mr. Ketchum. Good morning. I want to thank the committee
    for taking the time to seriously consider this very important
    bill. My name is Dee Ketchum, I am the chief of the Delaware
    Tribe of Indians located in Bartlesville, OK.
        To give you a little background concerning the Delaware
    Tribe, it was the first treaty tribe to have a government-to-
    government relationship with the U.S. Government, in 1778.
    Since then, we have maintained our government-to-government
    relationship with the U.S. Government.
        In about 1867, the tribe was removed to the lands within
    the former Cherokee boundaries in Oklahoma. At that time, we
    had to purchase all the rights of native Cherokees and purchase
    approximately 157,000 acres from the Cherokee Nation at a price
    of $1 per acre to preserve our tribe. We have continuously
    resided within northeastern Oklahoma since 1867. Most of the
    Delawares took their allotments the same as Cherokees during
    that period of time. But 198 took their allotments as
    Delawares. These 198 allotments are known as ``D-alottments.''
        Since the reorganization of the Cherokee Nation in 1975,
    our relationship with the Cherokee Nation has not been good at
    best. The Cherokees resent our presence in their old
    reservation and would like dearly to see us evicted. We believe
    that various provisions of this bill, drafted by Cherokee
    attorneys, are intended to further the Cherokee's goal of doing
    away with the Delaware Tribe.
        While we support the goal of H.R. 2880 to do away with the
    blood quantum requirements for inherent allotments, we have
    been concerned with some of the unnecessary language in the
    bill, and some of the drafts of this Five Nations Act. While
    Senator Inhofe and his staff have helped us to modify some of
    the objectionable language, we still have four concerns
    remaining with this particular bill.
        First, we would request that the committee amend the
    language to clarify that Congress is not intending to recognize
    existing reservation boundaries of the Cherokee Nation. We have
    requested, instead, that the committee refer to this area and
    the ``former'' boundaries of the Five Nations.
        Second, H.R. 2880 has created a new term, ``Individual
    Indian.'' With this new capitalization, this implies there is
    some kind of new term of art. The definition of Indian in this
    act is clearly limited to this act and we see no reason to
    create a new category. We would therefore request that the
    committee drop the capitalized ``I'' in ``Individual Indian''
    throughout this bill for the same reason we would ask the
    committee drop the word ``individual'' from ``Individual
    Indian'' in the definition section.
        Third, section 204 (a)(3) is a section dealing with trust
    lands. It provides that if an Indian tribe in eastern Oklahoma
    owns part of a trust land, the Assistant Secretary cannot force
    a partition, but the provision applies to only one of the Five
    Nations. In this bill, intent to apply to restricted allotments
    moves into the area of trust lands that limits reference to the
    five larger tribes.
        To me, this shows an intent from Congress not to recognize
    the rights of the Delaware Tribe to have land put in trust.
    There is no reason why the Five Nations' right to retain
    interest in land trust should be favored over the other six
    federally-recognized tribes in eastern Oklahoma.
        We are requesting that this provision be amended to include
    the language of ``or other Indian tribes.''
        Fourth, section 408 is supposed to clarify that nothing in
    the act is intended to affect the existing laws for taking land
    in trust. But it only applies to individual Indians and does
    not effect the same protection to other tribes residing in
    northeastern Oklahoma. Again, to me, this means that Congress
    is not interested in treating the Delaware on equal terms and
    grounds with other tribes. We have also requested that this
    provision be amended to include a reference to ``other Indian
    tribes.''
        In conclusion, I would like to ask, on behalf of the
    Delaware Tribe, amend these problematic provisions before
    moving this bill forward. I thank you for your time. Again, we
    do feel like this is a good bill with good intent, but there
    are some problematic provisions in there we have concerns with,
    personally. Thank you.
        [Prepared statement of Mr. Ketchum appears in appendix.]
        The Chairman. Thank you very much, Chief.
        And may I now recognize Chief Proctor of the United
    Keetoowah Band.

      STATEMENT OF DALLAS PROCTOR, CHIEF, UNITED KEETOOWAH BAND,
      TAHLEQUAH, OK, ACCOMPANIED BY CHARLES DEASON, COUNCIL MEMBER

        Mr. Proctor. Thank you, Mr. Chairman, I would like to thank
    you guys in the language first. Good morning, my name is Dallas
    Proctor, and I am the chief of the United Keetoowah Band, the
    Cherokee Indians in Oklahoma. With me this morning is Charles
    Deason. He's a council member and the Tribal Legislative
    Liaison.
        Thank you on behalf of the United Keetoowah Band [UKB] for
    the opportunity to testify regarding H.R. 2880, the Five
    Nations Indian Land Reform Act. Your committee has a proud
    history of protecting and furthering tribal sovereignty.
    Because of this, we are hopeful that you will amend H.R. 2880
    to reflect the fact that the United Keetoowah Band of Cherokee
    Indians is a separate government from the Cherokee Nation of
    Oklahoma [CNO] and one with equal sovereignty and equal claim
    to inheritance of authority and rights of the historic Cherokee
    Nation.
        There is a complex problem with this bill because of the
    interwoven nature of the two tribes and their tribal members
    regarding their restricted lands, but there is a simple fix.
    The harms that this bill intends to correct were visited upon
    the historic Cherokee Nation.
        That historic Cherokee Nation has been succeeded by two
    federally recognized tribes both having descendants from the
    1906 Dawes Rolls and both having descendants who own restricted
    property. Ninety eight percent of the UKB members still live
    within the boundaries of the historic Cherokee Reservation. All
    of the UKB and CNO members in Oklahoma are affected, and both
    tribes should be named in the bill as successor to the historic
    Cherokee Nation.
        We ask this committee to amend the definition of the Five
    Nations in section 4(1) of the bill to provide that the term
    ``Five Nations'' means ``the Cherokee Nation through its
    successors, the United Keetoowah Band of Cherokee in Oklahoma
    and the Cherokee Nation of Oklahoma.'' If the term ``Cherokee
    Nation'' were defined as its present successors, CNO and UKB,
    much of the bill would be repaired. We ask that you do so to
    ensure that these reforms apply with equal fairness to all
    descendants of the historic Cherokee Nation.
        If enacted without this change, our tribal members face the
    prospect of having many aspects of their lives related to
    lands, property, and inheritance determined by a tribal
    government that is not their own. It would impede the
    sovereignty right of UKB to protect our members and exercise
    jurisdiction over our lands.
        UKB is a federally-recognized tribe. We ask this committee
    to respect the fact that the Federal Government, at the
    direction of Congress, already recognizes the UKB as sovereign
    and independent of the present-day Cherokee Nation of Oklahoma.
    While our people are closely related and we were at one point
    part of the historic Cherokee Nation, we now have separate,
    federally recognized governments. Just as there are a number of
    Sioux tribal governments in South Dakota, there is more than
    one Cherokee tribal government in Oklahoma.
        As evidence of UKB status, we note:
        No. 1, the United States Congress, through the act of 1946,
    legislatively authorized the United Keetoowah Band of Cherokee
    Indians in Oklahoma to organize as a separate tribal entity
    under the Oklahoma Indian Welfare Act;
        No. 2, the Secretary of the Interior approved the
    Constitution of the United Keetoowah Band of Cherokee Indians
    in Oklahoma in 1950;
        No. 3, UKB was listed by the Department of the Interior
    most recently in the July 12, 2002 Federal Register as a
    federally recognized tribe; and
        No. 4, UKB contracts under the Indian Self-Determination
    Act with the BIA to administer funds for services to its
    members.
        There are two successor governments to the 1906 Cherokee
    Nation rolls. The UKB ancestors were part of the historic
    Cherokee Nation at the time of the act of April 26, 1906, that
    dismantled the Cherokee government, allotted portions of the
    Cherokee lands and caused the creation of the final roll of the
    Cherokee Nation. H.R. 2880 addresses problems that flow from
    that and subsequent legislation affecting the land rights of
    lineal descendants of the Five Nations, including the historic
    Cherokee Nation.
        While only five such governmental entities existed in 1906,
    that is no longer true. Because UKB members are lineal
    descendants of the 1906 Cherokee rolls, H.R. 2880 covers them
    and their property. However, no role has been provided for that
    tribal government. We have attached more detailed information
    regarding the history of the United Keetoowah Band of Cherokee
    Indians of Oklahoma.
        We support the goal of H.R. 2880. Reform is certainly
    needed. Amending the bill to give UKB its rightful treatment as
    a tribal government would not undermine the intent of the bill,
    but would allow UKB to serve its members. We have attached
    several specific recommendations for proposed changes.
        The United Keetoowah Band of Cherokee Indians in Oklahoma
    thanks you for your hard work on this important bill to end the
    disparities of Indian land tenure in Oklahoma. Our comments are
    intended to avoid the creation of new and unintended
    disparities. We ask again that you amend the bill to respect
    the sovereign status of the UKB. Thank you.
        [Prepared statement of Mr. Proctor appears in appendix.]
        The Chairman. I thank you very much, Chief. Both of your
    nations are federally-recognized tribes?
        Mr. Proctor. Yes, sir.
        The Chairman. And both of you have testified that there are
    certain provisions that you want amended in this measure.
        Mr. Proctor. Yes, sir.
        The Chairman. Would you be in favor of having this bill
    passed by the Senate as it is, unamended, with the assurance
    that there will be another bill that will be considered for
    further amendments to this bill? I ask this question because if
    we were to go through the process of amending this measure at
    this stage in the U.S. Senate, it will have to go to conference
    with the House, and the time being what it is with activities
    in Iraq, the 13 appropriations measures, I cannot assure that
    this measure would be considered expeditiously. The only way we
    can consider this expeditiously is to pass the measure as it is
    so that it will go directly to the President or hold it up and
    possibly consider the bill next year with the amendments. I can
    in no way assure you how the conference would turn out and so
    what are your thoughts on that?
        Mr. Ketchum. Mr. Chairman, I can't speak for United
    Keetoowah, I understand what you're proposing, from the
    Delaware perspective, I understand the seriousness of timeline
    here. It would be difficult for me to state that I would agree
    with that procedure without seeing what those amendments would
    be and could be assured that they would be employed.
        The Chairman. Chief Proctor.
        Mr. Proctor. I would defer that to Mr. Deason for comment,
    sir.
        Mr. Deason. Mr. Chairman, thank you for the opportunity to
    speak before you. At this time, I believe we would have to
    object to that without, as Mr. Ketchum said, seeing the
    amendments and not knowing the assurances that we would have
    should it go through as it is currently written. Those are some
    things that we as tribal leaders would have to get the input
    from our constituents who we represent, and this is what we're
    standing for today.
        The Chairman. May I ask another question of those of the
    chiefs? Have you attempted to discuss or negotiate this matter
    with the principal chief and his council of the Cherokee
    Nation?
        Mr. Ketchum. We have been in negotiation with the Cherokee
    chief on a number of projects for a number of years and it has
    been fruitless in some of our discussions, Mr. Chairman.
        Mr. Proctor. We have not had any negatives with Chief
    Smith. What I understand is that he just does not want to talk
    to us. And that's the best answer I can give you today, sir.
        The Chairman. From what I gather, the relationship that the
    Delawares and the Keetoowahs have with the Cherokee Nation can
    be described as being good, is that correct?
        Mr. Proctor. Yes, sir.
        The Chairman. And friendly?
        Mr. Ketchum. Pretty much, so.
        The Chairman. And they have not done anything that would
    anger you?
        Mr. Ketchum. Are you making reference to the association of
    the Delaware Tribe with the Cherokee Nation? Of what that kind
    of relationship has been? Not good. With us and the Delawares
    and the Cherokee Nation.
        The Chairman. Are both of you opposed to having this
    measure be considered as it is and sent to the President with
    the assurance that amendments would be considered at a later
    date? I cannot assure you as to what the amendments would look
    like, because there is a House of Representatives. I cannot
    speak for them.
        Mr. Ketchum. I probably would stay with what I previously,
    Mr. Chairman, have stated. It would be very difficult for me to
    state that I would approve that without seeing what those
    amendments and corrections would be.
        The Chairman. And I presume that is the position of Chief
    Proctor?
        Mr. Proctor. Yes, sir; it is.
        The Chairman. Well, that is why we have committees. We will
    do our best to resolve this matter and I thank both chiefs and
    Mr. Deason. Our final witness is the attorney at law from Ada,
    OK, Bob Bennett. Is Mr. Bennett here? If not, the record of
    this committee proceeding will be kept open for 1 week and with
    the assurance that if any witnesses have any addendums or
    corrections, any further testimony you want to submit, please
    do so, but do so within 1 week.
        With that, I thank all of you for your participation. It
    has been very helpful.
        Thank you very much.
        [Whereupon, at 11:13 a.m., the committee was adjourned, to
    reconvene at the call of the Chair.]
    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

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

     Prepared Statement of Gregory Pyle, Chief, Choctaw Nation of Oklahoma

        Mr. Chairman, Senator Campbell, members of the committee, ladies
    and gentlemen:
        My name is Gregory Pyle, and I am the chief of the Choctaw Nation
    of Oklahoma. We are the third largest Indian Nation in the United
    States right after our neighbors who are also here today, the Cherokee,
    and we reside in the South Eastern one-quarter of the State of
    Oklahoma. I am here today to lend my support to the swift passage of
    H.R. 2880, a bill to right inequities which exist in the treatment of
    individual land allotments held by Indians in the lands of the Choctaw,
    Cherokees, Creeks., Chickasaws, and Seminoles.
        We have a situation in the Lands of the so-called Five Civilized
    Tribes which is unique in the area of U.S. Indian Affairs. In the
    1830''s, when my ancestors were ``removed''' from the South Eastern
    United States to the Oklahoma Indian Territory beyond the Mississippi,
    the treaties we signed transferred the land to the Five Tribes in fee
    simple. The lands were subject to a Federal restraint of alienation,
    but they were in a different legal status than the lands reserved to
    other Western Tribes in the treaties covered by the period 1830-1875.
    As a result, our lands were not subject to the distributions and
    ravages of the 1888 Dawes Act, and we went into the era of Statehood
    for Oklahoma with our land base fairly intact. In this respect, we were
    lucky.
        However, this situation did not last. During the period 1900-1947,
    a series of Land Acts applicable only to the Five Tribes in Eastern
    Oklahoma were passed which led to the present complex situation.
        To Summarize: Jurisdiction over probate and other actions involving
    individual title to allotted lands was transferred to the State
    District Courts of Oklahoma. Actions in these courts were subjected to
    costs and attorneys fees which led to thousands of acres of land being
    sold away from decedents to pay court costs associated with the
    estates. Thousands of estates have not been probated or have been
    subjected to inordinate delays. Thousands of acres of land have been
    lost by adverse action suits, when non-Indians have encroached on
    Indian lands without the knowledge of Indian owners. Since most Indian
    decedents die without a will, the situation has been made worse.
        Frankly, protections against loss of land and with respect to
    estates which have been afforded every other Indian tribe in the
    Country are denied in Eastern Oklahoma. H.R. 2880 responds to this
    situation with remedial action. In brief, it would repeal the tangle of
    estate and property laws which apply to the Eastern one-half of
    Oklahoma, and replace them with simple statements of law similar to the
    rest of Indian country. Its cornerstone is a vesting of jurisdiction
    away from State Courts, and placement of it with the United States
    Secretary of the Interior. Its provisions are too numerous to be set
    forth in detail in my testimony. However, we have reviewed them, and we
    are in full support of the bill.
        There is one cautionary note, however, which I must bring up. Under
    current law, records pertaining to land and descent and tribal status
    are maintained by the Five Tribes, under contract with the Department
    of the Interior. We receive support under our contract for this
    activity, though the amount received has been insufficient in the past
    and has had to be augmented by the Choctaw Nation. Under current law,
    we are responsible for providing this information to Members of the
    Choctaw Nation and to descendants of Members or those on the original
    rolls of the Choctaw Nation if they have one-half degree of Indian
    blood. In fact, we have been supplying support to those of one-fourth
    degree descent for years. Under the new legislation, however, the tribe
    will be expected to provide information to any descendant of a Member
    or of an original enrollee, regardless of degree of Indian blood. This
    will be a substantial burden. This burden was recognized by the
    Congressional Budget Office, which, in their report published as part
    of the House Committee Report on the bill, found a need for substantial
    increases to the funds provided to tribes for these services. We hope
    we can rely on our friends in the Congress to see that such funds are
    provided in the future.
        Mr. Chairman, that completes my testimony. I will be happy to
    answer any questions you may have on the bill.

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