[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
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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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.]
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A P P E N D I X
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Additional Material Submitted for the Record
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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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