[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.]
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                            A P P E N D I X

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              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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