[Senate Hearing 110-469]
[From the U.S. Government Publishing Office]
S. Hrg. 110-469
S. 1080, H.R. 2120, S. 2494, H.R. 2963, AND S. 531
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
S. 1080, THE CROW TRIBE LAND RESTORATION ACT
H.R. 2120, TO DIRECT THE SECRETARY OF THE INTERIOR TO PROCLAIM AS
RESERVATION FOR THE BENEFIT OF THE SAULT STE. MARIE TRIBE OF CHIPPEWA
INDIANS A PARCEL OF LAND NOW HELD IN TRUST BY THE UNITED STATES FOR
THAT INDIAN TRIBE
S. 2494, THE SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION GRAND
COULEE DAM EQUITABLE COMPENSATION SETTLEMENT ACT
H.R. 2963, THE PECHANGA BAND OF Luiseno MISSION INDIANS LAND TRANSFER
ACT OF 2007
S. 531, A BILL TO REPEAL SECTION 10(f) OF PUBLIC LAW 93-531, COMMONLY
KNOWN AS THE ``BENNETT FREEZE''
__________
MAY 15, 2008
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on May 15, 2008..................................... 1
Statement of Senator Dorgan...................................... 1
Witnesses
Gidner, Jerry, Director, Bureau of Indian Affairs, U.S.
Department of the Interior.....................................2, 115
Prepared statement........................................... 115
Macarro, Hon. Mark, Tribal Chairman, Pechanga Band of Luiseno
Mission Indians................................................ 69
Prepared statement........................................... 71
Maxx, Raymond, Chairman, Navajo-Hopi Land Commission............. 103
Prepared statement with attachment........................... 104
Nuvamsa, Hon. Benjamin H., Chairman, Hopi Tribe.................. 100
Prepared statement........................................... 102
Payment, Hon. Aaron, Chairperson, Sault Ste. Marie Tribe of
Chippewa Indians............................................... 73
Prepared statement with attachments.......................... 75
Sherwood, Hon. Richard, Chairman, Spokane Tribe of Indians....... 13
Prepared statement with attachments.......................... 14
Venne, Hon. Carl, Chairman, Crow Nation.......................... 3
Prepared statement........................................... 4
Appendix
Supplementary letters for the record............................. 125
S. 1080, H.R. 2120, S. 2494, H.R. 2963, AND S. 531
----------
Thursday, May 15, 2008
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
562, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. The Committee will come to order.
Good morning, and welcome to the Indian Affairs Committee
hearing on five bills dealing with various land issues on
specific Indian tribes. These issues are not new; most of the
bills were introduced in prior Congresses. So we wanted to do a
hearing this morning so that we might proceed with the
legislation.
We want to learn the views of all the interested parties on
this legislation. Today the Committee will hear views on five
bills. First is S. 2494, the Spokane Tribe of Indians Grand
Coulee Dam Equitable Compensation Settlement Act. This bill
would provide compensation to the Spokane Tribe for the use of
tribal lands to generate hydroelectric power by the Grand
Coulee Dam.
S. 1080, the Crow Tribe Land Restoration Act, this bill
would provide the Crow Tribe with the tools to address the
problem of land fractionation within the reservation.
S. 2963 is a bill to transfer certain lands to the Pechanga
Band of Mission Indians.
S. 2120 is a bill that would direct the Secretary of the
Interior to proclaim certain lands of the Sault Ste. Marie
Tribe as part of the Tribe's reservation.
S. 531 is a bill to repeal the Bennett Freeze provision in
the Navajo-Hopi Lands Settlement Act.
Today we will hear the views of tribes affected by these
bills as well as the views of the Department of Interior. I
encourage any other interested parties who are not on the
witness list to submit written comments to the Committee. The
hearing record will remain open for 14 days from today's date
for those submissions.
With that, I welcome the witnesses. I know the tribal
leaders have traveled far to be with us today. We greatly
appreciate your willingness to testify. We have a rather full
agenda today, so I ask that you limit your oral testimony to
five minutes. Your entire written statement will be made a part
of the permanent record.
I would note that the Senate will begin a series of votes
at 11 o'clock, in an hour and a half, and I expect the
Committee will be done with its business by about that time.
Again, I want to welcome all of you here. The first panel
includes Mr. Jerry Gidner, Director of the Bureau of Indian
Affairs, United States Department of the Interior. Mr. Gidner,
welcome. You may proceed.
STATEMENT OF JERRY GIDNER, DIRECTOR, BUREAU OF INDIAN AFFAIRS,
U.S. DEPARTMENT OF THE INTERIOR
Mr. Gidner. Good morning, Chairman Dorgan, Vice Chairman
Murkowski, members of the Committee. Because some of the tribal
leaders need to leave to catch a plane soon, I am going to
testify first about the bills regarding Spokane and Crow, so
that those chairmen can leave who need to.
Regarding S. 2494, to provide equitable compensation to the
Spokane regarding Grand Coulee Dam, the Department opposes this
bill. We have worked with the Spokane Tribe over several years
on this issue and believe that negotiations to correct several
serious issues should continue.
We have several concerns with the bill. The first is that
the bill as written envisions the use of appropriated funds to
pay the tribe and we have not budgeted for the use of those
funds. It also requires the transfer of land to the Spokane
Tribe, which was not something that occurred in a similar claim
that was settled for the Colville Tribe.
But maybe more importantly, we don't believe the Spokane
Tribe has brought forth a legal claim that would justify a
settlement. So we do not believe the legislation is currently
justified as a settlement of a claim that we believe does not
exist at this time.
If there is a transfer of land, we believe it should not
happen until there is an agreement between the tribe and the
Government regarding the continued management of the Grand
Coulee Dam, Lake Roosevelt and the Columbia Basin project. We
believe that those issues should be resolved before any
transfer of land occurs.
Turning to the Crow Bill, the Department supports the goals
of this bill and supports the general idea of how it would be
done, essentially loaned to the Tribe to purchase fractionated
land and then repay the Government. We have concerns about the
exact mechanism and timing set forth in the bill, so we cannot
support it at this time. We would like to continue working with
the Committee and the Tribe on resolving those mechanisms to
satisfy the concerns.
With that, I will just conclude my testimony on those two
bills.
The Chairman. Thank you, Mr. Gidner. We will call you back
when the two witnesses who have to leave, leave, Mr. Venne and
Mr. Sherwood, because of travel arrangement and airplane
flights.
I want to ask Mr. Venne, you have heard the testimony of
Mr. Gidner, you might wish to respond to that. I will ask you
to go first, but let me ask Senator Tester to provide a proper
introduction. Mr. Venne, you are becoming a fixture here. I
believe you have testified a number of times before this
Committee. We welcome you today. Senator Tester, would you like
to introduce Mr. Venne?
Senator Tester. Yes, I would consider it a great honor.
Chairman Venne is Chairman of the Crow Tribe in the
southern part of the State of Montana, the largest land mass,
reservation in Montana. He is an individual who has shown great
leadership to the Crow People for a good number of years now. I
met Carl when I was in the State Senate. I think he is a man of
great vision and common sense. So when Carl talks to me about
bills such as the Crow Land Restoration Act, with the kind of
passion that he has for that, it makes me sit up and take
notice.
With that, Carl, it is very good to have you here. I know
you are a very busy man and I really appreciate you taking time
out of your schedule to come to Washington, D.C. Thank you.
The Chairman. Chairman Venne, let me thank you for being a
gracious host when I visited your reservation, as well. It was
a pleasure to do so. You may proceed.
STATEMENT OF HON. CARL VENNE, CHAIRMAN, CROW NATION
Mr. Venne. Good morning. My name is Carl Venne. I have
served as the Chairman of the Crow Nation since 2002.
On behalf of the Crow Nation, I want to thank Chairman
Dorgan and the members of the Senate Committee on Indian
Affairs for holding this hearing on S. 1080, the Crow Tribal
Land Restoration Act. I would also like to thank Senator Max
Baucus and Senator Jon Tester for their sponsorship of this
important bill.
S. 1080 directly addresses the serious problems of the loss
of our homelands through fractionation, allotment and tax
foreclosure. Furthermore, the Crow Nation land base remains at
risk with the potential loss of as much as a half a million
acres or more. The underlying cause of our land base problems
is derived from the Federal policy of allotment, which deleted
the Indian land base nationwide by about two-thirds from 1887
to 1934, from 138 million to 48 million acres. Over a 70-year
period, Crow territory was reduced by 92 percent to its current
2.2 million acres.
How this all came about was the Crow Tribe is the only
tribe who settled the Cobell case. We were in negotiations with
the Department of Justice. I think the biggest problem that
Interior is facing and it is costing them more is the
fractionation problem in Indian Country. Ten percent of all
fractionated lands in these United States is on the Crow
Reservation.
For the last three years I have been working with Jim Cason
and Abe Haskill to come up with this bill. I can respond to
Interior today by saying, this bill, we sat down and worked it
out with Interior before. To object to it now, I don't
understand that. It is just alone to the Tribe in the first
place.
Let me give you an example of how poor my Tribe is. We have
a 47 percent unemployment rate. We are the fourth poorest
county in this Nation. And Interior, it is costing them more
and more and more to take care of lands on reservation. So when
I sat down with Interior, it was to solve this problem. Why is
there a Cobell case today? It is because of this problem,
because of poor management by Interior itself. I strongly
believe that the Crow Tribe can manage our own lands for
ourselves. I have done that. For the last four years, Interior
has leased tribal lands, they have received about $4 million a
year. I decided, no, I am going to do it. Today we get over $10
million a year because of the Tribe managing its own lands.
From $1.65 an acre to $55 an acre, that is the difference.
That is why I want to, I need your help to do something like
this, to retain our lands. It is so important to preserve my
Tribe, my people. This Nation preserves wild horses in the
Pryor Mountains. I think as we are the First People of these
United States, we need to protect our homeland, to secure the
homeland for the future of our kids, our grandkids and them
that are not born yet. That is how important it is to my Tribe.
It is just asking for a loan to purchase these lands. To me
it is fairly simple. But how important is it? You know, God
doesn't make any more land. I want to keep ours. I want to
increase it.
Today, $50 million to $60 million is derived from the farm
land that we have. If I had $60 million to $50 million today
and I owned these lands, I wouldn't need to be coming to
Washington, D.C. and asking for money. We as a tribe would
become self-sufficient. That is our goal; to become self-
sufficient, for us to manage it ourselves and not the Federal
Government to manage our lands. Give me a chance to make my own
mistakes. Give me a chance to reap the benefits of these lands.
We as a tribe have given and given and given our lands. Now
I want that to stop for my tribe.
Thank you, Senator.
[The prepared statement of Mr. Venne follows:]
Prepared Statement of Hon. Carl Venne, Chairman, Crow Nation
I. Introduction
Good morning. My name is Carl Venne and I have served as the
Chairman of the Crow Nation since the year 2002. On behalf of the Crow
Nation (Apsaalooke), I want to thank Chairman Dorgan and the members of
the Senate Committee on Indian Affairs for holding this Hearing on S.
1080, the Crow Tribe Land Restoration Act. I would also like to thank
Senators Max Baucus and Jon Tester for their sponsorship of this
important bill.
S. 1080 directly addresses the serious problems of the loss of our
homelands through fractionation, allotment and tax foreclosures.
Furthermore, the Crow Nation land base remains at risk, with the
potential loss of as much as a half a million or more acres in the near
future. The underlying cause of our land base problems is derived from
the federal policy of allotment, which depleted the Indian land base
nationwide by about two thirds from 1887 to 1934 (from 138 to 48
million acres). Over a 70-year period, Crow territory was reduced by 92
percent to its current 2.2 million acre area.
Because of allotment and federal probate of Indian property (with
many Indians dying without wills), the phenomenon of fractionated land
ownership arose--where several (sometimes hundreds of) owners might
have varying interests in a single parcel. Similarly, allotment,
fractionation and the loss of the tribal land base collectively
resulted in checkerboard ownership of reservation lands, giving rise to
overlapping governmental authority in Indian country (federal, state,
tribal and local). Consequently, tribes with heavily allotted lands are
faced with a situation where they must spend valuable resources trying
to protect their remaining lands.
On the other hand, other individuals (non-Indian) owning lands
within the reservation (and almost everywhere outside of Indian
country) have a relatively easy time protecting and making use of the
land they own. Selling land to outsiders for less than its value
further reduces the land base and the options for tribal citizens, and
federal attempts to remediate these problems have been unsuccessful.
Importantly, then, S. 1080 provides a mechanism by which the Crow
Nation can repurchase significant lands and interests in land and to
benefit once again from the economic potential of these lands, as was
the intention of their being originally set aside for the Crow Nation
and its citizens.
II. Tribal Land Base, Marshall Trilogy and Problems
Overview
Nothing is more important to Indian people than their land. Having
a protected land base, active and healthy citizens, and defined
political boundaries is essential to a tribe's sovereignty and
existence as a government. When Chief Justice John Marshall and the
U.S. Supreme Court decided the early cases and controversies that
provided the foundation of federal Indian law, he reflected that even
under a doctrine of conquest and incorporation, where possible,
``humanity demands, and a wise policy requires, that the rights of the
conquered to property should remain unimpaired; that the new subjects
should be governed as equitably as the old, and that confidence in
their security should gradually banish the painful sense of being
separated from their ancient connexions, and united by force to
strangers.''
Even where Europeans saw Indians as mere occupants of their lands,
they were to be protected in that occupancy. A close reading of the
Marshall Trilogy, the foundational Indian law cases, reveals that the
U.S. Supreme Court would have supported a more complete view of
property rights of tribes when they settled peacefully and allied with
the United States, as did the Crow Nation from its earliest contacts.
Moreover, two important but less often cited U.S. Supreme Court
decisions have recognized and declared that ``Indian lands are as
sacred as the fee simple of whites.'' See Mitchel v. U.S., 34 U.S. 711
(1835) (holding that the United States was obligated to respect
existing Seminole property rights when it gained possession of
Florida). Similarly, in U.S. v. Shoshone Tribes of Wind River
Reservation in Wyoming, 304 U.S. 111 (1938), the Court found that ``the
tribe's right of occupancy was incapable of alienation or of being held
otherwise than in common, that right is as sacred and as securely
safeguarded as if fee simple title,'' and that the beneficial use for
such rights as minerals and timber was vested in the Tribe and not in
the United States.
Until 1970, the era of self-determination, federal Indian policy
decimated the land base and the subsistence possibilities of Indian
tribes and their citizens. During the reservation era (1830s to 1880s),
from the idea of Indian Territory (Oklahoma today) to other strategies
of containment, the United States made treaties with Indian nations
that asked them to concede vast sections of their homelands in return
for specific payments and obligations on the part of the United States.
Importantly, those agreements almost universally contained a guarantee
of the protected use and enjoyment of the remaining reservation lands.
After the reservation era, federal Indian policy shifted to
allotment--breaking up the tribal land base by allotting smaller
subsections of tribal lands to individual Indians. The overarching
policy was to break Indians from their culture, dismantle tribal
governments, and assimilate Indians into mainstream American culture.
The allotment policy was declared by Congress in the General Allotment
Act (Dawes Allotment and Severalty Act) of 1887. However, hundreds of
specific allotment acts were passed by Congress over the subsequent
forty years that specifically applied to particular reservations. One
of these specific pieces of legislation was the 1920 Crow Allotment
Act.
Even when passed, the Dawes Act was controversial. The motivation
behind the policy came from the confluence of western settler
colonialism and white northern liberal progressivism, a powerful
phenomenon described by President Theodore Roosevelt in his 1901 State
of the Union Address as a ``mighty pulverizing engine to break up the
tribal mass''. One of the most vocal opponents of the allotment policy
was George W. Manypenny, the Commissioner of Indian Affairs who was
responsible for early allotments as part of the many treaties he
negotiated with Indian tribes. Arguing against allotment as a federal
policy, he assessed his earlier work: ``Had I known then, as I know
now, what would result from those treaties, I would be compelled to
admit that I had committed a high crime.''
By 1928, the Meriam Report declared the federal allotment policy to
be one of the most disastrous federal policies of all time. During
discussions leading up to the Indian Reorganization Act of 1934, one
congressman explained the fractionating effects of allotment in this
fashion:
``It is in the case of the inherited allotments, however, that
the administrative costs become incredible. . .. On allotted
reservations, numerous cases exist where the shares of each
individual heir from lease money may be 1 cent a month. Or one
heir may own minute fractional shares in 30 or 40 different
allotments. The cost of leasing, bookkeeping, and distributing
the proceeds in many cases far exceeds the total income. The
Indians and the Indian Service personnel are thus trapped in a
meaningless system of minute partition in which all thought of
the possible use of land to satisfy human needs is lost in a
mathematical haze of bookkeeping.'' 78 Cong.Rec. 11728 (1934),
cited in Hodel v. Irving, 481 U.S. 704 (U.S.S.D. 1987).
In 1934, Congress expressly repudiated the allotment policy with
passage of the Indian Reorganization Act. Despite this action by
Congress, the current U.S. Supreme Court repeatedly cites allotment as
the source for Congressional intent to justify further erosion of
tribal governance, and simultaneous enhancement of state and local
authority, over the remaining reservation land base.
Today, we have to live with the detrimental impacts of poor
decisions of previous federal policymakers. First, decisions were made
to remove the Indians from their homelands in the east and place them
in confined areas in the northern and southern Midwest. Second, federal
policymakers decided to confine Indian tribes to certain reservation
lands and repeatedly sought land cessions to allow for non-Indian
settlement. Third, Congress decided to break up the remaining land base
with allotment. Finally, Congress terminated its relationship with over
100 Indian tribes and simply subjected their remaining assets to state
and local control, with a less than fair market value payment.
Fractionation
Throughout Indian country, land fractionation has become a problem
of unimaginable proportions--touching upon almost every area related to
land within the reservation. One serious consequence of fractionation
is that the federal government's trust responsibility toward Indian
people has been let to lapse. Lease payments on trust lands are paid
into federal accounts (Individual Indian Money Accounts) of individual
tribal citizens, under the administration of the United States. In
Cobell, a primary issue is centered upon the loss and other
mismanagement of these fractionated interests, funds, and accounts. In
some cases, some tribal citizens have seen their interests disappear
altogether while under the care of those who are supposed to protect
them.
Federal law defines highly fractionated land as land for which a
single parcel has 50 or more owners, with no single owner owning more
than 10 percent of that land, or land that has 100 or more co-owners of
undivided interests. 25 U.S.C. Sec. 1201. For instance, imagine that
you owned a piece of land with 50 or more other people, some of whom
you did not know and others who were very closely related to you. Only
when you place yourself within this position can you begin to picture
how difficult every transaction is under such circumstances and you can
feel a small sense of what fractionation has done. At any moment in
time, it is likely that some of those fractionated interests would be
in the process of being probated, further reducing any chance of
economic viability.
Another example also demonstrates serious practical problems with
land in Indian country. A common issue in land ownership on Indian
reservations is that someone owns a house that is on a home site on a
larger piece of land (e.g., two acres of land within a hundred and
sixty acres of land). Even if the home has been built in an agreed upon
place, it is possible that the land belongs to dozens of other people.
If the home's ownership follows the land, as is often legally the case,
then the question of who might inherit that home is an extremely
complex one. A piece of land that might support eighty home sites may
have none because financing is unavailable under such circumstances and
the puzzle of ownership cannot be solved.
Similarly, what if this parcel of land is completely surrounded by
land owned by other individuals and some of those owners want to lease
it to the neighboring land owners to farm? What if some of the owners
want to allow an energy company to purchase a right-of-way for a
pipeline or electric line across their property? Some of the shares
involved are worth fractions of a penny, and yet those owners have
rights in the lands. What if you needed the agreement of 30 other co-
owners, and the approval of a federal agency as well, to conduct any
business with regard to your land? This regime is not tribal or
communal ownership but a chimera created by federal policy.
In 1983, Congress passed the Indian Land Consolidation Act (ILCA)
to address fractionation. Under the ILCA, tribes could work with the
approval of the Secretary of the Interior to eliminate fractional
interests and consolidate tribal landholdings. In two later cases,
various provisions of the ILCA that would appropriate small interests
without owner consent were struck down as unconstitutional and those
provisions were later amended by Congress. In sum, the continuing
onslaught on tribal lands represents the fundamental betrayal of
federal responsibility toward the first Americans--Indian tribes and
their citizens--and yet there has been little and ineffective response
to the concerns of the large land based tribes that suffer the most
from fractionation issues.
III. History of the Crow Indian Reservation
Even though fractionation is a national problem, Indian nations
have different histories and unique experiences. Many Eastern tribes
were dispossessed or lost their lands well before the Reservation Era,
while other tribes were terminated in the 1950s and 1960s and had (some
continuing) to seek federal recognition and restoration of their lands.
This is one reason the Indian Land Consolidation Act has not had much
success--one size definitely does not fit all. Some Indian nations with
a relatively large land base were not allotted; while others have had
their whole reservations broken into allotments. For this reason,
federal legislation must be tailored to individual tribes or small
groups of tribes.
Treaties and Allotment
After the Ft. Laramie Treaty of May 7, 1868, wherein the Crow
Nation reserved 8 million acres out of 38 million acres designated as
its lands in an earlier treaty in 1851, a number of acts provided for
the allotment of Crow lands. Those arguing for the allotment and
opening of the Crow Indian Reservation to outsiders in the nineteenth
and twentieth centuries performed a grotesque kind of algebra. They
determined the needs of individual tribal members and the best way to
make the Reservation's most valuable lands into so-called surplus
lands, which were often sold to outsiders.
In 1919, prior to the 1920 Allotment Act, there were already 2,453
allotments, consisting of 482,584 acres. In discussions leading up to
the 1920 Crow Allotment Act, Crow representatives repeatedly stressed
their desire to keep and protect their lands and to make their own
decisions. Therefore, as part of the 1920 Act, Congress expressly
promised to limit other outside interests from swallowing up Crow land.
In Section 2 of the 1920 Act, the Crow obtained a provision that
limited outsiders from buying large sections of Crow land.
According to this provision, the Secretary of the Interior was not
to approve a conveyance of land to a person, company or corporation who
already owned at least 640 acres of agricultural or 1,280 acres of
grazing land within the Crow Reservation. Further, the Secretary of the
Interior was not to approve a conveyance of land to a person, company
or corporation that, with the conveyance, would own more than 1,280
acres of agricultural or 1,920 acres of grazing land. A conveyance of
Crow land exceeding these restrictions was considered void and the
grantee was guilty of a misdemeanor, punishable by a $5,000 fine and/or
6 months in jail.
Since passage of the 1920 Act, the Crow Nation's federal trustees
failed to enforce Section 2 of the statute and enforcement continues to
be non-existent. Today, approximately one third of the acreage of the
Reservation is owned in violation of the 1920 Allotment Act. By 1935,
there were 5,507 allotments, consisting of 2,054,055 acres (218,136
acres were alienated by 1935). Eventually all but the sections of the
Pryor and Bighorn Mountains on the Reservation were allotted, a total
of over 2 million acres by 1935 in a reservation that had been reduced
by cession to approximately 2.2 million acres. Approximately 700,000
acres of the Crow Reservation, or almost one third of the land mass of
the Reservation, are presently owned by non-Indians in violation of
Section 2 of the 1920 Crow Allotment Act.
The Crow Nation has sought, through a number of means, to have its
rights enforced but justice has not been served. In the most important
case on Crow allotment, the Crow Nation sought relief against companies
that owned large sections of land (45,000 acres and 140,000 acres,
respectively). In Crow Tribe of Indians v. Campbell Farming Corp., 31
F.3d 768 (9th Cir. 1994), the Ninth Circuit Court of Appeals held that
the 1920 Crow Allotment Act did not afford the Tribe a cause of action;
the Supreme Court denied certiorari in 1995. All of these lands still
have titles clouded by their Section 2 status, and their situation has
become more complicated over time.
Needless to say, failed federal policies and statutes that
eviscerated the land base of the Crow Indian Reservation in this matter
are historic and ongoing violations of the treaty relationship between
the Crow Nation and the United States. Moreover, on an individual and
collective group basis, even as Indians were being criticized for not
making the most of their agricultural lands, their opportunity to do so
was being taken from them along with the lands themselves. Perhaps the
non-Indian public believed that Crow Indians could not farm; reality,
however, directly contradicted the public's misperception.
Livestock and Agriculture
As J.D. Pearson found in her work on building reservation
economies, already in 1886, Agent Henry Williamson reported that
livestock was providing most of the income for the Crow and that they
owned more than 1,900 head of cattle. Early in the twentieth century,
federal officials worked to break up successful community gardens at
Crow because they preferred individual farmers. In 1900, with
substantial portions of the Big Horn irrigation ditch dug by Crow
workers, Crow farmers milled almost half a million pounds of flour as
well as wheat, oats, and hay to feed the reservation. As the irrigation
system expanded, however, Crows found themselves out of work as,
despite promises of tribal preference in employment on the irrigation
projects, both the jobs and the resources that went with them were
offered to others.
As with other tribes early in the twentieth century, Crow citizens
made successful efforts at agricultural pursuits. Reports of the
Secretary of the Interior for the Fiscal Year Ending June 15, 1915,
showed that 69.7 percent of the able men of Crow were farmers and
ranchers, 379 men total. By 1916, the Crow Nation had the largest horse
herd in the world and a cattle herd of over 30,000 head. The Crow
Nation was already agriculturally self-sufficient (the professed
federal goal of allotment) before Congress mandated the 1920 Crow
Allotment Act. Thus, Crow allotment actually undermined Crow self-
sufficiency within their own lands.
Competency and Leasing Crow Lands
Leasing is another area in which allotment and fractionation have
added to problems Crow citizens must overcome to benefit from their own
lands. Lands held in trust for individual Indians often earn money for
their owners by being leased to others for grazing or agricultural use,
a practice subject to extreme abuse through the years. In their efforts
to assert some control over their own lands, Crow representatives
fought to get statutes passed that affirmed the right of individual
Indian landowners to approve their own lease rates. A 1926 amendment to
the 1920 Crow Allotment act allowed ``competent'' tribal citizens to
make their leases for five year periods without agency approval.
Several more amendments were passed because of lessee abuse--e.g., some
lessees would provide small future payments to impoverished landowners
to control land for increasingly extended periods of time, effectively
gaining the land for themselves for almost nothing.
In 1947, the Indian competency provisions extended from the
original allottees to include their heirs. At this time, on the eve of
the federal termination era, tribal representatives and congressional
advocates had to fight once more to prevent the Crow Reservation from
being taken out of trust altogether. The final language affirmed the
right of individual competent Crow Indians to approve their own leases.
Yet today, fractionation has perverted this intent because the common
definition of a ``competent'' lease at Crow is one having fewer than
five owners, and the leases for lands with more than five owners must
still be approved by the BIA. The overall control of the leasing of
Crow lands rests not with the Crow Nation, its citizens, or even the
BIA, but rather with outside leasing companies that continue to
dominate the business.
Important Example of Current Problems with Leasing
The Crow competent lease acts were intended to help Crows but
instead the acts appear to have helped non-Indian residents of the Crow
Reservation. One especially egregious example (the case is still
ongoing) will illustrate fundamental problems with leasing individual
Crow lands. Our Chief Legal Counsel, Donald Laverdure, is by definition
a Crow competent landowner (only he and his sister, both enrolled Crow
citizens, own a 320 acre allotment) and can therefore lease his land
without BIA approval. Over 5 years ago, Mr. Laverdure sought to
renegotiate his competent lease with a third party leasing agent (who
represents a consortium of farm families and corporations against
individual Crow Indians) from 1950s rates to modern lease rates.
The leasing agent claimed that the lessee could not afford to
increase rates and simply sought to renew the 50-year old rates. After
repeated attempts to negotiate, Mr. Laverdure decided not renew his
lease and instead applied to the local Hardin office of the U.S.
Department of Agriculture to become eligible to receive drought
assistance grants and crop rotation grants (he had decided to let the
land lay idle because of overgrazing and lack of crop rotation and the
potential grants would be the equivalent of one-half of past lease
rentals from his former lessee). At a meeting, Mr. Laverdure was
informed by a local USDA employee and her supervisor that his competent
Crow Indian land had been leased by the BIA without his notice or
consent.
Upon investigation, Laverdure found that one of the USDA employees
was possibly related, by marriage, to the office manager of the leasing
company. In addition, Laverdure discovered that the acting BIA
superintendent, Mrs. Davey Jean Stewart, had exercised unilateral
authority and granted an office lease of his own Crow competent
allotment to the existing lessee, without his notice or permission.
Undoubtedly, this action violates federal law--the Crow competent
leasing statutes and federal regulations. Even though Laverdure pursued
administrative relief within the BIA for several years, he did not
receive a reply, written or verbal, until 2 years after the office
lease had been granted in violation of federal law.
Laverdure received a written reply from Mrs. Stewart stating that
she was exercising her BIA trust duties (on behalf of the entire trust
land area, not just the specific allotment at issue) in renewing the
50-year old lease rates to the existing lessees. She said that her
trust duties demanded that she consider all interests, farming and
agricultural, and therefore could not follow Laverdure's own wishes
with respect to his own land. Mr. Laverdure and his sister are still
pursuing administrative and legal remedies after 5 years, and still
appear to have no relief in sight.
Sadly, Laverdure's situation is not unique or isolated. I have been
informed by several other individual Crow Indians that they have faced
similar problems. This is an independent reason why my administration
strongly feels that this Bill, S. 1080, would go a long way toward
correcting these injustices (Crow Nation would take over administrative
duties of Crow land in lieu of the BIA). As the Crow Nation purchases
fractionated interests and Section 2 lands and regulates Crow leases,
it will restore control and individual autonomy over lands belonging to
the Tribe and its citizens.
Fractionation and Probate
In generations of restricted ownership, the land interests of
individual Crows have further fractionated until the Crow Reservation
is the third most fractionated reservation in the nation. Recent
statistics show 91 tracts at Crow that have over two hundred owners, as
well as an overall average of 42 owners per tract. This high degree of
fractionation reduces the value of the lands outright, makes effective
use by the owners impossible, especially frustrates the interests of
minority owners, and results in prohibitive administrative costs and
serious risks of injustice for any transaction.
While Crow was approved for a model project under the Indian Land
Consolidation Act, progress has been very slow, resulting in the
purchase of only a few hundred interests out of hundreds of thousands.
The pilot program demonstrated a willingness among nearly all
individual owners to sell their fractionated interests, but did not
make significant progress toward consolidating the interests under
tribal ownership.
Fractionation concerns have also dominated probate reforms under
the American Indian Probate Reform Act. In the early stages of these
reforms, Crow and other tribes have been faced with additional burdens:
(i) communicating the constant changes in law, not including tribal
probate codes because Interior had not approved a model code; and (ii)
providing unfunded estate planning assistance to individual Crows. The
latter burden has become especially important because the Bureau of
Indian Affairs simply stopped providing estate planning assistance. In
addition, the Department of Interior has been ineffective in trying to
overcome huge deficiencies in probate backlogs because many files are
missing or out of date and the interests at issue are often
fractionated.
Cumulative Impact on Crow Reservation Land Ownership
Today, the Crow Reservation encompasses 2,266,271 acres of lands
within its exterior boundaries. 534,000 acres are owned by the Tribe in
trust. 1,038,000 acres are individually owned trust lands. 700,000
acres are owned in fee by non-Indians. As recognized by the U.S.
Supreme Court in Montana v. U.S., 450 U.S. 544, 548 (1981), the
statistical land ownership resulting from the above described legal
history was: 52 percent Crow allotments; 17 percent Crow Nation trust
land; 28 percent non-Indian fee land; 2 percent State of Montana fee
land; and 1 percent federal government land.
According to more recent Bureau of Land Management Reports, the
land statistics have shifted slightly: 45 percent Crow allotments; 20
percent Crow Nation trust land; and 35 percent non-Indian fee land. In
sum, the pattern of surface ownership generally is ``checkerboard''
with interspersed Crow Nation trust and fee lands, Crow allotments and
non-Indian fee lands. The statistics show limited success of the Crow
Nation in reacquiring lost lands, but the reality is a much larger
pattern of continued land loss.
Jurisdiction and Modern Problems
Allotment and the subsequent transfer of many parcels into fee
lands, as well as the seizure of reservation lands for non-Indian
homesteads, has created the infamous ``checkerboard'' pattern of
criminal and civil jurisdiction. Outside of reservation boundaries,
different parcels of land are owned by different owners; yet those
owners do not escape the jurisdiction of the geographic sovereign. On
reservations where the pattern of ownership is now almost randomly
distributed between trust and fee parcels, tribal jurisdiction has been
constantly intruded upon in such a fashion as to make tribal governance
over the reservation almost impossible.
Tribes are frustrated in their ability to zone reservation lands,
to assess taxes to fund government programs and services, to enforce
their own laws, and even to provide public safety. The definition of
``Indian Country'' in 18 U.S.C. 1151 provides a clear definition that
includes rights-of-way and allotments even after they have passed into
fee, yet this statute is frequently ignored.
This checkerboard problem has interfered with Crow's ability to
govern its own reservation in a myriad of ways. In perhaps the most
problematic of all Indian law cases, Montana v. U.S., 450 U.S. 544
(1981), the Tribe's attempts to regulate fishing on its own reservation
were met with well-orchestrated efforts from outsiders to limit tribal
sovereignty. Although the Supreme Court provided exceptions to its
overall rule that Tribes do not have jurisdiction over non-Indians on
fee lands, it is the general rule that is remembered and the exceptions
have been interpreted so narrowly as to be almost impossible to meet.
For example, in Atkinson Trading Co. v. Shirley, 532 U.S. 645
(2001), the Navajo Nation's ability to assess a hotel occupancy tax on
a non-Indian hotel and guests within its reservation boundaries was
struck down under the general rule in Montana. Similarly, in Big Horn
County Elec. Co-op., Inc. v. Adams, 219 F. 3d 944 (9th Cir. 2000), the
Ninth Circuit Court of Appeals held that the Crow Tribe was not
justified in imposing a 3 percent ad valorem tax on rights-of-way used
by an electric utility for transmission and distribution (the majority
of consumers are Crow Indians). Only in Indian country do rights-of-way
escape the jurisdiction of the geographic sovereign.
Similarly, in Montana v. Crow Tribe of Indians, 523 U.S. 696
(1998), a case in the courts for two decades that dealt with the
consequences of double taxation, state and tribal, on the Crow Tribe's
own coal from its own reservation, the U.S. Supreme Court struck down
most of the relief sought by the Tribe, which simply asked for its coal
severance and gross proceed taxes (which the Department of Interior had
erroneously barred from several years) that were improperly paid to the
State of Montana. When the Crow Tribe tried to assess a resort tax on
businesses within the Crow Reservation, that tax was struck down even
in the bankruptcy proceeding of one of those businesses because it was
operated by a nonmember on fee land. In re Haines, 245 B.R. 401 (D.
Mont., 2000).
Rather than start from a position that an Indian Nation's control
over its own Reservation is paramount and exceptions to tribal
jurisdiction must be limited, the Supreme Court in recent years has
gone out of its way to protect non-Indian fee ownership and then to
extend the fee context by analogy to rights-of-way and other situations
on the reservation. The Court has even begun to reverse the historic
discussion and to use the evils of checkerboard jurisdiction as an
argument against Indian ownership. This approach shows a clear and
present threat to tribal survival and the need for immediate measures
to protect tribal territory and jurisdiction through consolidation and
land acquisition.
IV. U.S. Senate Bill 1080, Crow Tribe Land Restoration Act
S. 1080 was specifically crafted to address the aforementioned
problems. In the work leading up to a previous version of the bill (S.
1501), we held public meetings to make sure that there was no serious
opposition to the actual provisions of the bill, and that there were no
outstanding budget scoring issues. The bill provides a loan (of up to
$380,000,000) to the Tribe to purchase Reservation lands and interests
in lands from willing sellers. Purchased lands will be kept in trust or
transferred into trust and administered by the Tribe, so that the Tribe
can benefit from the economic potential of these lands. The lands will
be made inalienable, so that the Tribe's land base will remain secure.
Repayments will be made from the earnings of the lands themselves.
Research done when the BIA average payment per acre for fractionated
land was $4.28 an acre, subject to further loss from administrative
costs, shows that as that land approaches consolidated ownership, it
will approach a higher value. Section 2 lands rented at $20.00, almost
more than four times as much. Estimates showed that the likely value of
the fractionated land after purchase by the Tribe would be $7.16 an
acre. At nearly one million acres of fractionated lands, there would be
the potential for three million dollars a year just in additional
revenue to the system from the increased value of the land.
Senate Bill 1080 has a number of significant advantages.
It Reduces Fractionation
The federal government is unable to manage these interests and, in
many cases, has lost track of the funds they generate for holders of
Individual Indian Money accounts (see cause of action and litigation by
plaintiffs in Cobell in case against the federal government).
Administering fractionated land interests is not the most efficient or
useful exercise of the federal government's fiduciary duty to tribes
and individual Indians. It appears that the Act can pay for itself by
simply removing the costs of administering fractionated interests at
the federal level.
It Restores the Crow Nation's Land Base
At least two purposes of setting aside reservation lands for
Indians included the provision of a secure homeland and the possibility
of economic self-sufficiency through agricultural pursuits. Tribal land
provides a home for tribal citizens, a basis for tribal sovereignty,
and a means of earning funds necessary for survival. Where reservation
lands are lost to other owners, tribes have the worst possible
situation--having to watch others benefit from the lands intended for
Indians, while being unable to assert meaningful jurisdiction over
lands within their own reservations. Restoration of the land base has a
whole range of secondary effects that contribute to the health and
welfare of the Crow Nation and its residents.
It Attempts to Solve 1920 Crow Allotment Act, Section 2
Problems
The Crow Nation's Section 2 cause of action was preserved from the
Tribe's settlement of its Norton trust claims. On agreeable terms, S.
1080 could provide a workable solution to the Tribe's outstanding claim
for the lands lost when the United States failed to enforce Section 2.
The bill will save litigation costs, potential damages in this matter,
and clear title to Crow lands.
It Effectuates the Crow Nation's Right of First Refusal
The United States government recognizes the need for tribes to be
able to regain lost lands and to protect and preserve lands passing
from individual citizens. Tribes possess the right of first refusal
when individual tribal citizens wish to sell their trust lands, a trend
that continues due to ongoing hardship and the inability of individual
owners to overcome the historic obstacles placed in the way of their
ownership. At present, the Crow Nation stands to lose hundreds of
thousands of more acres from its reservation unless it is able to
exercise its right of first refusal and keep these lands for the
benefit of the Crow Nation and its citizens. Other potential purchasers
often fight Crow jurisdiction within its own reservation and that
leaves all parties with serious issues concerning overlapping tribal,
federal, state and local government jurisdiction.
The Potential Land Purchases Will Pay for Themselves
Particularly as costs continue to increase, there are some
challenges to repayment. But through repurchase, irrigating more,
keeping land in its current uses or even reclaiming land for
agricultural purposes, the Tribe will be able to add to the earnings of
program lands. We have done extensive research into the costs of
servicing debt for land repurchase and the earning potential of the
land, and are comfortable with the outlook of this program under tribal
management.
Funds earned in excess of what is needed to make loan payments can
nonetheless be used to add to the land base and further pay down the
loans. The bill also provides a necessary five million dollar yearly
appropriation for administrative costs in implementing the project and
undertaking tribal management of the acquired lands.
Additional Costs or Harms Are Insignificant
Although some fee lands may be returned to trust status in a
successful land acquisition program, the collection of state taxes from
these lands is quite minimal and, overall, the Crow Nation provides
more services to Bighorn County than revenue or services it receives
from the County. The services and secondary economic benefits provided
to the County from the Crow Nation's successful use of S. 1080 lands
will provide a net benefit to the County. The Nation will not have to
leverage other resources or use other tribal assets.
All Sales Are Voluntary
Because the Crow Nation's program will be the purchase of interests
from willing sellers, the Nation is not forcing or demanding the return
of ancient homelands.
V. A Federal Legislative Solution for a Specific Problem
Some legislation may work for all tribes, but Indian policy,
geography, and different tribal cultures and histories have left tribes
in different situations. S. 1080 is designed largely to alleviate the
particular consequences of land loss and fractionated ownership within
the Crow Reservation. However, solving land problems at Crow will go a
long way toward solving fractionation and related problems throughout
the United States because one-tenth of the land administered by the
Bureau of Indian Affairs, as trustee for individual Indians, is at
Crow.
When the Crow Nation is able to solve its land problems and repay
the funds loaned under S. 1080, it will be able to use future funds
earned on its lands for its own future needs, thus saving federal
dollars. By lowering federal monies spent in administering fractionated
and other Crow lands, the overall federal responsibility will be
reduced because the Crow Nation and its citizens will become self-
sufficient. As such, BIA land assistance can be concentrated upon
elsewhere in Indian country.
The fact is that Indian tribes have had many different experiences
with allotment and land alienation struck different tribes and regions
differently. Crow has over two million acres of allotted land, second
only to the Oglala Lakota at Pine Ridge. ILCA intended for tribes to
develop individual programs and therefore this Bill, S. 1080, is a
specific legislative effort to accomplish what ILCA has not. Crow's
actual needs based on allotment--both the extent of allotment and
fractionation and the amount of allotted land on the present
Reservation, as well as the other issues addressed in this testimony--
are some of the most severe in the nation. Crow is also unique in the
quality of lands available for repurchase and will be able to continue
agricultural uses and even reclaim lands to make repayment a realistic
option.
The Crow Nation, by itself, had almost twice as much land allotted
as nineteen tribes in Washington combined and almost the same amount in
alienation. In Oklahoma, over nineteen million acres of land were
allotted and most of that total, over sixteen million acres, were
completely alienated from the Tribes. Besides the moral wrongs with
land loss, the GAA (Dawes Act) of 1887 occurred during a period of
federalization and today's effects in Indian country amply demonstrate
the error in trying to create an Indian policy that treated tribes
without respect for their different cultures and histories.
Other Indian nations have their own unique stories, which
constitute in part the government-to-government relationship, and have
needs that must be met on their own. If you look at the recent history
of Indian legislation, you will see that there are many bills that
address the needs of individual tribes on recognition, water, and land
claims, honoring their individual leaders, responding to specific
historical wrongs. Thus, this Bill, S. 1080, may not fit the needs of
the Indian Nations in Oklahoma or Washington, or the Ute Mountain Utes
and Navajos with lands that were not allotted. No single legislative
act could meet the diverse needs of these varied histories.
However, the Crow Nation's unique situation is shaped by its own
people and culture, by the particularities of federal Indian policy and
history, and by the failure of its trustees to enforce such laws as the
Crow competent lease act and Section 2 of the 1920 Crow Allotment Act.
S. 1080 is designed to meet the very specific needs on the Crow Indian
Reservation in the most efficient way possible.
VI. Conclusion
The Crow Tribe has always been an ally of the United States. At one
point in the history the United States, the federal government awarded
more land north of the Yellowstone River to its allies, the Crows, in
appreciation for their support. Despite being a strategic ally (like
some other Indian nations), the federal government changed its mind and
simply took the land away. Further, even though the land of the Little
Bighorn Battlefield was and continues to be within the Crow Indian
Reservation, the Crow Nation continues to be treated as a bystander
with private landowners buying up parcels to preserve and expand the
Battlefield Memorial without any thought or permission provided by the
Crow Nation.
Other individuals that own former Crow Nation land, both on and off
the Crow Reservation, continue to receive annual federal grants and
subsidies--without which they would be unsuccessful at keeping the
land. In contrast, Crow tribal requests to participate in federal
programs are often met with opposition. Users of Battlefield Memorial
site and the Bighorn Canyon Recreation Area often trespass and
recklessly harm Crow tribal lands and the most sacred sites without
respect, and federal agencies refuse to cooperate with our wishes to
protect our homeland and our rights.
It is time for a change. This Bill, S. 1080, is an important step
in the right direction and it will provide a mechanism for the Crow
Nation to right many wrongs. S. 1080 can be a model for other tribes
but only if they believe that they can adapt its central purpose to
fulfill their own particular needs. From our perspective, passage and
implementation of S. 1080 will begin to heal old wounds and restore the
honor that existed in our original, but broken, treaty relationship
between our two nations, the Crow and the United States.
We know that Justice Black was right when he said, ``Great nations,
like great men, should keep their word.'' We have kept our word and we
simply ask that you do the same. S. 1080 is a Bill that has minimal, if
no, risk to the United States but is a Bill that can go a long way
toward restoring the federal promise that exists between our great
nations. Thank you for your attention and I would be happy to answer
any questions.
The Chairman. Chairman Venne, thank you very much. We
appreciate your testimony.
Next we will hear from the Honorable Rick Sherwood,
Chairman of the Spokane Tribe of Indians. Mr. Sherwood, thank
you for being with us.
STATEMENT OF HON. RICHARD SHERWOOD, CHAIRMAN, SPOKANE TRIBE OF
INDIANS
Mr. Sherwood. Thank you, Mr. Chairman and members of the
Committee. My name is Richard Sherwood, I am Chairman of the
Spokane Tribe of Indians.
I very much appreciate the opportunity to appear before the
Senate Committee on Indian Affairs to testify on S. 2494. I
would also like to thank Senator Cantwell and Senator Murray
for the introduction of this bill.
Today I am here on behalf of the Spokane Tribe to ask for
your help, as representatives of the United States of America.
I ask that you act on behalf of the United States to finally
treat the Spokane Tribe fairly and honorably for the injury to
our tribe and reservation caused by the Grand Coulee project.
My testimony today summarizes my written statement for the
record and the critical need for this important legislation. We
will also be providing photographs to show some of the
devastating effects that Grand Coulee Dam operations have on
our reservation.
The Tribe has been struggling since an agreement with the
United States in 1877 to secure the boundaries of the Spokane
Reservation. Our reservation was formed by executive order in
1881, with 155,000 acres. Today we have 143,000 acres held by
individuals and tribal trust property, 91 percent ownership of
the reservation. That shows the importance that the reservation
land has to the Spokane Tribe. In 1877, our ancestors and
leaders of the past fought very, very hard for both the rivers,
the Spokane River and the Columbia River, to be part of our
boundaries. In the 1930s, due to the Grand Coulee project,
those lands were taken away. I think for the ancestors that
fought so hard for that, that is why we are here today. We are
fighting the same fight that they fought in the 1870s, to try
to get back control of those lands.
So when we hear that the Colville settlement didn't have a
land component to it, at the same time, the Spokane Tribe is
looking at 39 percent of what the Colvilles received. That was
the initial thing we brought to the table. So through
negotiations with everybody, everybody came back to the Tribe
and said, you know, 39 percent, that is just too much money, we
have to come up with a solution. So after careful consideration
from today's council and past councils, we decided we would
come up with something creative. We decided that we would go
after land that was rightfully ours to begin with.
So what the Spokane Tribe has done is actually gone with 29
percent of what the Colvilles settled for and added the
original boundaries back, to try to get the original boundaries
back to trust. Then we hear how the Spokane Tribe doesn't have
a legal claim. This may be true, but we have been promised and
promised and promised since the 1930s that the Spokane Tribe
would be taken care of, that we would make this right.
So in 1967, the Spokane Tribe settled its claims. In 1951,
neither the Spokane Tribe nor the Colville Tribe filed claims
on Coulee. The U.S. was negotiating with both tribes.
The Colvilles went to the Indian Claims Commission to amend
and add the Coulee claims in 1975. The Spokane Tribe had no
claim to amend at that point, we settled in 1967.
In the 1994 Colville hearing, the Department of Justice
stated on the record that the Colville Tribe had no legal
claim, only a moral claim. We are in the same situation, minus
the fact that in 1975, w didn't have a claim to amend.
This has had a devastating impact on the Spokane Tribe from
day one when they flooded our boundaries. It has taken the life
away from the Spokane Tribe. We have always been a river
people. To this day, we rely heavily on the river. It has taken
away our salmon, it has taken away our culture, it has taken
away our religion. Everything that the Spokane Tribe stood for
was within that river, and we don't have that today. We will
never get that back. There is no amount of money in this world
that will ever return what we have lost.
I can't stress the importance of what this can do. This
will help with our unmet governmental needs, health care, fire
protection, police protection. So it is not just about the
dollars and cents, it is about trying to make, to right a
wrong. I think it is an important thing to understand that we
have been dealing with this for 80 plus years now. And promise
after promise, and here it is 2008 and I am fighting the same
fight that my ancestors fought, that my great-grandpa sat here
as a chairman and fought. So I ask you today, you have the
opportunity to finally correct that wrong and make it right.
With that, I thank you and appreciate the time you have
given me.
[The prepared statement of Mr. Sherwood follows:]
Prepared Statement of Hon. Richard Sherwood, Chairman, Spokane Tribe of
Indians
Thank you Mr. Chairman and members of the Committee. My name is
Richard Sherwood. I am Chairman of the Spokane Tribe of Indians. I very
much appreciate the opportunity to appear before the Senate Committee
on Indian Affairs to testify on S. 2494. Accompanying me are Gregory
Abrahamson, Vice Chairman of the Tribe, and Howard Funke, our attorney.
They are available for questions.
Summary
I am here today on behalf of the Spokane Tribe to ask for your help
as representatives of the United States of America. I ask that you act
on behalf of the United States to finally treat the Spokane Tribe
fairly and honorably for the injury to our Tribe and Reservation caused
by the Grand Coulee Project. My testimony today summarizes my written
statement for the record and the critical need for this important
legislation. We are also providing photographs for the record which
illustrate some of the annual effects Grand Coulee Dam operations have
on our Reservation. The Spokane Tribe has been struggling to protect
our Reservation since an agreement with the United States in 1877. To
understand this settlement it must be viewed in an historic context. As
is fitting and proper for that struggle spanning one hundred and thirty
(130) years, we have submitted a very lengthy and detailed statement
herein.
Grand Coulee's waters flooded the lands of two adjoining Indian
reservations that held great economic, cultural and spiritual
significance. Ours is one of those reservations. The other is the
Colville Tribes Reservation.
Our life, culture, economy and religion centered around the rivers.
We were river people. We were fishing people. We depended heavily on
the rivers and the historic salmon runs they brought to us. We were
known by our neighboring tribes as the Salmon Eaters. The Spokane
River--which was named after our people--was and is the center of our
world. We called it the ``Path of Life.'' President Rutherford B. Hayes
in 1881 recognized the importance and significance of the rivers by
expressly including the entire adjacent riverbeds of the Spokane and
Columbia Rivers within our Reservation. But the Spokane and Columbia
Rivers are now beneath Grand Coulee's waters. Today our best lands and
fishing sites lie at the bottom of Lake Roosevelt.
The proposed Legislation is designed to end a lengthy chapter in
American history, in which the United States and American citizens
reaped tremendous rewards at the expense of the Spokane Tribe and the
Colville Confederated Tribes. The severe devastation wrought upon both
tribes was unprecedented. And though the effected land areas held by
the Spokane Tribe were roughly only 40 percent of that held by the
Colville Tribes, a portion of the Colville's salmon fishery continues
to reach their Reservation, while the Spokane's was lost entirely.
Additionally, the Spokanes lost forever a prime site on the Spokane
River that it could have developed for hydropower. Ultimately, both
Tribes suffered severely. We are greatly impacted by the operation of
Grand Coulee Dam each and every year.
At the Grand Coulee Dam's infancy, the United States acknowledged
and supported its need to fairly and honorably address the related
losses to be suffered by both the Spokane Tribe as well as the Colville
Tribes. Yet the Colvilles, in 1994, secured a settlement with the
United States, while the Spokane claims are still unresolved. The
United States has all but ignored its trust obligation to the Spokane
Tribe. The legislation represents a final settlement of the Spokane
Tribe's claims, and the following briefly describes the need for the
United States to finally treat the Spokane people fairly and honorably
in resolving this matter.
Historical Context
From time immemorial, the Spokane River has been at the heart of
the Spokane territory.
In 1877, an agreement was negotiated between the United States and
the Spokane to reserve for the Tribe a portion of its aboriginal lands
approximating the boundaries of the present Spokane Indian Reservation.
On January 18, 1881, President Rutherford B. Hayes issued the
relevant Executive Order, and with exacting language, expressly
included the Spokane and Columbia Rivers within the Spokane Indian
Reservation.
Under section 10(e) of the Federal Power Act (16 U.S.C. 803(e)),
when licenses are issued involving tribal land within an Indian
reservation, a reasonable annual charge shall be fixed for the use of
the land, subject to the approval of the Indian tribe having
jurisdiction over the land. Had a state or a private entity developed
the site, the Spokane Tribe would have been entitled to a reasonable
annual charge for the use of its land. The Federal Government is not
subject to licensing under the Federal Power Act.
Numerous statements made by federal officials acknowledged the need
for the Spokane Tribe to receive fair compensation. In one example,
William Zimmerman, Assistant Commissioner of Indian Affairs, wrote:
``the matter of protecting these valuable Indian rights will
receive active attention in connection with applications filed
by the interested parties before the Federal Power Commission
for the power development.'' Letter from William Zimmerman to
Harvey Meyer, Colville Agency Superintendent, dated September
5, 1933.
A letter approved by Secretary Ickes, from Assistant Commissioner
Zimmerman to Dr. Elwood Mead, Commissioner of Reclamation, stated in
connection with the ``rights of the Spokane Indians,'' that the Grand
Coulee project, as proposed:
``shows the cost of installed horsepower to be reasonable and
one that could bear a reasonable annual rental in addition
thereto for the Indians' land and water rights involved.''
Letter from William Zimmerman to Elwood Mead, dated Dec. 5,
1933.
The United States Department of Justice has recognized these
promises as an undertaking of a federal obligation, which promises were
made to both the Colville and Spokane Tribes.
``The government began building the dam in the mid-1930's. A
letter dated December 3, 1933, to the Supervising Engineer
regarding the Grand Coulee and the power interests of the
Tribes, with the approval signature of Secretary of the
Interior Ickes states:
This report should take into consideration the most valuable
purpose to which the Indians' interests could be placed,
including the development of hydro-electric power.
We cannot too strongly impress upon you the importance of this
matter to the Indians and therefore to request that it be given
careful and prompt attention so as to avoid any unnecessary
delay.
Also, a letter dated December 5, 1933, to the Commissioner of
the Bureau of Reclamation and endorsed by Interior Secretary
Ickes, stated that `it is necessary to secure additional data
before we can advise you what would constitute a reasonable
revenue to the Indians for the use of their lands within the
[Grand Coulee] power and reservoir site areas.' And a letter
dated June 4, 1935 from the Commissioner of the Bureau of
Reclamation requested that additional data be secured to
determine `a reasonable revenue to the Indians for the use of
their lands within the power and reservoir site areas.' ''
Statement of Peter R. Steenland, Appellate Section Chief,
Environment and Natural Resources Div., Dept. of Justice (Joint
Hearing on S.2259 before the Subcomm. on Water and Power of the
Comm. on Energy and Natural Resources and the Comm. on Indian
Affairs, S. Hrg. 103-943, Aug. 4, 1994, at 16).
As stated in the testimony of the Assistant Secretary for Indian
Affairs, concerning the 1994 Colville Settlement legislation, approved
in P.L. 103-436: ``Over the next several years the Federal Government
moved ahead with the construction of the Grand Coulee Dam, but somehow
the promise that the Tribe would share in the benefits produced by it
was not fulfilled.''
Pursuant to the Act of June 29, 1940 (16 U.S.C. 835d et seq.), the
Secretary paid to the Spokane Tribe, $4,700. That is the total
compensation paid by the United States to the Spokane Tribe for the use
of our tribal lands for the past seventy-three years.
When the waters behind the Grand Coulee Dam began to rise, the
Spokane people were among the most isolated Indian tribes in the
country. The Tribe's complete reliance on the Spokane and Columbia
River system had remained largely intact since contact with non-
Indians. That, however, would be completely and irreversibly changed
forever. The backwater of the dam, Lake Roosevelt, floods significant
areas of the Tribe's Reservation, including the Columbia and Spokane
boundary rivers within the Reservation. A 1980 Task Force Report to
Congress explains the historical context of the Tribe in relation to
the Grand Coulee Dam.
``The project was first authorized by the Rivers and Harbors
Act of 1935 (49 Stat. 1028, 1039). In spite of the fact that
the Act authorized the project for the purpose, among others,
of `reclamation of public lands and Indian reservations . .
..,' no hydroelectric or reclamation benefits flow to the
Indians. Hardly any were employed at the project site. Indeed,
the Tribes have presented evidence that even unskilled workers
were recruited from non-Indian towns far away. The irrigation
benefits of the project all flowed south. . ..
Furthermore, the 1935 enactment made no provision for the
compensation of the [Spokane and Colville] Tribes. It was not
until the Act of June 29, 1940 (54 Stat. 703)--seven years
after construction had begun--that Congress authorized the
taking of any Colville and Spokane lands . . . Section 2 [of
that Act] required the Secretary to determine the amount to be
paid to the Indians as just and equitable compensation.
Pursuant to this authorization the Secretary condemned
thousands of acres of Indian lands, primarily for purposes of
inundation by the planned reservoir.
Apart from the compensation for those lands, which the Tribes
claim was inadequate, no further benefits or compensation were
paid to the Indians. Nothing was provided for relocation of
those Indians living on the condemned lands; and tribal lands
on the bed of the original Columbia River were not condemned at
all. Worst of all, Grand Coulee Dam destroyed the salmon
fishery from which the Tribes had sustained themselves for
centuries. The salmon run played a central role in the social,
religious and cultural lives of the Tribes. The great majority
of the population of the Tribes lived near the Columbia and its
tributaries, and many were driven from their homes when the
area was flooded. While Interior Department officials were
aware that the fishery would be destroyed, the technology of
the time did not permit construction of a fish ladder of
sufficient height to allow the salmon to bypass towering Grand
Coulee Dam.
The project also resulted in the influx of thousands of non-
Indian workers into the area. Prior to contemplation of the
project very few non-Indians lived in the region. Indeed,
anthropologist Verne F. Ray, who began his field studies in
1928, reports that there were no more than a handful of white
families in the vicinity of the future site of the Grand Coulee
Dam, and that in 1930 the Colville and Spokane were among the
most isolated Indian groups in the United States. Their
aboriginal culture and economy were largely intact up to that
time, little reliance having been placed on white trading
posts. The subsistence economy of the Indians had continued to
focus on the salmon.
Another principal aboriginal pursuit of the Colville and
Spokane Indians involved the gathering of roots and berries on
lands south of the rivers. That activity was largely curtailed
after the construction of the project because of the influx of
non-Indians on to those southern lands and because the river
was widened to such an extent that crossing it became very
difficult. Before the reservoir there were many places where
the river could be forded. Similarly, hunting south of the
river was also curtailed. Thus, the Grand Coulee project had a
devastating effect on their economy and their culture.'' Final
Report, Colville/Spokane Task Force, Directed by the Senate
Committee on Appropriations in its 1976 Report on the Water and
Power Public Works Appropriations Bill, S.Rep.94-505.
(September, 1980).
The salmon runs were entirely and forever lost to the upstream
Spokane Tribe. Further more, there existed on the Spokane River--within
the Spokane Reservation--two prime dam sites the Spokane Tribe could
have used for generating hydro electric power. Like the Spokanes'
salmon runs, these sites were lost forever to Grand Coulee.
In the 1940 Act, Congress also directed the Secretary of the
Interior to ``set aside approximately one-quarter of the entire
reservoir area for the paramount use of the Indians of the Spokane and
Colville Reservations for hunting, fishing, and boating purposes, which
rights shall be subject only to such reasonable regulations as the
Secretary may prescribe for the protection and conservation of fish and
wildlife.'' 16 U.S.C. Sec. 835(d).
In an extraordinary move, the Tribe in December, 1941, sent a
delegation cross-country to meet on the issues with Commissioner John
Collier. Unfortunately, the meeting took place on December 10--just
three days following the bombing of Pearl Harbor. The Commissioner and
his representatives committed to the Tribal delegation that they would
do all they could in aid of the Tribe, but that the national priorities
of war meant that redress would have to wait until its conclusion.
In 1946, the Interior Secretary designated areas within Lake
Roosevelt as ``Indian Zones'' to fulfill the requirements of the 1940
Act's ``paramount use'' provisions in recognition of tribal lands
inundated by Lake Roosevelt. The ``Spokane Indian Zone'' and the
``Colville Indian Zone'' were located generally within the reservations
of those Tribes. The Spokane Zone also extended up the inundated
Spokane River, within the Spokane Reservation, which today is known as
the ``Spokane Arm'' of Lake Roosevelt.
Indian Claims Commission Filings
In 1946, Congress enacted the Indian Claims Commission Act. Act of
August 13, 1946 (60 Stat. 1049). Pursuant to that Act, there was a
five-year statute of limitations to file claims before the Commission
which expired August 13, 1951. It was under the Indian Claims
Commission Act that the Colvilles were able to settle their claims in
1994. And it was due to a quirk of circumstances that the Spokanes were
not.
In 1951, both the Spokane Tribe and the Colville Tribes filed land
claims with the Indian Claims Commission prior to the August 13, 1951
Statute of Limitations deadline. Neither tribe filed claims before the
deadline seeking compensation for the use of their lands for the
production of hydropower at Grand Coulee. Neither tribe understood, nor
were advised that there would be a need to even file such claims. After
all, beginning in the 1930s and then resuming through the 1970s, the
historical and legal record is replete with high level agency
correspondence, Solicitor's Opinions, inter-agency proposals/memoranda,
Congressional findings and directives and on-going negotiations with
the affected Tribes to come to agreements upon the share of revenue
generated by Grand Coulee which should go to the Tribes for the use of
their respective lands. The Tribes had every reason to believe that its
Trustee, the United States, was, although belatedly, going to act in
good faith to provide fair and honorable compensation to the Tribes for
the United States' proportionate use of our Tribal resources for
revenue generated by the Grand Coulee Dam.
The ICC Act imposed a duty on the Bureau of Indian Affairs to
apprize the various tribes of the provisions of the Act and the need to
file claims before the Commission. While the BIA was well aware of the
potential claims of the Spokane Tribe to a portion of the hydropower
revenues generated by Grand Coulee, there is no evidence that the BIA
ever advised the Tribe of such claims. As the Tribe's long-time
attorney explained in 1981:
``The writer was employed in 1955 as the Tribe's first General
Counsel. The tribal leaders of 1951 were still in office. When
asked why they had not filed claims for the building of Grand
Coulee, the destruction of their fishery and loss of their
lands, they were thunderstruck. They had no knowledge at all
that they might have filed such claims. They told the writer
that no one had alerted them to the possibility of such claims.
They did not know that these potential claims might be governed
by the Claims Commission Act. They assumed that their rights
were still alive, and well they may be. The Superintendent had
approached them in about 1949 with the Tri-partite agreement
between the BIA, Bureau of Reclamation, and the National Parks
Service for the establishment of and administration of the
Indian Zones pursuant to the Act of 1940. While he got them to
sign pre-written resolutions approving this agreement [so]
vital to their river and lake rights, not a word was spoken of
the possibility of the tribe filing claims. The deadline of
August 13, 1951 was therefore allowed to pass without the
claims having been filed.'' Memorandum of January 12, 1981 with
Final Report, Colville/Spokane Task Force (September 1980).
Thus, the Spokane Tribe in 1967 settled its ICCA claims, while the
expectation of fair treatment for Grand Coulee's impacts continued.
Ironically, the Spokane Tribe's willingness to resolve its differences
with the United States would later be used as justification for the
United States' refusal to deal fairly and honorably with the Tribe.
Meanwhile, the Colvilles, who had not settled their ICCA claim,
continued that litigation against the United States. In 1975, the
Indian Claims Commission ruled for the first time ever that it had
jurisdiction over ongoing claims as long as they were part of a
continuing wrong which began before the ICCA's enactment and continued
thereafter. Navajo Tribe v. United States, 36 Ind. Cl. Comm. 433, 434-
35 (1975). Over objections by the United States, the Colvilles sought,
and in 1976 obtained, permission from the Commission to amend their
complaint to include for the first time their Grand Coulee claims. With
new life breathed into their claims, the Colvilles pursued litigation
of their amended claims to the Federal Circuit Court of Appeals, which
held that the ICCA's ``fair and honorable dealings'' standard may serve
to defeat the United States' ``navigational servitude'' defense.
Colville Confederated Tribes v. United States, 964 F.2d 1102 (Fed. Cir.
1992). In light of this ruling, the United States negotiated with the
Colvilles to resolve that Tribe's Grand Coulee-related claims.
Unfortunately, however, because the Spokane Tribe in 1967 had acted in
cooperation with the United States to settle its ICCA case, it lacked
the legal leverage to force settlement.
In 1967, the Spokane Tribe settled its ICCA claims case. That was
the very same year that construction of the Grand Coulee Dam third
power plant containing six new generating units began. The next
thirteen years witnessed a flurry of activity by the United States to
address the claims of the tribes to a share of the benefits of the
Grand Coulee Project.
Subsequent Negotiations--Both Tribes
In 1972, the Secretary of the Interior's Task Force began
negotiation with the tribes through multiple policy, legal and
technical committees to address the tribal claims. The ``Secretaries
Task Force'' engaged the tribes on a full range of issues, including
compensation, riverbed ownership and tribal jurisdiction over the
inundated Indian Zones.
In 1974 the Solicitor of the Department of the Interior issued an
Opinion which concluded, among other things, that the Spokane and
Colville Tribes each retained ownership of the lands underlying the
Columbia River and, in the case of the Spokane Tribe, the lands
underlying the Spokane River. The Solicitor found the United States
intent to reserve those riverbeds in the Spokane Tribe clear. The
Opinion suggested that the resource interests of the Tribes were being
utilized in the production of hydroelectric power at Grand Coulee.
In December 1975, the Congress directed the Secretaries of Interior
and the Army to establish a Task Force and to open discussions with the
tribes:
``to determine what, if any, interests the Tribe have in such
production of power at Chief Joseph and Grand Coulee Dams, and
to explore ways in which the Tribe might benefit form any
interest so determined.'' S. Rep, 94-505, Dec. 4, 1975, at 79.
While these high-level negotiations were taking place, construction
of the third power plant at Grand Coulee continued. The first
generating unit of six came into service in 1974.
In May of 1979, following two years of negotiations among federal
agencies and the tribes, the Solicitor for Interior proposed to the
Secretary of Interior a legislative settlement of the claims of the
Colville Tribe and the Spokane Tribe, stating:
``I firmly believe that a settlement in this range is a
realistic and fair way of resolving this controversy. The
representatives of the Departments of Energy and Army who
participated on the Federal Negotiating Task Force concur. It
adequately reflects the relatively weak legal position of the
tribes. (If the tribes could get around the Government's
defenses they conceivably could establish a case for from 15
percent to 25 percent of the power of the Grand Coulee and
Chief Joseph dams.) In addition to the threat of legal
liability to the federal government, there is the undeniable
fact that the Colville and Spokane people have been treated
shabbily throughout the 40-year history of this dispute. To
this day they have received little benefit from these projects
on their lands which totally destroyed their fishery (no fish
ladders were included) and inalterably changed their way of
life. It has been the non-Indian communities and irrigation
districts who have benefited from these projects. Much
reservation land remains desert, while across the river
irrigated non-Indian lands bloom.
I am also hopeful that this is one ``pro-Indian'' bill that the
Washington State congressional delegation will support as a
fair resolution of a sorry chapter of our history. The tribes
have tried recently to cultivate support for such a settlement
proposal among key members of the delegation. My understanding
is that the delegation's concerns have focused on the size of a
settlement award (tribal demands have referred to hundreds of
millions of dollars) and a tribal proposal for allocation of a
firm power supply in the 1980's an allocation which might be
seen as a threat to domestic users in times of shortage.''
Legislative Proposal on Settlement of the Claims of the
Colville and Spokane Tribes, Memorandum of Leo M. Krulitz to
Eliot Cutler, May 7, 1979.
We do not know what happened to this Interior Solicitor proposal to
settle the claims of both tribes. We do know that the sixth and final
unit of the third power plant was completed in 1980. In that same year,
the congressional Task Force completed its work. In spite of
Congresses' direction, rather than determine the tribal interests
involved in Grand Coulee and the benefits they might derive from those
interests, for the first time in nearly 50 years of promises and
negotiations with both tribes, the Task Force asserted legal arguments
which the United States might use to defend against or forestall any
tribal claims for a share of the hydropower generated by or the
revenues derived from the Grand Coulee Project The report concluded the
United States may not be required by law to provide compensation at the
same time that the Project's ability to provide benefits to the United
States and the region was taking a quantum leap.
The third powerhouse alone provides enough electricity to meet the
combined power of the cities of Portland, Oregon and Seattle,
Washington. However, its contribution to the Federal Columbia River
Power System and the inter-connected electric systems serving the
western United States goes far beyond the amount of hydropower that is
generated.
With completion of the third powerhouse, the Grand Coulee Project
was positioned to play a pivotal role in the creation of downstream
hydro power benefits from releases from large Canadian storage
reservoirs. Grand Coulee became the critical link between water storage
facilities in the upper reaches of the Columbia River Basin and
downstream generating assets. Rated at 6,809,000 kilowatts capacity,
the power generating complex at Grand Coulee became the largest
electric plant in the United States, third largest in the world. It now
produces about 21 billion kilowatt hours annually, four times more
electricity than Hoover Dam on the Colorado River, and is the least-
cost power source in the region's resource stack.
In addition to power production, Grand Coulee is the key to
maintaining operating flexibility and, most important, the reliability
of the Federal Columbia River Power System and inter-connected systems.
Without the third power plant in particular, and the Grand Coulee
Project in general, the configuration and operation of the Federal
Columbia River Power System would be very different. The electric
systems serving the Pacific Northwest (and western United States) would
be less efficient, have much higher average system costs and be far
less reliable.
In a sad twist of historical events, two tribes--each feeling the
irreversible pain of Grand Coulee's devastation--found themselves on
separate paths. The Colville Tribes were able to continue their legal
battles with the United States through settlement in the mid-1990s,
while the Spokane Tribe's willingness to settle in the 1960's cost it
substantial legal and political leverage in future dealings with the
United States.
Continuing Recognition of the Tribe's Interests
In 1990, the federal government and the Tribes entered into the
Lake Roosevelt Cooperative Management Agreement, which states that
``[t]he Spokane Tribe shall manage, plan and regulate all activities,
development, and uses that take place within that portion of the
Reservation Zone within the Spokane Reservation in accordance with
applicable provisions of federal and tribal law, and subject to the
statutory authorities of Reclamation . . . to carry out the purposes of
the Columbia Basin Project.''
Litigation over the ownership of the original Spokane Riverbed
resulted in a separate federal court opinion (Washington Water Power v.
F.E.R.C., 775 F.2d 305, 312 n. 5 (D.C. Cir. 1985)), a court order
(Spokane Tribe of Indians v. State of Washington, Washington Water
Power Company and United States of America, No. C-82-753-AAM, Judgment
and Decree Confirming Disclosure and Quieting Title to Property (U.D.
Dist. Ct., E.D. Wash., September 14, 1990)). Separate settlement
agreement (Spokane Tribe of Indians v. Washington Water Power Company,
No. C-82-AAM, Judgment (U.S. Dist. Ct. E.D. Wash., March 3, 1995)) all
of which provide and affirm that the Spokane Tribe holds full equitable
title to the original Spokane Riverbed.
In 1994 Congress passed the Confederated Tribes of the Colville
Reservation Grand Coulee Dam Settlement Act (P.L. 103-436; 108 Stat.
4577, 103d Congress, November 2, 1994) to provide compensation to the
Colville Tribes for the past and future use of reservation land in the
generation of electric power at Grand Coulee Dam.
A. For past use of the Colville Tribes' land, a payment of
$53,000,000.
B. For continued use of the Colville Tribes' land, annual
payments of $15,250,000, adjusted annually based on revenues
from the sale of electric power from the Grand Coulee Dam
project and transmission of that power by the Bonneville Power
Administration.
In 1994 Congress also directed the Bonneville Power Administration,
Department of Interior and the relevant federal agencies, under the
``fair and honorable dealings'' standard, to enter into negotiation
with the Spokane Tribe to address the Tribe's comparable and equitable
claims for the construction and operation of Grand Coulee Dam.
During the hearing on the Colville Settlement bill, the Spokane
Tribe sought an amendment that would have waived the Indian Claims
Commission Act's statute of limitations to enable the Spokane to pursue
its Grand Coulee claims through litigation. In the words of then Tribal
Chairman Warren Seyler, ``We believe it would be unprecedented for
Congress to only provide relief to one tribe and not the other when
both tribes were similarly impacted.'' Hearing Record, Colville Tribes
Grand Coulee Settlement, H.R. 4757, pp. 56-61 (August 2, 1994).
Colville Tribal leaders and the bill's Congressional sponsors asked
the Spokane to withdraw the request for an amendment to waive the
statute of limitations. The Spokane complied, with the understanding
that good faith negotiations to reach a fair and honorable settlement
with the United States would be imminent. As a result, the following
statements were made in a colloquy accompanying the Colville Tribes'
Grand Coulee Settlement legislation. Colloquy to Accompany S. 2259, A
Bill Providing for the Settlement of the Claims of the Confederated
Tribes of the Colville Reservation Concerning Their Contribution to the
Production of Hydropower by the Grand Coulee Dam, and for Other
Purposes.
Senator Bradley stated:
``S. 2259 settles the claims of the Confederated Tribes of the
Colville Reservation, yet the claims of the Spokane Tribe which
are nearly identical in their substance, remain unsettled. The
historic fishing sites and the lands of the two tribes were
inundated by the Grand Coulee Project. It is clear that
hydropower production and water development associated with the
Project were made possible by the contributions of both tribes.
Thus, I believe it is incumbent that the United States address
its obligations under the Federal Power Act to both Tribes.''
Senator Murray stated:
``The settlement of the claims of the Colville Tribes is long
overdue. The claim, first filed by the Colville Tribes over
forty years ago, is based upon the authority the Congress
vested in the Indian Claims Commission, which provided a five-
year period during which Indian tribes could bring their claims
against the United States.
Unfortunately, the Spokane Tribe did not organize its
government in time to participate in the claims process.
The fair and honorable dealings standard established in the
Indian Claims Commission Act should clearly apply to the United
States' conduct and relationship with both the Colville and
Spokane Tribes. I would urge, in the strongest possible terms,
that the Department of the Interior and other relevant federal
agencies enter into negotiations with the Spokane Tribe that
might lead to a fair and equitable settlement of the tribe's
claims.''
Senator Inouye stated:
``I fully support the notion that the United States has a moral
obligation to address the claims of the Spokane Tribe, and I
would be pleased to join you in a letter to Interior Department
Secretary Babbitt urging that negotiations be undertaken by the
Department.''
Senator Bradley added:
``Under the Federal Water Power Act, which is now referred to
as the Federal Power Act, where an Indian Tribe's land
contributes to power production, the licensee must pay an
annual fee to the Indian Tribe which represents the tribe's
contribution to power production. I too, would be pleased to
join Senator Murray and Chairman Inouye in urging the Interior
Department and the Bonneville Power Administration to enter
into negotiations with the Spokane Tribe to address the tribe's
claims.''
Senator McCain stated:
I also want to join my colleagues in urging the Department of
the Interior to seize this opportunity to address the Spokane
Tribe's comparable and equitable claims for damages arising out
of the inundation of their lands for the construction and
operation of Grand Coulee Dam.''
Thus, as the Colville Tribes' claims were being addressed, the
United States Congress made clear its intent that the Spokane Tribe be
treated fairly and honorably in connection with its claims for Grand
Coulee damages through prompt, good faith negotiations with the
Administration.
The Spokane Tribe adhered to the spirit of good faith negotiations
over the next several years. While the Administration in general
continued its refusal to take Congress' direction to negotiate fully a
fair and honorable settlement with the Spokane Tribe, the
Administration lead shifted from the Department of the Interior to the
Bonneville Power Administration.
For the next six years, from 1998 to 2004, the Tribe engaged in
very difficult negotiations with BPA. Finally, in 2004, the provisions
of a settlement bill were arrived at in which BPA had no objections.
Those provisions are contained in S. 2494.
Legislative History
Spokane Tribal acreage taken by the United States for the
construction of Grand Coulee Dam equaled approximately 39 percent of
Colville acreage taken for construction of the dam. The Spokane
settlement is based on 39 percent of the Colville settlement. At the
request of members of Congress, the payment provisions for the Spokane
settlement bill were reduced to 29 percent of Colville in exchange for
return of the Tribe's lands taken for the Grand Coulee Project.
Spokane Tribe settlement legislation has been introduced in the
106th, 107th, 108th, 109th and this the 110th Congress. In the 108th
Congress, hearings on H.R. 1797 were held before the House Resources
Subcommittee on Water and Power on October 2, 2003.
Hearings were also held on the Senate bill S. 1438, on October 2,
2003, before the Indian Affairs Committee. The bill was approved by the
United States Senate on November 19, 2004. The House of Representatives
adjourned late on November 20, 2004 without time to consider the
Senate-passed bill.
A Spokane Settlement Bill was introduced in the 109th Congress. The
House bill, H.R. 1797, was approved by the House of Representatives on
July 25, 2005. In the second session of 109th Congress, in 2006,
subsequent objections to S. 1438 by the State of Washington Department
of Fish and Wildlife, as well as the Lincoln County Commissioners,
stalled consideration of the settlement in the Senate. The Senate
adjourned without vote on the settlement bill.
Amendments and Support
The Spokane Tribe has agreed to modify the proposed legislation to
address various concerns. In 2007, the Spokane Tribe met with the State
of Washington Department of Fish and Wildlife and the Washington Office
of the Governor to address their concerns with the settlement bill. The
Tribe and State entered into an Agreement In Principle on May 1, 2007
to resolve those concerns. See Attachment A.1. Government-to-Government
Agreement In Principle.
The Governor of the State of Washington, Christine Gregoire, also
voices strong support for this settlement legislation, stating that it
is ``clearly appropriate'' and ``long overdue''. See Attachment A.2.
The Tribe and the Lincoln County Commissioners held meetings to
address the concerns of the Commissioners with provisions of the bill
affecting the Spokane River. The Tribe agreed to amend the bill to
address these concerns. Section 9(a)(2) was removed, thereby excluding
transfer to the Tribe of the south bank of the Spokane River, which is
located outside Reservation boundaries. Section 9.(a) now confines the
land to be restored to the Tribe to ``land acquired by the United
States . . . that is located within the exterior boundaries of the
Spokane Indian Reservation.'' On June 4, 2007, the Commissioners
endorsed by letter, ``strong support'' for the settlement legislation
as amended. See Attachment A.4.
The Stevens County Commissioners in letters of December 18, 2007,
request ``renewed support'' of the Tribe and for the settlement.
``Please continue in your efforts to get legislation passed which
finally settles this debt owed to the Spokane Tribe.'' See Attachment
A.5. The tribe also met with landowners concerned about this provision
in the bill. The above amendment regarding Section 9(a)(2) resolved
their stated concerns.
The Eastern Washington Council of Governments, pursuant to letters
of January 23, 2008, by Chairman Ken Oliver provides, ``We urge your
strongest support and consideration for this issue.'' See Attachment
A.6.
The Spokane Tribe has reached an agreement with the Colville Tribe
dated June 17, 2007 providing for a disclaimer provision in the bill
regarding adjoining Reservation boundaries. See Section 9.
Section 9(d)(1) was added to provide the United States, Bureau of
Reclamation full protection for carrying out Columbia Basin Project
purposes. Section 9(d)(3) was added to fully protect the authority and
interests of the National Park Service in the National Recreation Area
within the Reservation. Section 9(d)(4) was added to provide for an MOU
between the Department of the Interior and the Tribe to provide for
coordination on the land transfer. The Tribe is on record with the
Committee agreeing that the MOU be completed prior to the transfer of
lands back to the Tribe.
The Spokane Tribe has made numerous and significant concessions
over the course of negotiations on the provisions of the settlement
bill. The Tribe has reached agreement with federal agencies, the State
and county governments, the Colville Tribe, as well as private
individuals, to resolve their concerns or objections to the bill.
Administration Objections
On June 28, 2005, John Keys, the Commissioner of the U.S. Bureau of
Reclamation sent a letter to Congressman Richard Pombo, Chairman of the
House Committee on Resources, raising Administration concerns and
issues with H.R. 1797, Spokane Tribe of Indians of the Spokane
Reservation Grand Coulee Dam Equitable Compensation Settlement Act.
Subsequently, the Spokane settlement legislation was approved by the
House on July 25, 2005, during the 109th Congress. The Commission's
letter raised three main concerns. These concerns and the Tribe's
perspective on them and the actions the tribe took to address them are
discussed below.
``First, the Spokane Tribe has not brought forward a legal
claim that would warrant this type of settlement and there is
no legal claim pending.''
This legislation is not a settlement of legal claims, it is ``to
provide for equitable compensation . . . for the use of tribal lands
for the production of hydropower by the Grand Coulee Dam . . .''
The Colville settlement was also not a settlement of legal claims.
The Department of Justice took the express position before Congress
that the Colville also had no legal claim; only a ``moral claim''. The
settlement was based on the history and record of dealings with the
Tribe. This history and record includes the repeated promises made by
the U.S. to provide compensation to both tribes.
``While plaintiff had no legal and equitable claim based on the
navigational servitude, they did have a viable moral claim
based on the ``fair and honorable dealings'' provision of the
Indian Claims Commission Act of 1946.
The resolution reached in the proposed settlement does not
constitute an admission of liability. . .. But, we are prepared
to recognize that the record, in this timely filed claim, can
be read to reflect an undertaking by the United States with
respect to power values. Because of that we think it is fair
and just to fashion a complete resolution of this longstanding
claim.''
State of Peter R. Steenland, Appellate Section Chief,
Environment and Natural Resources Div., Dept. of Justice (Joint
Hearing on S. 2259 before the Subcomm. on Water and Power of
the Comm. on Energy and Natural Resources and the Comm. on
Indian Affairs, S. Hrg. 103-943, Aug. 4, 1994. at 17).
Congress has enacted many equitable settlements and jurisdictional
legislation on behalf of Indian tribes for the flooding of tribal lands
for the use of hydropower and other purposes in the interest of justice
and fairness.
In the 1994 Colville settlement Hearings and Colloquy, senators
McCain, Bradley, Inouye and Murray instructed the U.S. to negotiate a
similar settlement with the Spokane Tribe-along the lines of the
Colville settlement. The Senate Committee and the Colloquy expressly
noted that both tribes suffered virtually identical harm and yet the
settlement legislation compensated only the Colville Tribe. Specific
quotes from that colloquy are contained in this statement under
CONTINUING RECOGNITION OF THE TRIBE'S INTERESTS at pp. 9-12.
The U.S. made express promises to compensate both tribes with a
share of the power revenues for the use of tribal lands in 1933 and
1935. See HISTORICAL CONTEXT at pp. 2-3.
The DOI Associate Solicitor Memorandum of 1976 states that the U.S.
behavior toward both tribes amounted to an ``act of confiscation'',
where the trustee converts the property of the beneficiary to his own
use.
``The Department has not only failed to give the Tribes a share
of the benefits of developing tribal property, but in the
development has largely destroyed what other economic bases,
fishing, farming and timbering, the Tribes may have had in
their remaining property. The blatant lack of care taken by the
Department to protect its own fiduciaries is confirmed by the
letters and background activity described previously in the
Statement of Fact. In the case of Grand Coulee, the Department
knew precisely what destruction was being caused and what types
of compensation of tribal property were appropriate. . ..
Finally, given the knowledge the Department had of the Indian
rights and needs at stake, it appears to have been derelict in
not informing Congress of these, so that congress could take
informed and specific action. . .. No case law grants executive
agencies authority to unilaterally abrogate Indian rights.
Certainly throughout the construction of these two projects,
the posture of the Department can be described not as . . . an
exercise of guardianship, but an act of confiscation.''
Memorandum from Lawrence A. Aschenbrenner, Acting Associate
Solicitor, Division of Indian Affairs, to Solicitor, p. 13
(1976) (emphasis added).
In 1975, Congress authorized the Grand Coulee Task Force ``to
determine what, if any, interests the Tribes have in such production of
power at Chief Joseph and Grand Coulee Dams, and to explore ways in
which the Tribes might benefit from any interest so determined.'' S.
Rep. 94-505, Dec. 4, 1975, at 79.
In the interim, in 1979, the Solicitor for Interior proposed to the
Secretary of the Interior a Congressional settlement of the claims of
the Colville and Spokane Tribes, stating,
``I firmly believe that a settlement in this range is a
realistic and fair way of resolving this controversy. The
representatives of the Departments of Energy and Army who
participated on the Federal Negotiating Task Force concur.
Legislative Proposal on Settlement of the Claims of the
Colville and Spokane Tribes, Memorandum of Leo M. Krulitz to
Eliot Cutler, May 7, 1979.
In the 1980 Task Force Report, the U.S. instead, for the first
time, asserted legal defenses against the Tribes' claims and denied
compensation.
``[I]n 1975, the Senate Committee on Appropriations directed
the Secretaries of the Interior and Army to open discussions
with the Tribes to assess a resolution of this dispute. S. Rep.
94-505, p. 79. Pursuant to that directive, a task force,
consisting of the Departments of the Interior and Army, and the
Bonneville Power Administration, issued a final report in
September 1980.
The report was approved by the Secretary of the Interior. It
concluded among other things that there was ``no question but
that the Tribes would be entitled to compensation had the
projects been built and operated by the Federal Power Act
licensees,'' and that the Tribes would have received a
reasonable benefit as fixed by that Commission pursuant to
Section 10(e) of the Federal Power Act. The report further
suggested that the legal defenses of the United States be
exhausted with respect to navigational servitude before further
action be taken regarding the Tribes' power claims.''
Statement of Peter R. Steenland, Appellate Section Chief,
Environment and Natural Resources Div., Dept. of Justice (Joint
Hearing on S.2259 before the Subcomm. on Water and Power of the
Comm. on Energy and Natural Resources and the Comm. on Indian
Affairs, S. Hrg. 103-943, Aug. 4, 1994, at 16).
Following the 1994 Colville Settlement, the Spokane Tribe attempted
to carry out the negotiation of a settlement with DOJ and DOI. The
Tribe consistently, over several years, got nothing but bounced back
and forth between the run-a-round from both agencies and no actual
negotiations occurred.
``The hearing records show that Committee members in both the
House and Senate were sensitive to the need to provide a
settlement for the Spokane Tribe. The report of the House
Natural Resource Committee directs the Departments of the
Interior and Justice to negotiate with the Tribe to settle its
claims. In the Senate, a colloquy between Senators Murray,
Inouye, Bradley and McCain stressed that appropriate federal
agencies should negotiate with the Spokane Tribe.
Based on the foregoing, we are requesting that the Department
proceed as soon a possible to negotiate with the tribe on its
power value and fishing claims as previously directed by
Congress.''
Letter from Sen. Patty Murray, Sen. John McCain, Sen. Daniel
Inouye, Sen. Bill Bradley, and Rep. George Nethercutt to Bruce
Babbitt, Secretary of the Interior, dated July 9, 1996.
``The claims of the Spokane Tribe of Indians are virtually
identical in substance to those of the Colville Tribes related
to construction and operation of the Dam: loss of religious,
fishing, burial, power and irrigation sites. While the region
received significant benefits, the Tribe suffered devastating
impacts on their culture, lifestyle and economy which have not
yet been addressed. Because of the Administration opposition,
the Congress did not settle the Spokane claims when the
Colville Settlement Act was passed, nor did the Settlement Act
waive the ICCA statute of limitations to open the door for the
Spokane Tribe's equitable claim.
The Congress did, however, recognize this Nation's need to
resolve the Spokane Tribe's claims regarding Grand Coulee Dam.
In fact, the House Committee Report on the Colville bill
directs the Departments of Interior and Justice to work with
the Spokane Tribe to address the Spokane Tribe's claims on
their own merits. A colloquy among Senators Bradley, McCain,
and ourselves in November 1994 expressed the same direction to
the agencies as the House Report.
We are therefore frustrated that three years after enactment of
the Colville Tribes's Settlement Act, the Departments, while
conducting numerous meetings with the Tribe, have still failed
to enter into negotiations.
We continue to believe it is grossly unjust for one Tribe to be
compensated while a similarly affected neighboring Tribe is
left with no remedy. Therefore, in the strongest possible
terms, we urge the Departments to enter into negotiations with
the Spokane Tribe immediately so that a fair and equitable
settlement of the Tribe's claims can be reached. A resolution
of the Spokane claims, of course, must involve payment for past
damages, as well as payment for future power revenues.''
Letter from Sen. Patty Murray and Sen. Daniel Inouye to Bruce
Babbitt, Secretary of the Interior and Janet Reno, Attorney
General, dated March 2, 1998.
The Spokane Tribe finally sought legislative help from Senator
Murray and Congressman Nethercutt, and asked for a jurisdictional bill
to allow the Tribe to file a legal claim and have it's day in court
with the U.S.. The DOJ strongly opposed this effort.
That is why there is no legal claim. The Colville did not have one
either. Both Tribes did not file Coulee claims in 1951. Both Tribes did
not have legal claims. Both Tribes have equitable moral claims. Only
one Tribe is being compensated. The U.S. misled both Tribes with
promises and negotiations and then reversed position by asserting legal
defenses 40 years after the fact when the compensation stakes got too
high. Words where much cheaper than fair compensation. Since the
Spokane Tribe had settled their claims case with the U.S. in 1967, they
had no claims case to amend to later add Grand Coulee claims.
``The Administration therefore believes it would be premature
to assume that future budget proposals will recommend . . .
appropriations at the levels proposed in the bill.''
The impact on BPA ratepayers would be approximately 9 cents per
megawatt hour ($0.09). That represents a 0.14 to 0.31 percent increase
in BPA rates. This is about as close to a zero impact as one could
calculate. BPA clearly should be able to reduce costs by one or two
tenths of one percent to cover the cost of the annual payment proved
for in Section 6 of the bill.
The Senate Committee and the House Report instructed the U.S. to
negotiate a settlement with the Spokane along the lines of the Colville
settlement.
The Spokane lost the equivalent of 39 percent of the lands the
Colville lost to Grand Coulee. The Spokane bill provides the equivalent
of 29 percent of the Colville settlement payments adjusted for
inflation from the date of the Colville Settlement Act, in addition to
the return and transfer of lands in Section 9.
The Spokane also lost all salmon runs and two of their valuable
hydropower sites on the Reservation.
``Second, the Department is concerned with transferring land
and jurisdiction . . . absent a prior written agreement to
fully address future management responsibilities.''
Following release of the Administration/Keys letter on June 28,
2005, the Tribe met with U.S. DOI/BOR officials, including the
Commissioner of BOR, on July 12, 2005 and came to an agreement that the
land transfer would not take place until the MOU between the U.S. and
the Tribe called for in Section 9(c)(4) was completed. This agreement
was communicated to the Committee via a July 21, 2005 e-mail message
from Tribal Attorney, Howard Funke to Majority and Minority Counsel,
Senate Committee on Indian Affairs (proposing Senate report language
evidencing this agreement).
``Third, what specific duties are required of the Secretary . .
. with respect to trust lands? ''
The bill was amended to add current Section 9.(b)(2) FEDERAL TRUST
RESPONSIBILITY. The Federal trust for all lands transferred under this
section shall be the same as the responsibility for other tribal land
held in Trust within the . . . Reservation.
The Department of the Interior is well versed in its trust
responsibility for Indian Reservation lands. These Spokane Reservation
lands returned to the Tribe are no different.
The Tribe understands that the Department of the Interior, despite
these modifications to the legislation and the historical context for
such a settlement, continues to have virtually the same three issues
with the Spokane settlement legislation. The House, in the 109th
Congress approved the Spokane settlement legislation, with knowledge of
these issues.
Conclusion
The Tribe has exerted significant efforts to retain its homelands,
to receive the benefit of the promises made by the United States to
reserve our lands, and to fairly compensate us for the use of our lands
for the production of hydropower. Our people have endured enormous past
and present impacts to their resources, their way of life and their
culture due to operation of the Project. Grand Coulee delivers enormous
benefits to the United States and the region. The Colville Tribes,
similarly situated directly across the Columbia River, share in the
benefits of the Project. The Spokane deserve fair and honorable
treatment by its trustee, and the region, in a settlement due them for
the use of their lands for the production of hydropower and many other
Project purposes.
The Chairman. Mr. Sherwood, thank you very much.
To my colleagues, I indicated at the start that Mr. Gidner
would be discussing the first two bills, because the witnesses
had problems with travel schedules and will have to leave to
catch an airplane. Mr. Gidner will stay on the panel as we
receive the other witnesses.
I also indicated that we have votes beginning at 11
o'clock, so my hope will be that we will finish these bills,
including the second panel of witnesses, by 11 o'clock.
Let me call on Senator Tester for questions and then
Senator Barrasso.
Senator Tester. Chairman Venne, you say you have 2.2
million acres in your reservation. How many acres of that is
fractionated?
Mr. Venne. Probably about 80 percent of it.
Senator Tester. Eighty percent of it. If we get this bill
through, how long would you anticipate, and I know this is a
crystal ball question, but I have to ask it, how long would you
anticipate it taking to get the land back in a form where it is
developable?
Mr. Venne. We have discussed this with Interior and they
gave me a time line for about five years to get this project
done.
Senator Tester. And it is a project, if I understand, about
$380 million, 80 percent of 2.2 is about 1.6 million plus 1.7
million acres?
Mr. Venne. Yes.
Senator Tester. Okay. Mr. Chairman, do you want them all
directed to the chairmen of the tribe and we will save Jerry
Gidner for later?
The Chairman. Let us save Mr. Gidner until the other
witnesses have testified, if that is satisfactory.
Senator Tester. That would be good. That is all I had. I
just want to clarify one thing that you said: 10 percent of the
total fractionated land in Indian Country in the United States
is on the Crow?
Mr. Venne. Yes, it is.
Senator Tester. Okay. The average, the way the allotments
work and the way it has been split up over the last many, many
decades, is it 40, 50 people average on each parcel?
Mr. Venne. Yes, at least 40 to 50 people. Some are over
200, some are even over 1,000 owners.
Senator Tester. Do you have records on the reservation or
do they have records in the courthouse? How do you know who to
contact?
Mr. Venne. We have all the records on each parcel of land
and who owns it and how many people own it.
Senator Tester. The last question I have, the $380 million,
the way I read it, is that it is used for the purpose of buying
the land to consolidate. It looks to me like there are going to
be some pretty heavy administrative costs here, especially if
you have parcels of land with up to 1,000 people owning them.
Have you figured that into the equation and do you have the
ability to handle that onsite?
Mr. Venne. Yes. The present realty office, their budget is
about $1 million a year. By the Crow Tribe doing it, Interior
had agreed to give us $5 million a year to take care of this
problem. I think that would be sufficient to do it. We were
talking about, the bill, if it passes, I have to go back to
Interior to negotiate how everything else is going to come into
play. So this is not the final. What if we don't come to an
agreement with Interior? That is why I was a little hesitant to
say, why isn't Interior supporting this bill when it actually
came out of Interior here in D.C. with the Crow Tribe to take
care of the fractionated lands? If you look at Interior's
budget, there is doubt, and the statistics are out there, that
it is going to keep costing, costing more and more every year
to handle fractionated interests in Indian Country.
Senator Tester. This will truly be my last question. You
talked about your negotiations. The negotiations that you have
had surrounding this bill, and you said it in your testimony, I
just didn't write it down, the negotiations you have had have
been with Interior or with BIA or with both?
Mr. Venne. Both.
Senator Tester. Okay.
The Chairman. Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
First, Chairman Sherwood, I think I heard you say that you
were sitting in the same seat that your great-grandfather sat
in many years ago, fighting. I think he would be very proud of
you today. Congratulations, you do an outstanding job.
Mr. Sherwood. Thank you.
Senator Barrasso. First of all, Chairman Venne, a couple of
things. I heard the huge number, the large number for
unemployment in your community. I want to congratulate you on
your efforts to develop your resources, to increase value, to
increase productivity and use of the land, to become self-
sufficient. As the neighbor to the south, everything you do to
benefit your own I believe helps communities on both sides of
the Wyoming-Montana border.
I do have some questions on S. 1080, the Crow Tribe Land
Restoration Act. As we are neighbors, this bill in essence has
about three moving parts on our neighboring relationship on the
river between Wyoming and Montana. There are the tribes' 1868
water rights that predates the States of Wyoming, the States of
Montana and even the Eastern Shoshone and Northern Arapaho
Tribes in Wyoming. There is the Crow Compact, a complex
agreement between the State of Montana and the Crow, which was
designed in 1999 to quantify the Tribe's water rights. And we
have this land bill, which would address the Crow Tribe's
difficulties with land issues. It would aid the Crow in
purchasing lands that have water rights attached.
All of us as neighbors need to understand how the purchase
of these lands will affect the water rights on the Big Horn
River. And I hear a lot about that from the folks in Big Horn
County in Wyoming. So I am sensitive to protecting existing
rights. I can understand the need to quantify and clearly
assign water rights. I recognize that the Crow Tribe is trying
to do the best that it can for all of its people. I think it is
equally important to investigate how this legislation may
impact on upstream rights and users in the State of Wyoming.
I know that Mr. Gidner, in his short statement in the
record, has some objections. I am looking forward to seeing
what those objections may be. I have a couple of questions to
try to clarify and see if I can get a better understanding.
It seems that the land acquired by the Tribe with the aid
of this loan comes with the water rights for that land. I am
wondering, how will that affect the upstream users and the
existing rights on the Big Horn River?
Mr. Venne. This bill does not affect any water rights. In
fact, within a couple weeks, we will be presenting our water
rights settlement. I know Wyoming and Montana are talking about
the flow of the Big Horn River. But the Tribe was always left
out of any discussions on the river and how it flows and what
is stored behind the dam.
Our water bill will take care of that. It will also satisfy
the people in Montana.
Senator Barrasso. I was wondering how the water rights
which are attached to the land, if those water rights would be
added to the Tribe's base and would that affect the Crow
Compact in some way?
Mr. Venne. No.
Senator Barrasso. When I look at the document that was
ratified in Montana in 1999, there is a section that explains
what happens if the tribes acquire more land. I will read it,
because I am not exactly sure what it means. It says, ``The
water right appurtenant to the land acquired shall become part
of, and not an addition to the tribal water right quantified in
this compact.'' Please help me out.
Mr. Venne. As I see it, any person that buys any land on
the Crow Reservation, they would inherit that water right. But
the allocations that they are doing under the bill will keep
ours stable, so it won't go up or go down. It really doesn't
affect anything that I can see.
Senator Barrasso. That was just the question, is how does
this affect the upstream users, which is the folks in Wyoming?
Mr. Venne. Our water rights settlement, when it is
presented, and we will give you a copy today of that and what
we are trying to do in settling that. For you to read it and
understand it, I think you will agree with me that nobody is
going to be hurt by this legislation.
Senator Barrasso. Thank you. Thank you for your answers.
The Chairman. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
Chairman Sherwood, it is good to see you here in
Washington, D.C. I thank you for your continued efforts in this
area. I wanted to ask you a few questions about the difference
in this legislation versus past legislation.
It is my understanding that this legislation is different
in the way it treats some of the boundaries, and that
particularly this time we have county commissioners from
Lincoln and Stevens County and the Eastern Washington Council
and City of Spokane who are also enthusiastic about this
legislation. Could you tell me what is different and how this
has garnered their support?
Mr. Sherwood. We faced opposition initially from Lincoln
County. I think a lot of it was misunderstanding. One of the
things we have done is we worked with the State of Washington,
we worked with Lincoln County to actually come up with
agreements on how we would enforce, and actually how we would
protect the people of the river.
Right now there is a lot of questioned areas as far as law
enforcement goes, whose jurisdiction is where. So what we try
to do is work with the counties to make sure it is a seamless
lake, it is a recreation area used by people from all over the
Country. It is an important part of our economic growth. We
have worked hard to make sure that we work with the surrounding
communities to provide the best type of service we can to the
people who utilize Lake Roosevelt.
Senator Cantwell. Does that include an agreement with the
Washington Department of Fish and Wildlife?
Mr. Sherwood. We have an agreement in principle if this
legislation goes through with the Washington Department of Fish
and Wildlife.
Senator Cantwell. Mr. Gidner, I am trying to understand
your testimony as it relates to the legal claim issue. Congress
obviously explicitly directed the Department of Interior to
give just and equitable compensation to those who had been
impacted. How are you saying that the Spokane Tribe, similar to
the Colville Tribe, has not been impacted?
Mr. Gidner. I did not say, Senator, that they had not been
impacted.
Senator Cantwell. I am asking you, how are you filling that
mandate that was a directive of Congress to compensate those
who were impacted?
Mr. Gidner. I guess I am not sure about the mandate. I know
the Federal Power Act directed compensation or revenue sharing
if a private developer had built a plant. This is the Federal
Government, so that section did not apply.
Senator Cantwell. I think legislation enacted in 1940
directed the Secretary of Interior to determine if just and
equitable compensation for tribal lands taken as a result of
the Grand Coulee Dam projects. I think we are talking about a
situation here where we have given just and equitable
compensation to one impacted tribe and not to another.
Mr. Gidner. My understanding is, if that is the case, those
claims were processed in the Indian Claims Commission and the
statute of limitations expired and the Spokane Tribe did not
amend their claim to include these. They settled their pre-
existing claim. So at this point, there is not a legal claim to
compensation for that.
Senator Cantwell. I think that is why we are here today and
we have legislation, is that this has been an ongoing dispute
where you have a very direct mandate from Congress to make sure
that everybody is compensated and you are tying the Spokanes on
a technical issue. I think the Colvilles actually amended a
separate claim. I think they were in the same situation, isn't
that right, Mr. Sherwood?
Mr. Sherwood. Yes. We settled our claim, it was in 1967. We
settled our claim. The Colvilles actually didn't settle their
claim, so they amended their claim in 1975. We had no claim to
amend. But the statute of limitations actually expired in 1951.
So both tribes were in the same boat. We settled our claim, the
Colvilles didn't, so they were actually allowed to amend their
claim later on.
Senator Cantwell. So for that technical ability, I still
say that we have a directive here by Congress that is not being
met, and that is to give just and equitable compensation. That
is, in fact, I think the need for this legislation.
I thank the Chair.
The Chairman. Thank you.
Vice Chair Murkowski, did you have any questions?
Senator Murkowski. Thank you, Mr. Chairman. I don't have
any specific questions of the panel. I was intending to ask Mr.
Sherwood for clarification in terms of what is different
between the legislation as we have it now and what we have seen
in the past. I appreciate the clarification and I appreciate
your leadership on this issue and your efforts on behalf of the
Spokane Tribe.
Mr. Venne, I appreciate all that you do on behalf of your
tribe as well, as you attempt to get these issues resolved.
I am appreciative of you, Mr. Chairman, for holding the
hearing so that we can resolve, or attempt to resolve through
legislation, some of these issues that many of these tribes
have been dealing with for a long time.
The Chairman. Senator Murkowski, thank you very much.
These are smaller pieces of legislation for the Committee,
and yet very large issues for individual tribes, because they
have been working, in many cases, for years. The issue of
fractionation is a very significant issue, and the issue of
just and fair compensation, I would say, is equally
significant. We on the Committee want to have these hearings
and begin trying to move some of these bills. It is not that we
would disregard Mr. Gidner at all. The Interior Department,
however, has testified previously on many of these issues.
I just want to say that often the Department's testimony
is, well, we have not reached conclusions on negotiations. Then
when you find out how long the negotiation has been going on,
the answer is years. It is not lost on us, Mr. Sherwood, when
Senator Barrasso observes that your great-grandfather came to
the Congress and then your father and now you come to the
Congress. It describes the difficulty of getting resolution,
getting things done, getting solutions and answers. I think
your tribes are asking for tools and opportunities to move
ahead, solve problems, move ahead, give you opportunity as a
result.
We appreciate very much the two tribes that have testified
on the first panel. My understanding is that you do have some
transportation issues that you are to attend to, some airplanes
to catch. So, we will release you. If you do have time to stay,
you are welcome to do so.
We will invite the other witnesses to come forward. We will
hear from them and then we will question Mr. Gidner. We
appreciate both of you very much for appearing before the
Committee today.
We will call the second panel forward. Mr. Gidner will
remain.
The second panel is the Honorable Mark Macarro. He is the
Tribal Chairman of the Pechanga Band of Luiseno Mission Indians
in California. The Honorable Aaron Payment, Chairman of the
Sault Ste. Marie Tribe of Chippewa Indians in Michigan. The
Honorable Benjamin Nuvamsa, Chairman of the Hopi Tribe in
Arizona. And Mr. Raymond Maxx, Navajo Nation Council Delegate
and Chairman of the Navajo Hopi Land Commission, Navajo Nation
Council at Window Rock, Arizona.
We appreciate very much all of you coming to the Congress
and to the Indian Affairs Committee. You have heard that we
would ask you to summarize your statements. Your entire
statements that each of you provided us will be made a part of
the permanent record of this Committee.
Let me ask Mr. Mark Macarro, Tribal Chairman of the
Pechanga Band of Luiseno Mission Indians in California, to
proceed.
STATEMENT OF HON. MARK MACARRO, TRIBAL CHAIRMAN, PECHANGA BAND
OF LUISENO MISSION INDIANS
Mr. Macarro. Chairman Dorgan, Vice Chair Murkowski, Senator
Barrasso, Senator Tester and Senator Cantwell, my name is Mark
Macarro, I am the Tribal Chairman for the Pechanga Band of
Luiseno Mission Indians in Temecula, California. We are in
Southern California about 60 miles north of San Diego County.
Our aboriginal land territory used to encompass from where
Temecula is today an area 30 miles to the north, 30 miles to
the south and about 45 miles east to west, out to the ocean to
the west and into the mountains to the east. Today we have
5,500 acres.
The Pechanga Band of Luiseno Mission Indians is
respectfully asking your support of H.R. 2963, the Pechanga
Mission Indian Lands Transfer Act of 2007. If passed into law,
this bill would protect approximately 1,178 acres of land in
Riverside County adjacent to our existing reservation by
transferring it into trust for the benefit of the Tribe.
It is because of our history and cultural affiliation with
these lands that the passage of H.R. 2963 is so important to
the Tribe. Our identity and existence as Luiseno people is
dependent upon the connection, maintaining the connection and
protection of these ancestral lands. Today, our tribal
government operations, such as our environmental monitoring and
our natural resources management programs exist to fully honor
and to protect the land and our culture that exist on it.
In particular, we are concerned about also watershed and
wellhead protection and groundwater resources, and the
availability of water for our community. The land that would be
placed under trust in H.R. 2963 is part of the recharge area
for some of these resources, and would help protect the quality
and ensure an adequate supply of water for the Tribe and
surrounding communities.
These lands are also unique and important in terms of the
cultural resources that they encompass. They include
pictographs and petroglyphs that are unique not only to Luiseno
Country but I think to all Indian Country. While these lands
have a unique historical and cultural value for the Pechanga
people, they are also important for the broader aesthetic, the
visual aesthetic value to the communities throughout the
Temecula Valley.
The Tribe is very proud of our protection of cultural
resources on our tribal properties and throughout our ancestral
lands, which we no longer own. The Tribe is proud that we have
preserved and protected these cultural places on lands in a
culturally appropriate manner. More appropriately, we are proud
that we have given these resources a level of protection that
they would not have received had they been subjected to outside
standards. I think even under the best of circumstances, many
of these standards simply mitigate destruction rather than
protect.
So the Tribe is ever vigilant to protect our cultural
resources, since we now own only a tiny fraction of the lands
that once belonged to us, and because most of these resources
have already been lost to development off the reservation in
non-tribal jurisdictions.
As stewards of our traditional tribal lands, the Tribe will
continue to ensure responsible management of the lands upon
transfer. For example, although the lands in question will not
be subject to the Riverside County multi-species habitat
conservation plan, the MSHCP, once they have been transferred
to the Tribe, the Tribe has agreed in its MOU with the Fish and
Wildlife Service to manage the land in a manner consistent with
the goals of the locally-derived MSHCP. Protecting the sanctity
of these lands through our conservation and resource management
is the highest priority for the Tribe. Our mandate is to
protect and enhance the sustainability and well-being of the
Pechanga way of life. Accordingly, the tribal government issued
an executive order, which has zoned the land to be transferred
under H.R. 2963 for conservation and management of wildlife and
cultural values. Such zoning would make any commercial or other
significant development of the lands contrary to tribal law.
Recognizing the importance of these lands to the Pechanga
people, the Tribe began in 1990 working the administrative
process with the BLM. It was a local scoping hearing that BLM
conducted, beginning in 1990, for this parcel which it had
targeted at that time for disposal. The parcels come on and off
that disposal list. But administratively, we have been working
for about 18 years through that process.
During the 108th Congress, well, actually in 2004 it was
Congressman Darrell Issa who was approached by the BLM out of
interest to see if he could carry a bill that would transfer
the land to us. They knew at the time that we were interested
in obtaining and managing that land. They were looking to help
release some of the management burden. There were dozens upon
dozens of disparate parcels of land in Southern California that
has its management challenge for the BLM. So it appeared to be
a win-win for everybody.
During the 108th Congress, H.R. 4908, a bill which was
substantially similar to H.R. 2963, was introduced to the
House, and H.R. 4908 was not passed by the House due to
concerns expressed by San Diego County late in the process.
During the 109th Congress, the Pechanga Band made extensive
efforts to work with all affected parties to iron out any
concerns or miscommunications regarding the provisions of H.R.
3507, which also passed out of the House of Representatives.
We resolved all concerns expressed by parties of which we
were aware, which included concerns raised by the counties of
Riverside and San Diego. Also during the 109th Congress, it was
discovered that a power line runs across the southwest corner
of the BLM parcel. The BLM and the owner of the power line,
Semper Energy, have agreed to language that addresses the
identification and disposition of 12.82 acres that encompasses
the power line.
In the 110th Congress, the BLM remains supportive of this
trust transfer, which is now embodied in H.R. 2963.
In closing, I would like to thank you for the opportunity
to address you. On behalf of the Pechanga Band of Luiseno
Indians, I respectfully request that you support H.R. 2963.
Thank you for your time.
[The prepared statement of Mr. Macarro follows:]
Prepared Statement of Hon. Mark Macarro, Tribal Chairman, Pechanga Band
of Luiseno Mission Indians
Good morning Chairman Dorgan and Vice-Chairperson Murkowski. Thank
you for the opportunity to provide testimony on behalf of the Pechanga
Band of Luiseno Mission Indians.
The Pechanga Band of Luiseno Indians respectfully requests your
support of H.R. 2963, the Pechanga Band of Luiseno Mission Indians Land
Transfer Act of 2007. If passed into law, this bill would protect
approximately 1178 acres of land in Riverside County, California,
adjacent to our existing reservation, and important to the Luiseno
people, by transferring it into trust for the benefit of the Tribe.
The Tribe has called the Temecula Valley home for more than 10,000
years and 10,000 years from now, tribal elders will share with tribal
youth, as they do today, the story of the Tribe's creation in this
place. Since time immemorial, through periods of plenty, scarcity and
adversity, the Pechanga people have governed ourselves and cared for
our lands. This land is witness to our story.
The history of the Tribe begins with our ancestral home village of
Temeeku, which was a center for all the Payomkawichum, or Luiseno
people. After the establishment of the state of California in 1850, a
group of Temecula Valley Ranchers petitioned the District Court in San
Francisco for a Decree of Ejection of Indians living on the land in
Temecula Valley, which the court granted in 1873.
In 1875 the sheriff of San Diego County began three days of
evictions. The Luiseno people were taken into the hills south of the
Temecula River. Being strong of spirit, most of our dispossessed
ancestors moved upstream to a small, secluded valley, where they built
new homes and re-established their lives.
A spring located two miles upstream in a canyon provided them with
water. We have always called this spring Pechaa'a, which comes from
pechaq, which means to drip. This spring is the namesake for
Pechaa'anga or Pechaanga, which means ``at Pechaa'a'' or ``at the place
where water drips.''
On June 27, 1882, seven years after being evicted, the President of
the United States issued an Executive Order establishing the Pechanga
Indian Reservation. Several subsequent trust acquisitions were made in
1893, 1907, 1931, 1971 and 1988, each one increasing the size of the
reservation.
At present, the total land area of the Pechanga reservation is
approximately 5,500 acres. As a people of this ancestral land that
spreads from the center of Temecula out 60 miles north and south and
approximately 45 miles east to west, we have always been respectful of
and responsible for the environmental, social and economic
relationships that exist upon it.
It is because of our history and cultural affiliation with these
lands that the passage of H.R. 2963 is so important to the Tribe. Our
identity and existence as Luiseno people is dependent upon our
connection to and protection of these ancestral lands.
Today, our tribal government operations, such as our environmental
monitoring and natural resource management programs, exist to fully
honor and protect the land and our culture upon it. In particular, we
are concerned about watershed and wellhead protection for our surface
and ground water resources and the availability of water for our
community. The land that would be placed into trust under H.R. 2963 is
part of the recharge area for some of these resources and would help
protect the quality and ensure an adequate supply of water for the
Tribe and surrounding communities.
These lands are also home to important cultural resources,
including pictographs and petroglyphs unique, not only to Luiseno
territory, but to all of Indian country and our Nation. While these
lands have a unique historical and cultural value for the Pechanga
people, they are also important for their broader aesthetic value to
communities throughout the Temecula Valley. The Tribe is very proud of
our protection of cultural resources on our tribal properties and
throughout our ancestral lands. Our Cultural Committee has a well-
deserved reputation for thoroughness and strictness in its demands for
protection of cultural resources. The Tribe is also very proud that we
have preserved and protected all of our cultural places on tribal lands
in a culturally appropriate manner. More importantly, we are proud that
we have given these resources a level of protection they would not
receive if they were located outside of the reservation boundaries,
even in the best of circumstances. The Tribe is ever vigilant to
protect our cultural resources since we now own only a tiny fraction of
the lands that once belonged to us and because most of these resources
have already been lost to development in non-tribal jurisdictions.
As stewards of our traditional lands, the Tribe will continue to
ensure responsible management of the lands to be transferred. For
example, although the lands in question will not be subject to the
Riverside County Multi Species Habitat Conservation Plan (MSHCP) once
they have been transferred to the Tribe, the Tribe has agreed in its
MOU with Fish & Wildlife to manage the land in a manner consistent with
the goals of the MSHCP. In fact, when questions came up about the
Tribe's development of a golf course on a portion of similar tribal
lands, the Tribe commissioned a MSHCP consistency analysis by a County
approved MSHCP consultant which concluded that the Tribe's treatment of
the property in question is consistent with meeting and/or exceeding
the MSHCP goals for development within that geographical area.
Although we have always believed in the sanctity of our lands, and
have planned carefully for the use and preservation of our land, one
environmental group has recently questioned our adherence to the
National Environmental Policy Act and our development efforts on the
reservation.
After conversations with the representative of this group, we found
their objections to be unwarranted, insulting and disturbing. The
criticism is aimed specifically at a parcel, known as the Great Oak
Ranch parcel, which was transferred to the Tribe through the
administrative fee-to-trust process. In 2002, the Tribe succeeded in
preventing a major power line from being situated on this parcel, the
Great Oak Ranch. The Tribe, along with the surrounding community
averted an environmental impact which would have left a lasting imprint
on the lands of the Pechanga people and the Temecula Valley.
We assure you the Tribe has devoted significant tribal resources
ensuring the use of our lands adheres to the principles of the National
Environmental Policy Act, the MSHCP and California environmental laws.
We have long-standing cooperative and supportive relationships with our
local environmental groups and our local governments, and have made
every effort to coordinate our planning and gain their support for
Tribal projects which affect the community.
Protecting the sanctity of these lands through conservation and
resource management is of the highest priority for the Tribe. Our
mandate is to protect and enhance the sustainability and well being of
the Pechanga way of life. Accordingly, the tribal government also
issued an Executive Order zoning the land to be transferred under H.R.
2963 for conservation and management of wildlife and cultural values.
Such zoning would make any commercial or other significant development
of the lands contrary to tribal law.
Recognizing the importance of these lands to the Pechanga people,
the Tribe began working with the Bureau of Land Management (BLM) nearly
15 years ago to place these lands into trust. In the spring of 2004,
the BLM indicated to Congressman Darrell Issa (R-CA) their willingness
to transfer the land. In response to the BLM, Congressman Issa
introduced legislation to transfer the land to the Tribe.
During the 108th Congress, H.R. 4908, a bill which was
substantially similar to H.R. 2963, was introduced in the House of
Representatives. H.R. 4908 was not passed by the House due to concerns
expressed by San Diego County late in the process.
During the 109th Congress, the Pechanga Band of Luiseno Indians
made extensive efforts to work with all affected parties to iron out
any concerns or miscommunication regarding the provisions of H.R. 3507,
which also passed out of the House of Representatives. We resolved all
concerns expressed by parties of which we were aware, including
concerns raised by Riverside and San Diego Counties. Concerns regarding
management of the lands expressed by the U.S. Fish and Wildlife Service
were resolved through language in the legislation regarding the
management of and purposes for which the transferred land may be used
and through the execution of a formal Memorandum of Understanding,
signed by the Bureau of Land Management, the Fish and Wildlife Service
and the Pechanga Band of Luiseno Indians.
Also during the 109th Congress, it was discovered that a power line
runs across the southwest corner of the parcel. The BLM and the owner
of the power line, Sempra Energy, have agreed to language that
addresses the identification and disposition of the 12.82 acres that
encompasses the power line. That language has been incorporated into
the current bill in front of you today, H.R. 2963.
In the 110th Congress, the Bureau of Land Management remains
supportive of this trust transfer, now embodied in H.R. 2963. We have
also received the support of the City of Temecula, which is adjacent to
the property, in the form of a resolution passed by the City Council.
In closing, I thank you for the opportunity to address you, and, on
behalf of the Pechanga Band of Luiseno Mission Indians, I respectfully
request your support for H.R. 2963. Thank you for your time and
consideration of this matter.
The Chairman. Mr. Chairman, thank you very much. You too
have a history of appearing before our Committee. We appreciate
very much your being here.
We will hear now from the Honorable Aaron Payment, who is
the Chairman of the Sault Ste. Marie Tribe of Chippewa Indians
in Michigan.
STATEMENT OF HON. AARON PAYMENT, CHAIRPERSON, SAULT STE. MARIE
TRIBE OF CHIPPEWA INDIANS
Mr. Payment. Good morning. My name is Aaron Payment. I am
the democratically-elected chairperson of my Tribe, the Sault
Ste. Marie Tribe of Chippewa Indians.
I would like to thank the Committee for the opportunity to
present my testimony on H.R. 2120. This bill is important to my
Tribe, because as I see it, it is simply an effort to correct a
failure on behalf of the BIA to properly exercise its trust
responsibility to my Tribe.
My Tribe is the largest east of the Mississippi, with
38,000 members. We were recognized in 1972 after a 20-year
struggle. The Treaty of Washington in 1936 recognized my
Tribe's aboriginal territory, which is where we have resided
since time immemorial and where we continue to reside.
Our service area includes the seven eastern counties in the
Upper Peninsula of Michigan. About 12,000 of our members reside
in our service area, with 64 percent of our members residing
outside of our service area. Since receiving recognition in
1972, my Tribe has engaged in the arduous task of re-acquiring
land in our original territory to meet the needs of our
members.
The present-day trust land of my Tribe is just over 1,000
acres. Again, that is 1,000 acres. Earlier today you had
testimony on the volume of acres, we have just 1,000 acres.
Five hundred sixty-seven acres are located in six separate
sites within our treaty territory. All of these lands are held
in trust by the United States for the benefit of my Tribe and
are recognized as Indian Country subject to tribal and Federal
jurisdiction.
On these lands, we operate our tribal government and
administrative programs, housing, health, social services and
law enforcement and tribal businesses. Of the 1,600 acres that
are held in trust, only 125, or a mere 8 percent, have been
formally proclaimed as a reservation.
H.R. 2120 concerns one piece of land, approximately 65
acres, just south of St. Ignace, Michigan, that my Tribe
purchased in 1982. In 1983, we requested that the United States
proclaim this land Indian land under the Indian Reorganization
Act. The United States took this land into trust in 1983 but
never proclaimed it a reservation, despite the fact that my
Tribe twice requested that it be proclaimed a reservation. H.R.
2120 would correct this egregious oversight.
In May, 1988, my Tribe opened the Kewadin Shores Casino on
the 1983 parcel we acquired. Because we did not have a great
deal of resources at the time, we chose to open our Kewadin
Shores Casino in an existing building. Over time, we have added
on to that structure. However, this casino became an unwieldy
hodge-podge of add-ons. The old facility posed significant
health hazards for our 406 employees, because we have low
ceilings and poor circulation and also and also health hazards
due to cigarette smoke.
Given the limitations of this facility, we decided to build
a new facility. Looking at our land holdings, we determined
that it was not in our best interest to build on the same land
as our existing facility. Building the gaming space, lobby,
hotel space on the 1983 parcel would have meant that we would
have had to dislocate several tribal families and other
governmental programs on the small parcels of land that we do
have. Additionally, building on the same location would mean
significant loss in revenue during the construction.
The new building was instead built partially on the 1983
parcel and partially on a piece of land contiguous to the 1983
parcel, which my Tribe acquired and placed into trust in 2000.
The Indian Gaming Regulatory Act provides the land taken into
trust prior to October 17, 1988 is eligible for gaming if such
lands are located within or contiguous to the boundaries of the
reservation, on October 17, 1988. The 1983 parcel, while not
officially proclaimed a reservation, has always been treated as
a reservation by both my Tribe and the United States. These
lands were set aside by the United States for the use and
benefit of my Tribe. Our people live, work and receive services
on these lands. These lands are under civil and criminal
jurisdiction of the United States and my Tribe. To my
knowledge, there is no other criteria under Federal law that
distinguishes the difference between trust and reservation
status.
The inability to use our land as we believe it should be
used is entirely due to the inaction of the United States. My
Tribe requested on at least two occasions, in 1986 and April
1988, both prior to the enactment of IGRA, that the United
States proclaim the 1983 parcel a reservation. Prior to the
enactment of IGRA, the United States got so far as to inform
the local governments that a reservation proclamation was
impending. Again, prior to IGRA, the United States acknowledged
that a reservation request was impending.
As we understand it, only the ministerial act of publishing
the notice in the Federal Register was not done. In a
supportive document from Terry Virden, BIA Regional Director in
Minneapolis, the BIA acknowledges that my Tribe complied with
all the applicable procedures prior to the enactment of IGRA,
and that administrative oversight is likely to blame.
H.R. 2120 would do what the United States said it was going
to do in 1988. My Tribe has made a significant investment of
over $41 million to build our new casino to provide a safe and
healthy environment for our 406 employees and customers, so
that we can continue to be the economic engine in our area of
the State. We did this on land that is in trust and is
contiguous to land that is in trust since 1983.
The new replacement casino would not increase gaming and
would not add to the number of casinos now operating in
Michigan. However, according to the Department of Interior, the
only way that the Tribe can operate on this land without
negotiating with the State is through this legislation. We have
the support of the BIA and all local governments, and also the
Little Traverse Bay Band, our brother and sister tribe that is
near us, for this legislation. We would urge expedited
consideration of this legislation, so that we can finally use
our building for what it was intended.
Again, I would like to thank the Committee for its time and
attention to this matter, and now I would be happy to answer
any questions you might have of me.
[The prepared statement of Mr. Payment follows:]
Prepared Statement of Hon. Aaron Payment, Chairperson, Sault Ste. Marie
Tribe of Chippewa Indians
My name is Aaron Payment, I am the Chairperson of the Sault Ste.
Marie Tribe of Chippewa Indians (Sault Tribe). I would like to thank
the Committee for the opportunity to present this testimony on H.R.
2120. I would also like to thank the Michigan delegation for supporting
this legislation.
This bill is important to my Tribe because as I see it, it is
simply an effort to correct a failure of the federal government to
properly exercise its trust responsibility to my Tribe. Importantly,
the Federal District Court in Michigan agrees with us and has enjoined
the United States from enforcing its decision that the land in question
is not a Reservation under federal law. Sault Ste. Marie Tribe of
Chippewa Indians v. United States of America, 2:06-cv-276 (Western
District, MI) (2007). I attach a copy of this decision for the record.
Equally as significant the Department of the Interior has testified in
support of this legislation.
The Sault Tribe reestablished its relationship with the Federal
Government in 1972 after twenty long years of seeking federal
recognition. The Treaty of March 28, 1836, 7 Stat. 491, with the
Chippewa and the Ottawa Bands of Northern Michigan, recognized my
Tribe's aboriginal territory. Now, our service area includes Chippewa,
Mackinac, Luce, Schoolcraft, Alger, Marquette and Delta Counties. We
are a descendancy Tribe with the number of enrolled members now
approaching 33,000. Approximately 12,000 reside in the service area.
Since receiving recognition in 1972, my Tribe has engaged in a
systematic process to reacquire land in the Upper Peninsula of Michigan
within our service area to meet the needs of our members who live in
our traditional territory.
The present day trust land of my Tribe is just over a thousand
acres located in the City of Sault Ste. Marie and approximately 567
acres located in six separate sites within our treaty territory at
Manistique, Wetmore, St. Ignace, Hessel, Marquette and Escanaba,
Michigan. All of these lands are held in trust by the United States for
the benefit of my Tribe and are recognized as ``Indian Country''
subject to tribal and federal jurisdiction pursuant to the 18 U.S.C.
Sec. 1151.
On these lands, we operate our tribal government and administrative
programs, housing programs, health programs, social service programs,
law enforcement, and tribal businesses. Of the 1,600 acres held in
federal trust, only 124.8 acres have been formally proclaimed as
reservation. That is less than 8 percent. As is the case with many
tribes recognized in the last thirty years, we are a land poor tribe
when you consider the number of members per acre. Only 500 of our
33,000 members (or about 1.5 percent) reside on our reservation. Only 4
percent of those who reside in our service area (500/12,000) are able
to reside on the reservation given our limited land base.
H.R. 2120 concerns one piece of land (approximately 65 acres) that
the Tribe purchased in St. Ignace, Michigan. In 1983, we requested that
the United States take into trust and proclaim this land as a
reservation under the Indian Reorganization Act of 1924, 25 U.S.C.
Sec. Sec. 465, 467 (``1983 Parcel''). The United States took this land
into trust in 1983 but never proclaimed it a reservation. This is so
despite the fact that the Tribe twice requested that it be proclaimed a
reservation. H.R. 2120 would correct this egregious oversight.
In 1986, we opened the Kewadin Shores Casino on the 1983 Parcel.
Because we did not have a great deal of resources at this time, we
elected to open the Kewadin Shores Casino in an existing building.
After the enactment of the Indian Gaming Regulatory Act, my Tribe
entered into a compact with the State of Michigan in 1993. Over time we
added to the existing structure. However, this casino became an
unwieldy conglomeration of add-ons. This type of facility composition
posed significant health hazards to our 406 employees, because there
was poor air circulation and ventilation due to cigarette smoke and
concentrated population. There were also serious sewage problems with
this facility and its location. Finally, the internal maze like flow
within the building was not good for our customers and the outside
appearance was equally unappealing.
Given the limitations of this facility, we decided to build a new
building. In looking at our land holdings, the Board determined that it
was not in the Tribe's best interest to build on the same spot as the
old facility because building the gaming space, lobby and hotel space
on the 1983 parcel would mean having to dislocate several tribal
families and other governmental programs from the land. Additionally,
building on the same location would mean losing revenue during
construction. The casino was instead built on a piece of land
immediately adjacent to the old casino, which the Tribe acquired in
trust in 2000 (``2000 Parcel'').
As I understand it, the previous Administration believed that the
Tribe could do gaming on the 2000 Parcel, because a provision in the
Indian Gaming Regulatory Act that states that land taken into trust
after October 17, 1988 are eligible for gaming if ``such lands are
located within or contiguous to the boundaries of the reservation of
the Indian Tribe on October 17, 1988.'' 25 U.S.C. Sec. 2719(a)(1).
I am advised that under the Supreme Court precedent, the 1983
Parcel is a reservation. The Supreme Court has held that ``the
principal test'' for determining whether Indian land constitutes a
reservation is ``whether the land in question `ha[s] been validly set
apart for the use of the Indians as such, under the superintendence of
the government.' '' United States v. John, 437 U.S. 634, 648-49
(quoting United States v. Pelican, 232 U.S. 442, 449 (1914)). In
another case, the Court has said no ``precedent of this Court has ever
drawn the distinction between tribal trust land and reservations and
that the dispositive question was whether the ``area has been `validly
set apart for the use of the Indians as such, under the superintendence
of the Government.' '' Oklahoma Tax Commission v. Citizen Band
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991) (quoting
John). The 1983 Parcel is clearly land set aside for the use of Indians
and has been under the superintendence and jurisdiction of the United
States since 1983.
In 2003 the Tribe asked the Department of the Interior to concur
with this view. In February of 2006, we finally received an opinion
from the Interior Solicitor's Office stating that notwithstanding the
fact that the 1983 Parcel was set aside for the Tribe and is under the
jurisdiction of the United States, because the United States had never
proclaimed it a reservation, it did not meet the definition of a
reservation under federal law. Accordingly, the Acting Associate
Solicitor determined that the 2000 Parcel was not land contiguous to a
Reservation under IGRA.
By this time, we were close to finishing our new building, which
was to be a new hotel and casino with a state-of-the art air filtration
system. We held numerous meetings with Interior officials to urge them
to correct their decision and rectify a problem that was created by the
government's own inaction. This was to no avail. The NIGC warned us
that if we operated in the new building, they would issue a closure
order.
However, because the old facility was so unsafe, we elected to
invest $3 million and put the Kewadin Shores Casino in a temporary
building (or sprung structure), which was entirely on the 1983 Parcel,
but is adjacent to the new casino building on the 2000 Parcel. While
operating in the interim facility, the Tribe brought suit against the
United States, challenging Interior's determination that the 1983
Parcel was not a Reservation.
In August of 2007, the Federal District Court for the Western
District of Michigan granted the Tribe a preliminary injunction against
the United States and permitted the Tribe to open in the new facility.
The Court's basis for its preliminary ruling rested on a number of
factors one of them being the high likelihood that the Tribe would
prevail on the merits that the 1983 Parcel is a Reservation under
federal law. The other factor was the negative impact on the Tribe if
it could not operate in the new facility. We are now operating in the
new facility.
We are currently still in Federal Court. The briefing on the merits
on this case is now complete. We are hopeful for a positive outcome. I
know the question for the Committee is why do we need the legislation
if we are hopeful about our litigation?
First, there is no guarantee in any litigation. Second, this
litigation is very costly for the Tribe. Even if we win at the District
Court level, there will be an appeal. This legislation moots the need
for this costly litigation and will make things as they should have
been when the Tribe asked that this land to be proclaimed a Reservation
more than a decade ago.
Finally resolving this matter without further litigation is vital
to us. My Tribe spends 97 percent of our net revenue on membership
services to make up for the shortfall of federal funding. The loss of
income that could result if we are forced to close the new facility and
reopen in another structure will likely result in a cut in membership
services.
Moreover, tribal members and non-Indians alike in the local
community could lose their jobs at the Kewadin Shores Casino. Forty
five percent of all our casino employees are non-Tribal. Approximately
$13.5 million of our $30 million payroll supports jobs for those who
are not Tribal members, which underscores that this not simply an
Indian problem. Jobs we provide afford great benefits, like retirement
and health care. Jobs for which individuals pay taxes and re-circulate
excess income in an already stagnating economy. We currently employ
about 20 percent of the adult workforce of the local city of St.
Ignace--a tourism town. Job losses will result in additional burdens on
the Tribe's and State's social services as those who lose their jobs
will turn to Tribal and State support programs.
The inability to use our land as we believe it should be used is
entirely the fault of the United States. The Tribe requested two
different times (1986 and April, 1988--both prior to the enactment of
IGRA in October 1988) that the United States proclaim the 1983 Parcel a
reservation. In 1988, the United States got so far as to inform the
local governments that a reservation proclamation was ``impending.'' As
we understand it, only the ministerial act of publishing the notice in
the Federal Register was not done.
In a supportive document from Terry Virden, BIA Regional Director
in Minneapolis, the BIA acknowledges that the Tribe complied with all
applicable procedures prior to the enactment of IGRA in October of 1988
and that an administration oversight is likely to blame. Why this land
was not proclaimed a reservation, we do not know, but we do not believe
that the Tribe or the people of the Upper Peninsula should have to pay
for this failure.
H.R. 2120 would do what the United States said it was going to do
in 1988 and what it should have done in 1983 or even 1986. My Tribe has
made a significant investment of $41 million to build this new casino
to provide a safe and healthy place for our 406 employees and customers
and to continue to be the economic engine of this area of the State. We
did this on land that is held in trust and is contiguous to land that
has been in trust since 1983. The new replacement casino does not
increase gaming. Nor does it add to the number of casinos now operating
in Michigan. However, according to the Department of the Interior, the
only way that the Tribe can operate a casino on this land--without
negotiating with the state--is this legislation. We have the support of
the city, township and county governments, and the neighboring tribe of
just thirty miles-the Little Traverse Bay Band of Odawa Indians-for
this legislation.
Again, I would like to thank the Committee for its time and
attention to this matter.
Attachments
The Chairman. Mr. Chairman, thank you very much for being
with us today.
Next we will hear from the Honorable Benjamin Nuvamsa,
Chairman of the Hopi Tribe in Arizona. I regret that we do not
have a name tag in front of you, but welcome to the Committee,
and you may proceed, Mr. Chairman.
STATEMENT OF HON. BENJAMIN H. NUVAMSA, CHAIRMAN, HOPI TRIBE
Mr. Nuvamsa. [Greeting in native tongue.] Good morning,
Chairman Dorgan, members of the Senate Committee on Indian
Affairs.
The Hopi Indian Tribe appreciates the opportunity to
provide testimony on S. 531, the Repeal of the Bennett Freeze.
My name is Benjamin Nuvamsa, and I am Chairman of the Hopi
Tribe.
Before I begin, I would like to thank Senator McCain for
introducing this legislation and for his ongoing leadership on
this very important matter. The Hopi Tribe supports the
Committee's efforts through S. 531 to end the Bennett Freeze
and thereby assist the Hopi and Navajo people in resolving the
longstanding dispute between our people over lands of the 1934
Act reservation.
This repeal of the Bennett Freeze will close a long,
contentious period in the history of our tribes. We can now
move forward into what I hope will be a new era of cooperation
between the Hopi and Navajo, which is vital to both tribes. For
more than 100 years, the Hopi Tribe has worked to prevent the
loss of its lands through the much-larger Navajo Nation and to
preserve the rights of the Hopi to control its lands against
intrusion.
Beginning in 1958, the United States Congress enacted a
series of laws intended to lead to a final resolution of the
disputes between the Hopi and Navajo of the 1882 Hopi
Reservation. The Navajo-Hopi Land Settlement Act of 1974
authorized litigation between the Hopi and the Navajo to
determine the tribes' respective rights in both the 1882 and
the 1934 Act Reservation.
Incidentally, I wanted to make a point here that also my
grandfather, Peter Nuvamsa, Sr., was our first chairman of the
Hopi Tribe and he worked on this issue back in his day.
In November 2006, Secretary of the Interior Dirk Kempthorne
approved an intergovernmental compact between the Hopi Tribe
and the Navajo Nation, ending more than 40 years of litigation
between our tribes over lands within the 1934 Act Navajo
Reservation. In December, 2006, the United States District
Court for Arizona approved this compact.
The agreement between our tribes accomplishes several
important objectives. First, it ends the long, contentious and
expensive litigation between the Hopi and Navajo over the lands
of our respective reservations. Secondly, it grants to the
members of both tribes certain religious access and use rights
on the lands of the other.
Thirdly, the agreement secures to the Hopi religious
practitioners the right to gather eagles on parts of the Navajo
Reservation. And finally, this agreement ends the development
moratorium imposed under the Bennett Freeze. All that remains
is for Congress to amend the 1974 Act to repeat that section of
the Act that codified the freeze.
Passage of S. 531 will symbolize the close of a long and
difficult period in the history of our tribes, and will set the
stage for a new period of optimism for the Hopi and the Navajo
people in the area, one which will allow Hopis and Navajos to
pursue economic and resource development initiatives rather
than litigation.
In our cooperation, we hope to improve the quality of life
enjoyed by our people, while allowing access to and regular use
of sacred sites and shrines on our respective lands. We hope
that passage of S. 531 will lay the foundation for cooperation
not only between the Hopi and the Navajo, but also between the
two tribes and the United States; a foundation that will
support our joint efforts to develop the lands and resources
and the economies of our two tribes into the sustainable
homelands that the tribes and the United States intended them
to be.
Chairman Dorgan, let me thank you and the members of this
Committee for the opportunity on behalf of the Hopi Tribe to
testify concerning S. 531. We look forward to working with the
Committee to resolve any issues raised by this legislation and
moving it closer to passage.
I am happy to answer any questions that you may have. Thank
you very much.
[The prepared statement of Mr. Nuvamsa follows:]
Prepared Statement of Hon. Benjamin H. Nuvamsa, Chairman, Hopi Tribe
Good morning, Chairman Dorgan, members of the Senate Committee on
Indian Affairs.
The Hopi Indian Tribe appreciates the opportunity to provide
testimony on S. 531, the Repeal of the Bennett Freeze. My name is
Benjamin Nuvamsa, and I am Chairman of the Hopi Tribe.
Before I begin, I would like to thank Senator McCain for
introducing this legislation and for his ongoing leadership on this
very important matter.
The Hopi Tribe supports the Committee's effort through S. 531 to
end the Bennett Freeze and thereby assist the Hopi and Navajo people in
resolving the long-standing dispute between our people over the lands
of the 1934 Act Reservation. Congress' repeal of the Bennett Freeze
will close a long contentious period in the history of our tribes. We
can now move forward into what I hope will be a new era of cooperation
between the Hopi and Navajo, on issues vital to both tribes. For more
than 100 years, the Hopi Tribe has worked to prevent the loss of its
lands through the much-larger Navajo Nation and to preserve the rights
of Hopi to control its lands against intrusion.
Beginning in 1958, the United States Congress enacted a series of
laws intended to lead to a final resolution of the disputes between the
Hopi and Navajo of the 1882 Hopi Reservation. The Navajo-Hopi Land
Settlement Act of 1974 authorized litigation between the Hopi and the
Navajo to determine the tribes' respective rights in both the 1882 and
the 1934 Act Reservation.
Incidentally, I wanted to make a point here that also my
grandfather, Peter Nuvamsa, Sr., was our first chairman of the Hopi
Tribe and he worked on this issue back in his day.
In November 2006, Secretary of Interior Dirk Kempthorne approved an
Intergovernmental Compact between the Hopi Tribe and the Navajo Nation,
ending more than 40 years of litigation between our tribes over lands
within the 1934 Act Navajo Reservation. In December 2006, the United
States District Court for Arizona approved the Compact.
This agreement between our tribes accomplishes several important
objectives. First, it ends the long, contentious and expensive
litigation between the Hopi and Navajo over the lands of our respective
reservations. Secondly, it grants to the members of both tribes certain
religious access and use rights on the lands of the other. Thirdly, the
agreement secures to Hopi religious practitioners the right to gather
eagles on parts of the Navajo Reservation. And finally, this agreement
ends the development moratorium imposed by the Bennett Freeze. All that
remains is for Congress to amend the 1974 Act to repeal that section of
the Act that codified the freeze.
Passage of S. 531 will symbolize the close of a long and difficult
period in the history of our tribes and will set the stage for a new
period of optimism for Hopi and Navajo people in the area, one which
allows Hopi and Navajo to pursue economic and resource development
initiatives rather than litigation.
In our cooperation, we hope to improve the quality of life enjoyed
by our people, while allowing access to and regular use of sacred sites
and shrines on our respective lands. We hope that passage of S. 531
will lay a foundation for cooperation not only between the Hopi and
Navajo, but also between the two tribes and the United States; a
foundation that will support our joint efforts to develop the lands and
resources and the economies of our two tribes into the sustainable
homelands that the tribes and the United States intended them to be.
Chairman Dorgan, let me thank you and the members of this Committee
for the opportunity on behalf of the Hopi Tribe to testify concerning
S. 531. We look forward to working with the Committee to resolve any
issues raised by this legislation and moving it closer to passage.
I am happy to answer any questions that the members may have. Thank
you very much.
The Chairman. Mr. Chairman, thank you very much.
Finally, we will hear from Mr. Raymond Maxx, who is the
Navajo Nation Council Delegate and Chairman of the Navajo-Hopi
Land Commission, Navajo Nation Council, in Window Rock,
Arizona. Mr. Maxx, you may proceed.
STATEMENT OF RAYMOND MAXX, CHAIRMAN, NAVAJO-HOPI LAND
COMMISSION
Mr. Maxx. [Greeting in native tongue.] Thank you, Senator
Dorgan, for inviting me to come before this body. Senator
Murkowski, Senator Tester, good morning.
My name is Raymond Maxx. I am the Chairman of the Navajo-
Hopi Land Commission, which is the Navajo Nation Council entity
responsible for overseeing the Bennett Freeze matters. Thank
you for this opportunity to speak about S. 531, legislation
that would formally strike from the United States code of
provisions authorizing the development freeze in the western
portion of the Navajo Nation.
On November 3, 2006, the Navajo Nation and the Hopi Tribe
and Secretary Kempthorne signed an intergovernmental compact in
Phoenix, settling the litigation over the western portion of
the Navajo Nation that had been subject to Federal development
restriction, commonly referred to as the Bennett Freeze. It was
a wonderful day and signaled a new beginning for all parties.
Because my family was relocated twice by the Federal
Government and now lives in a former Bennett Freeze area, I
have first-hand knowledge of what conditions were like. When we
located to the Bennett Freeze area in the late 1970s, I don't
think my parents fully understood that they could not fix their
home in the Bennett Freeze; that you could not make additions;
that no Federal, Tribal or State programs could assist your
community through the building of infrastructure essential to
the health and well-being of any community. As a result, the
Bennett Freeze is locked into the poverty of 1966, when the
freeze was imposed.
For the families who live in the former freeze area, so
long as the authority for the freeze remains in the U.S. Code,
there also remains a fear that it could be reimposed. Passage
of S. 531 could send a powerful signal that all parties have
begun the process of moving on from the divisive disputes of
the past. It could also ensure that there are no ambiguous
interpretations which would lead to the re-imposition of the
Bennett Freeze development freeze.
In addition to passing S. 531, I would encourage the
Committee to hold field hearings on how the Bennett Freeze area
can be redeveloped and what level of Federal support should be
provided.
Thank you for this opportunity to speak on S. 531. Thank
you.
[The prepared statement of Mr. Maxx follows:]
Prepared Statement of Raymond Maxx, Chairman, Navajo-Hopi Land
Commission
My name is Raymond Maxx. I am the Chairman of the Navajo-Hopi Land
Commission, which is the Navajo Nation Council entity responsible for
overseeing Bennett Freeze matters.
Thank you for this opportunity to speak about S. 531, legislation
that would formally strike from the U.S. code the provisions
authorizing a development freeze in the western portion of the Navajo
Nation.
On November 3, 2006, the Navajo Nation, the Hopi Tribe and
Secretary Kempthorne signed an intergovernmental compact in Phoenix
settling the litigation over the western portion of the Navajo Nation
that had been subject of a federal development restriction, commonly
referred to as the Bennett Freeze. It was a wonderful day and signaled
a new beginning for all the parties.
Because my family was relocated twice by the Federal government,
and now lives in the former Bennett Freeze area, I have first hand
knowledge of what conditions are like. When we relocated to the Bennett
Freeze area in the late 1970s, I don't think my parents fully
understood that you could not fix your home in the Bennett Freeze; that
you could not make additions; that no Federal, Tribal or State programs
could assist your community through the building of infrastructure
essential to the health and well-being of any community. As a result,
the Bennett Freeze was locked into the poverty of 1966, when the freeze
was imposed.
For the families who live in the former Bennett Freeze area, so
long as the authority for the Freeze remains in the U.S. Code, there
also remains a fear that it could be reimposed. Passage of S. 531 would
send a powerful signal that all parties have begun the process of
moving on from the divisive disputes of the past. It would also ensure
that there are no ambiguous interpretations which could lead to the re-
imposition of the development freeze.
In addition to passing S. 531, I would encourage the Committee to
hold a field hearing on how the Bennett Freeze area can be redeveloped
and what level of Federal support should be provided.
Thank you for this opportunity to provide testimony on S. 531.
Attachment
The Chairman. Mr. Maxx, thank you very much.
Finally, we will ask Mr. Gidner to comment on the other
three pieces of legislation that have been testified to in this
panel. Mr. Gidner?
Mr. Gidner. Thank you, Mr. Chairman. This is the happier
part of my testimony, because the Department supports all three
of these bills.
I will say, if I may preface my comments regarding H.R.
2120, on the Sault Ste. Marie, I am myself a proud member of
the Sault Ste. Marie Tribe. I am recused from this decision,
but I will state the Department's position on the record. We
support the bill with one clarifying amendment which is in the
written testimony. If I could beg your forbearance, if you have
any questions on this bill, if you could submit them in
writing, because I am recused from the matter and really should
not be answering questions about it in this forum.
The Chairman. Is that 2120?
Mr. Gidner. Yes, 2120. I am a member of the Sault Ste.
Marie Tribe.
The Chairman. Thank you.
Mr. Gidner. Regarding H.R. 2963, on the land into trust for
Pechanga, we support that bill. We do have some comments on it.
The bill requires the Bureau of Land Management to complete a
new survey within 180 days of enactment. We recommended that be
changed to say as soon as practicable. The BLM does have a
process and surveys in the queue. We would prefer this one join
the queue rather than jump to the front, in fairness to the
other survey work that needs to be done.
There are also improvements on the land, and we would
suggest that any improvements be transferred to the Tribe in
fee and that the Department of Interior is not responsible for
any improvements that may be transferred along with the lands.
Finally, a minor matter, but the bill references the MOU
between the Tribe and the U.S. Fish and Wildlife Service.
Bureau of Land Management was also signatory to that MOU and we
would recommended that the bill be amended to reflect that.
Finally, S. 531, repealing the Bennett Freeze, we
wholeheartedly support that. The Tribes, Hopi and Navajo,
should be commended for the hard work and negotiations that
have gone into that. They put aside decades of dispute, came up
with a solution and everything that needs to happen has
happened except for the repeal of this section. So we
wholeheartedly support that.
That concludes my testimony, Mr. Chairman.
[The prepared statement of Mr. Gidner follows:]
Prepared Statement of Jerry Gidner, Director, Bureau of Indian Affairs,
U.S. Department of the Interior
Good morning, Chairman Dorgan, Vice Chairwoman Murkowski, and
Members of the Committee. I am pleased to be here today to provide the
Department of the Interior's (Department) position on H.R. 2120, a bill
to direct the Secretary of the Interior to proclaim as reservation for
the benefit of the Sault Ste. Marie Tribe of Chippewa Indians a parcel
of land now held in trust by the United States for that Indian tribe;
S. 2494, the ``Spokane Tribe of Indians of the Spokane Reservation
Grand Coulee Dam Equitable Compensation Settlement Act''; H.R. 2963,
the ``Pechanga Band of Luiseno Mission Indians Land Transfer Act of
2007''; S. 1080, the ``Crow Tribe Land Restoration Act''; and S. 531, a
bill to repeal section 10(f) of Public Law 93-531, commonly known as
the `Bennett Freeze'.
H.R. 2120
We support the purpose of H.R. 2120, a bill to proclaim as
reservation for the benefit of the Sault Ste. Marie Tribe of Chippewa
Indians a parcel of land now held in trust by the United States for
that Indian tribe. Currently, the matter is before the court as Sault
Ste. Marie Tribe v. United States, Civ. No. 2:06-CV-276, and if
Congress passes the legislation, it would put an end to the litigation.
The Sault Ste. Marie Tribe (Tribe) is located in the far northern
section of Michigan and has two reservations. The Tribe also has
property the Department holds in trust for them that is not considered
reservation land for purposes of the Indian Gaming Regulatory Act
(IGRA). One such parcel is the subject of H.R. 2120, on which there is
Indian housing, some other tribal facilities, a now-closed casino, and
a casino housed in a temporary structure that has since been moved to
another location. In 1988, the Tribe approached the Department to have
the land proclaimed a reservation, along with five other parcels, but
its paperwork was not completed prior to the enactment of IGRA.
The Tribe seeks to game on adjoining property taken in trust in the
year 2000. It built a new casino on this parcel. The Tribe was advised
by the Department and the National Indian Gaming Commission that they
would need to apply under IGRA for a two-part determination in order to
game on the parcel. If Congress deems the first parcel to be
reservation as of April 1988 for purposes of IGRA, then the tribe can
game in its new casino under an exception in IGRA.
We suggest amending the legislative language to reflect that ``the
property shall be deemed a reservation as of April 19, 1988, for
purposes of the Indian Gaming Regulatory Act.'' We will be happy to
work with the Committee staff on amending the legislation to reflect
the necessary changes.
S. 2494
The Department opposes S. 2494, the ``Spokane Tribe of Indians of
the Spokane Reservation Grand Coulee Dam Equitable Compensation
Settlement Act''. The Administration has worked with the Spokane Tribe
over the last several years on this issue. We believe negotiations to
correct several serious issues should continue.
S. 2494 would provide compensation to the Spokane Tribe for the use
of its land for the generation of hydropower by the Grand Coulee Dam.
Specifically, S. 2494 would require the Secretary of the Interior,
subject to the availability of appropriations, to deposit $99.5 million
over five years, $23,900,000 for Fiscal Year 2008 and $18,900,000 for
the following four fiscal years, into a trust fund held in the U.S.
Treasury and maintained and invested by the Secretary of the Interior
for the Spokane Tribe to be known as the ``Spokane Tribe of Indians
Settlement Fund''. S. 2494 would also transfer certain land and
administrative jurisdiction from the Bureau of Reclamation (BOR) to
Bureau of Indian Affairs (BIA) for the Spokane Tribe. The land
transferred would be held in trust for the Spokane Tribe and would
become part of the reservation.
The Spokane Tribe has not brought forward a legal claim that would
warrant this type of settlement. The Administration questions whether
the Tribe has or could bring any legal claim that would entitle it to
compensation as contemplated under the bill. In light of the lack of
any pending legal claim, the Administration does not believe this
legislation is currently justified as a settlement of claims.
The Department is also concerned with transferring land and
jurisdiction from the Bureau of Reclamation to the Bureau of Indian
Affairs for the Tribe absent a prior written agreement to fully address
Reclamation's and National Park Service's future ability to manage
Grand Coulee Dam, Lake Roosevelt, and the Columbia Basin Project. Such
a written agreement should clearly address a number of issues
associated with transferring land into trust status, such as future
liability for damages from shoreline erosion and heavy metal
contamination in sediments from upstream mining, as well as issues
related to land and recreation management, including consideration of
the existing five-party Lake Roosevelt Cooperative Management
Agreement. While under the present draft Reclamation would be granted a
perpetual easement to operate the Columbia Basin Project, it is
imperative that the parties specifically reach agreement on the details
of the lands and easement rights involved and how the transferred areas
will be managed prior to the passage of this legislation. At a minimum,
such an agreement should be required prior to the actual transfer
taking place.
H.R. 2963
This legislation directs the Secretary of the Interior to transfer
three parcels of public land totaling approximately 1,178 acres in
Riverside County, California, currently managed by the Bureau of Land
Management (BLM), into trust status for the benefit of the Pechanga
Band of Luiseno Mission Indians (Tribe).
The Department supports the bill, and recommends certain technical
and clarifying amendments pertaining to an accurate legal description,
surveys, valid existing rights, and improvements. We look forward to
working with the Committee to resolve these concerns.
The BLM has worked with the Tribe over the past several years
concerning their interest in acquiring land to add to their
reservation. These lands are covered by BLM's 1994 South Coast Resource
Management Plan (RMP), which does not identify the parcels for
disposal. The Department understands that the Tribe has enacted a
resolution committing the Tribe to conserving the parcels' cultural and
wildlife values. In addition, in 2005, the Tribe entered into a
Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife
Service and the BLM, which states that the Tribe will manage the lands
for conservation purposes, which this bill reflects. Recognizing the
Tribe's interest in obtaining the land for cultural and conservation
purposes, the BLM would be supportive of amending its land use plan to
enable the transfer to proceed. The transfer process could take several
years to complete, and the Tribe has sought this legislation to obtain
the parcels more quickly through the legislative process.
The first parcel is nearly 20 acres and contains significant
cultural properties, including burials, of high importance to the
Tribe. It is an isolated public land parcel characterized by rolling
coastal sage scrub and surrounded by private, generally residential,
lands. In response to potential threats to the cultural resources of
the parcel, the BLM instituted a Public Land Order (No. 7343) in 1998
that withdrew the entire parcel from surface entry, mining, mineral
leasing, and mineral material sales. There are no other encumbrances,
including mining claims, which are known to exist on the lands. A
Memorandum of Understanding between BLM and the Tribe was initiated in
2001, which outlines cooperative management of the parcel, including
preservation of its cultural resource values. The Tribe owns and
maintains an adjacent parcel of land containing another portion of the
Pechanga Historical Site.
The second, and much larger parcel, is slightly more than 958 acres
and is adjacent to the Tribe's reservation. These lands are included in
the Western Riverside County Multi-Species Habitat Conservation Plan
and the Fish and Wildlife Service (FWS) has found them to be
significant for their connectivity with rivers and as wildlife
corridor. The Tribe and others were consulted on the Plan, and these
wildlife values are encompassed in the Tribal resolution referenced
above. This rugged parcel is characterized by a dense mix of oak
woodlands, chaparral and coastal sage scrub, and slopes throughout the
parcel are steep and eroded. The parcel also includes a service road
right-of-way, as well as a 10-inch waterline and water tank that was
granted for 30 years to the Rainbow Municipal Water District in 1983.
No other encumbrances, including mining claims, are known to exist
within this parcel. To resolve a trespass issue, 12.82 acres will be
sold to San Diego Gas & Electric for fair market value in accordance
with the Uniform Appraisal Standards for Federal Land Acquisitions and
the Uniform Standards of Professional Appraisal Practice.
The third parcel is 200 acres, which is included in the Multi-
Species Habitat Conservation Plans of Western Riverside County. The
resources in this parcel are similar to those in the second parcel.
The Department does have some concerns with the bill. The bill
requires the BLM to complete a new survey within 180 days of enactment.
We recommend that the lands to be transferred be surveyed ``as soon as
practicable,'' rather than within 180 days, as currently required by
the bill. Additionally, we recommend language be added to the bill that
specifies that any improvements, appurtenances, and personal property
will be transferred to the Tribe in fee at no cost and the Department
of the Interior is not responsible for any improvements, appurtenances,
and personal property that may be transferred along with the lands. The
Department feels this change is necessary since the federal government
does not have a fiduciary obligation to repair and maintain any
acquired improvements. Finally, the bill references the MOU between the
Tribe and the U.S. Fish and Wildlife Service. The BLM was also a
signatory of the MOU and we recommend the measure reflect that.
The Department has had a very cooperative working relationship with
the Tribe on the proposed land transfer and supports the bill's
enactment with these modifications.
S. 1080
S. 1080 would require the Secretary to develop a program to acquire
interests in land from eligible individuals within the Crow Reservation
in the State of Montana and to hold those acquired interests in trust
for the Crow Tribe (Tribe). The Department is very supportive of the
goals to reunify the Tribe's reservation land and encourage the Tribe
to manage its own assets; however, the bill raises considerable
concerns as drafted. Therefore, the Department cannot support the bill
at this time.
We are concerned with the bill regarding its definitions, timing,
size, and mechanisms. We look forward to working with the Committee to
address our concerns with the bill and on ways to create a viable
program.
S. 531
We support S. 531, a bill to repeal section 10(f) of Public Law 93-
531, commonly known as the ``Bennett Freeze.''
On November 3, 2006, Secretary Kempthorne, Navajo Nation President
Joe Shirley Jr. and Hopi Vice Chairman Todd Honyaoma signed an historic
Navajo-Hopi Intergovernmental Compact, resolving a 40-year-old dispute
over tribal land in northeastern Arizona.
The compact put an end to the ban on construction in the disputed
area that was imposed by U.S. Commissioner of Indian Affairs Robert
Bennett in 1966. Commonly known as the ``Bennett Freeze,'' this ban has
greatly affected the use of this land and has been a severe hindrance
to the people who live there.
The agreement also provides that the United States Fish and
Wildlife Service will study eagle populations in the disputed area and
regulate the use of eagles depending on the size of the population. The
Hopi Tribe and the Navajo Nation, which were in litigation since 1958
concerning ownership of nearly 10 million acres on their reservations
in northeast Arizona, also have agreed to dismiss litigation, to
release each other from claims, and to share funds collected for the
use of parts of the disputed property that are held by the Department
of the Interior.
While the agreement put an end to the ban on construction in the
disputed area, the agreement did require the approval of the judge
adjudicating the litigation between the Hopi Tribe and the Navajo
Nation. The final requirement is to repeal that section of Public Law
93-531 (25 U.S.C. 640(d)-9(f)), from current law in order to fully lift
the ``Bennett Freeze.''
Mr. Chairman, this concludes my statement and I will be happy to
answer any questions you may have.
The Chairman. Mr. Gidner, thank you very much. We
appreciate your being here.
Let me go back to the point you made with respect to the
Crow Reservation. Tell me how long there have been discussions
between Interior and the Crow Nation with respect to
fractionation.
Mr. Gidner. I am not sure exactly. It has been at least two
or three years, I believe.
The Chairman. Tell me again the objection of the Interior
Department to this legislation.
Mr. Gidner. In more detail, it is not an objection to the
purpose, it is not an objection overall to the mechanism. I
guess it is objections to the details. A small matter is the
timing. The bill prohibits loans under this program after a
certain date in 2012. We believe that needs to be updated. It
is now already 2008. We don't think the program could be
completed in that amount of time. Again, that is a minor timing
issue.
There are some concerns regarding the size of the loans,
the loan program that is available. It may be better to break
it into phases, so that the liability for the Government is not
potentially so large. At one time, I think it was around $380
million that was discussed in the bill.
We also have questions about some of the definitions, for
example, reasonable purchase price. It is unclear how that
translates into the need for an appraisal and exactly how that
would work. If appraisals would be required to be provided by
the Department of Interior, that could be problematic due to
our funding constraints and backlog of appraisal needs.
The Chairman. H.R. 2120, do you support that generally?
Mr. Gidner. Yes, the Department supports that, with one
clarifying change which is set forth in the written testimony.
The Chairman. Chairman Macarro, you said that you had been
working with the BLM for 15 years to place the lands that you
have described into trust for the Tribe. What, in your opinion,
has taken so long to have these lands put into trust? Why has
it taken that long?
Mr. Macarro. It was actually 1990 when they initiated, at
least in Southern California, involving this parcel, the first
scoping hearing for lands potentially to be put on disposal. I
think the pace of these things as they move characteristically
through the BLM, with regard to transfers of land, tracts of
land, my understanding is that the parcel is not slated for
disposal officially. At previous times it has been and it
hasn't been. So it has gone on and off the list. Just working
through the administrative process, with different directors,
area directors for the BLM, out of Palm Springs and a decade
and a half of dealings, it is the pace of slow change.
The Chairman. We are familiar with the word slow.
[Laughter.]
Mr. Macarro. Maybe deliberate.
The Chairman. We hear it a lot in testimony before this
Committee.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Mr. Gidner, I wanted to ask you, because you have indicated
that you support, the Administration supports all three of the
bills that we have in front of us. With regard to S. 531, I
think you used the words ``wholeheartedly support.'' But does
the Department intend to devote any resources towards assisting
the families or otherwise helping to develop this Bennett
Freeze area? What is the intention within the agency?
Mr. Gidner. I don't believe we have any budgeted resources
for that at this time, Senator.
Senator Murkowski. Is that something you would consider?
Mr. Gidner. We would certainly consider that for the budget
process, yes.
Senator Murkowski. Chairman Payment, in your comments, Mr.
Gidner has indicated that he can't give further commentary to
this because he is conflicted. I appreciate that. If I
understood all that you said, at some point during the time
when you had made two previous requests for clarification of
this legal status of the land, at one point in time they said
that the approval was pending and that at a later point in time
there was an admission, if you will, of administrative
oversight. Is that, in your opinion, what has caused this
delay? It has been just simply that, an administrative
oversight, and it is not because of particular issues that may
have been resolved that you think with this, we might be able
to clear it up?
Mr. Payment. Yes. It is kind of puzzling, because I am a
student of political science, and I have looked through this
very carefully. We pulled together all of our resolutions and
did the research through documents the BIA had. Everything
happened, the testimony happened, the local hearings happened
with the community to see what the effects would be on the
community. And the only thing that was left to happen was the
reservation proclamation being published in the Federal
Register.
I think it is because of that we have been able to show
that and work closely with the BIA that they acknowledge that.
They don't really know why it didn't happen. So the only
shortcoming is they don't believe they have the authority to do
it this many years later. They encouraged us to actually write
a bill.
We also have legislation and we are prevailing in that
legislation, but it seems an unnecessarily adversarial role to
be suing the Department of Interior on this situation when it
can be resolved through legislation. We have litigation, I
meant.
Senator Murkowski. Right. Good.
And this is a question to both Chairman Nuvamsa and to
Delegate Maxx. Should we be successful with the legislation in
lifting this freeze, what do you hope or what kinds of
development are you looking to for the Hopi and the Navajo
Tribes, if we are successful with this?
Mr. Nuvamsa. Thank you, Senator Murkowski.
The area is isolated. One of the first things we need to do
is develop the infrastructure. The people living out there,
roads are in terrible shape. The utilities and so on.
Senator Murkowski. There are roads in the area, though?
Mr. Nuvamsa. Leading up to there. As people begin to occupy
this area, we are going to need to have infrastructure
development. Because again, this area is isolated. I think that
would be the beginnings of it, that we have some plans on the
future use of it, but because of the freeze and so on, we have
been unable to do so at this point. But I see people beginning
to occupy and be able to, again, enjoy the same quality of life
that everybody enjoys by development, the infrastructure,
utilities and so on.
Senator Murkowski. Mr. Maxx, did you want to add anything
to that?
Mr. Maxx. Thank you, Senator. Along with infrastructure,
the basic need of housing, we are really lacking housing. For a
long time, you couldn't even repair a home unless you had
permission. And the process took at least five years to get a
door or a roof fixed.
Senator Murkowski. Even to make repairs to existing
infrastructure, you couldn't fix your roof under this freeze?
Mr. Maxx. That was prohibited under the freeze. So basic
homes, roads, infrastructure and Navajo Nation is like 30 years
or 20 years behind mainstream society. The Bennett Freeze area
is like 30 or 40 years behind Navajo. So that would show you
what kind of situation the former Bennett Freeze area is in,
after 40 years of Bennett Freeze, it really needs a lot of
homes and infrastructure and improvements to catch up with the
mainstream.
Senator Murkowski. Thank you. I appreciate the responses
and I appreciate the testimony of all of you this morning.
Thank you, Mr. Chairman.
The Chairman. Senator Tester.
Senator Tester. Thank you, Mr. Chairman.
I have one question for Chairman Payment. Just a
clarification about the 65 acres that is under trust, correct?
Does it physically border your current reservation? I thought I
heard you say that, but I just wanted to make sure that is the
case.
Mr. Payment. Yes, it does. We actually had an option on
both parcels when we first looked at buying it. But we became
recognized in 1972, we didn't have gaming until 1985, we didn't
have resources to buy all of the land. So we optioned both
parcels, but we purchased one piece. It is contiguous, and you
can see the not in my backyard, we are not in anybody's
backyard. We are about three or four miles outside of the city
proper.
We have their support, but we don't abut anybody else's
property. It is contiguous to our existing trust land.
Senator Tester. Okay, thank you.
Mr. Gidner, you had mentioned three things that you had
concerns about, the 2012 time line, the size of the land I
think who determines reasonable purchase price, if I heard you
correctly. Are there any other concerns?
Mr. Gidner. There have been questions raised about whether
a direct loan program is appropriate as opposed to some sort of
guaranteed loan program, which we already have. So I would just
add that.
Senator Tester. What you already have in the form of what?
Mr. Gidner. We have a guaranteed loan program already.
Senator Tester. For this purpose?
Mr. Gidner. Well, not specifically for this purpose, for
economic development generally.
Senator Tester. Okay. The 2012 time line, what kind of time
line does the Department think it should be at?
Mr. Gidner. Originally, I believe we had five years. If the
amount of money was the same, it is possible for it to be done
in five years, that would be after the enactment of the bill.
Senator Tester. I think that could be easily fixed. How
about the reasonable purchase price? Would you have a problem
if that was done, if the Tribe were to contract that out
through their administrative costs?
Mr. Gidner. I don't think so. We have a problem because we
have a large backlog of appraisals or we have an appraisal
process that takes a period of time and we have a certain
number of people to do it.
Senator Tester. So if the Tribe were to get a neutral party
and have them do the appraisal, the Department of Interior
would accept that appraisal?
Mr. Gidner. I think we probably would, Senator.
Senator Tester. Okay, good.
The size of the loan, and 380 million bucks is a lot of
dough, no mistake about it. Are you familiar with Cobell?
Mr. Gidner. Yes, sir.
Senator Tester. Do you agree with the Chairman's statement
that 10 percent of the fractionated land is on Crow?
Mr. Gidner. I have no reason to doubt that. I know they
have a large percentage of fractionated land.
Senator Tester. Well, I will just tell you my perspective.
And you can take this back to whoever you want, but I will just
tell you my perspective. My perspective is that you have a
chairman and you have a tribe that wants to fix this problem. I
think they have put a very common-sense, fair proposal out that
is cost-effective. You can run the numbers on Cobell and you
can run the numbers on this. Cobell hasn't happened and this
hasn't happened either.
I think if I was the head of your agency, I would be
grabbing that guy sitting right there right around the
shoulders and hugging him and saying, you know what, we are
going to get this done. I really would. Three hundred eighty
million is a lot of money, but you are talking 1.7 million
acres and you can solve a major problem and set an example and
get this fractionated land, get us on the road to solving this
fractionated land problem. I think it is the right thing to do,
and if I were you guys, I would be aggressively pursuing this
as an option. I would be telling us that we need to have this
happen, we need to pass this bill, because this is the right
thing to do and now.
I am telling you, I do not see the problems that you put
out as being--I understand them. I agree with them for the most
part and I think they could be easily, very easily remedied.
But the size and the fact that it is a loan program and the
fact that we are going to solve these problems with this, I
just think that it is the right thing to do.
The last thing I would ask you is this. When you head back
to the Department, if there are further objections to 1080, I
would like to have your response in writing on those, and to
what extent, and your suggestions for solving those. I think
Senator Baucus and myself would love to have those, as sponsors
and co-sponsors of the bill.
Thank you.
The Chairman. Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman.
I think Senator Tester touched on many of the things I was
interested in, in terms of the five-year time line and the
difficulties with an appraisal. But you mentioned something
about Government liability. I am an orthopedic surgeon, I know
a lot about liability. Could you kind of go into a little bit
what you are talking about in terms of the Government's
liability here?
Mr. Gidner. Certainly. As I understand the mechanism of the
bill, the Treasury Department would loan money to the Secretary
of Interior, who would loan it to the Tribe or a corporate
entity set up by the Tribe. The Tribe would pay that money
back, the Secretary would pay the money back to Treasury.
If the Tribe did not pay the money back to the Secretary of
Interior, the Secretary of Interior still must pay back the
Secretary of Treasury. I am not at all suggesting the Crow
Tribe would not pay back, but if that did occur, the Secretary
of Interior would have a liability to the Treasury Department
for monies that we would not have at that point.
Senator Barrasso. So just because it goes through another
department is the issue? Because it is the same thing with any
loan that needs to be paid somewhere.
Mr. Gidner. Basically, yes.
Senator Barrasso. Thank you.
No further questions, Mr. Chairman.
The Chairman. Mr. Macarro, I want to ask a question about
the allegations dealing with the Endangered Habitats League. I
don't know all the facts surrounding it. What is your response
to allegations on that subject?
Mr. Macarro. Could you be a little bit more specific about
the allegations?
The Chairman. My understanding is there have been questions
raised about endangered habitat. Is that correct?
Mr. Macarro. I think that allegation refers to a previous
transaction, not this one. I am not going to try to make their
case for them. But we constructed a golf course on some
previously acquired land that went into trust, it was through
administrative process. I think they have concerns that despite
the representations we are going to make here with regard to
this piece of land, what is to stop us from doing that again.
All I can say is that they are two different transactions
altogether. We are taking some unusual measures with this
proposed transaction, this proposed bill today, restricting us
in agreement with the Fish and Wildlife Service to transfer the
lands. We are stipulating that they will only be used for
protection, preservation and maintenance of the archeological,
cultural and wildlife resources thereon, that is actually
quoting from the bill language.
The Chairman. I was referring to the Endangered Habitats
League of Southern California, that had raised questions. But
your response is that the bill itself has drafted responses to
those questions?
Mr. Macarro. It does. It should allay those concerns. They
have never worked with tribes, per se, and I think they have
issues with self-determination powers that tribes have when
they chose to do things that they don't think are in the public
interest.
The Chairman. I understand.
Let me thank all of you for being here to testify. Mr.
Gidner, thank you for coming down. We will be considering these
pieces of legislation that we have heard today at some future
business meeting, we hope soon. I thank all of you for taking
the time to come before the Committee.
We will keep the hearing record open for 14 days following
today's hearing, so that additional submission of statements
will be accepted by our Committee. This hearing is adjourned.
[Whereupon, at 10:50 a.m., the Committee was adjourned.]
A P P E N D I X