[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




                                  
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