[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
    H.R. 3697 AND H.R. 3742, TO AMEND THE ACT OF JUNE 18, 1934, TO 
 REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND 
                     INTO TRUST FOR INDIAN TRIBES.

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


                          LEGISLATIVE HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                      Wednesday, November 4, 2009

                               __________

                           Serial No. 111-41

                               __________

       Printed for the use of the Committee on Natural Resources



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                               index.html
                                   or
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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, November 4, 2009......................     1

Statement of Members:
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................    13
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     3
    Herseth Sandlin, Hon. Stephanie, a Representative in Congress 
      from the State of South Dakota.............................    14
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     4
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Arcuri, Hon. Michael, a Representative in Congress from the 
      State of New York..........................................     6
        Prepared statement of....................................     8
    Blumenthal, Hon. Richard, Attorney General, State of 
      Connecticut, Hartford, Connecticut.........................    47
        Prepared statement of....................................    49
    Cole, Hon. Tom, a Representative in Congress from the State 
      of Oklahoma................................................     9
        Prepared statement of....................................    11
    Iyall, Hon. William, Chairman, Cowlitz Indian Tribe, 
      Longview, Washington.......................................    27
        Prepared statement of....................................    28
        Background/History of Cowlitz Tribe......................    31
    Kanji, Riyaz, Kanji & Katzen, PLLC, on behalf of The Grand 
      Traverse Band of Ottawa and Chippewa Indians, Ann Arbor, 
      Michigan...................................................    61
        Prepared statement of....................................    63
    Klineburger, Hon. Sandra, Chairwoman, Stillaguamish Tribe of 
      Indians, Arlington, Washington.............................    36
        Prepared statement of....................................    38
        Native American Treaty between the United States and the 
          Dwamish, Suquamish, et al..............................    42
    Laverdure, Donald, Deputy Assistant Secretary--Indian 
      Affairs, U.S. Department of the Interior, Washington, D.C..    15
        Prepared statement of....................................    21
    Mabee, Hon. Janice, Chairman, Sauk-Suiattle Indian Tribe, 
      Darrington, Washington.....................................    33
        Prepared statement of....................................    35
    Woodside, Steven M., Sonoma County Counsel, on behalf of the 
      California State Association of Counties, Sacramento, 
      California.................................................    53
        Prepared statement of....................................    54
        CSAC Congressional Position Paper on Indian Affairs......    59
                                     


LEGISLATIVE HEARING ON H.R. 3742, TO AMEND THE ACT OF JUNE 18, 1934, TO 
 REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND 
 INTO TRUST FOR INDIAN TRIBES; AND H.R. 3697, TO AMEND THE ACT OF JUNE 
18, 1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO 
                TAKE LAND INTO TRUST FOR INDIAN TRIBES.

                              ----------                              


                      Wednesday, November 4, 2009

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:00 a.m., in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, II, 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Hastings, Kildee, Boren, 
Sablan, Heinrich, Kind, Inslee, Herseth Sandlin, Young, 
Gallegly, Smith and Lummis.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order, please.
    Today the Committee meets on two bills, H.R. 3742 and H.R. 
3697, each introduced by Co-Chairmen of the House Native 
American Caucus. H.R. 3742 was introduced by my good friend and 
fellow classmate, a Representative from Michigan, Mr. Dale 
Kildee, whose support for Indian tribes and tribal sovereignty 
is second to none in the Congress. H.R. 3697 was introduced by 
our colleague, Tom Cole, who has also made a mark for himself 
in his support of Native American issues, he being a Native 
American himself.
    Earlier this year, the Supreme Court issued a decision in 
Carcieri v. Salazar that prohibits the Secretary of the 
Interior from taking land into trust for tribes that were not 
``under Federal jurisdiction'' in 1934, 75 years ago, a moment 
frozen in time. In my view, this decision strikes at the heart 
of tribal sovereignty, the ability to provide governmental 
services for tribal members and the exercise of tribal 
jurisdiction over its land.
    A land base is necessary for all governments, including 
Indian tribes. But for Indian tribes, the land must be placed 
into trust in order for the tribe to realize the fullest 
benefits of the land. As a result of the Supreme Court 
decision, however, a dark cloud hangs over Indian Country. It 
is a cloud that may cast a pallor over the land that is used 
for housing, protection of sacred sites, to build schools, to 
build health clinics, to provide for economic development and 
for many other purposes.
    Such confusion denies Indian tribes and tribal members 
their rights guaranteed by treaties, statutes and executive 
orders. Because of this decision, many tribes may face 
unnecessary litigation and other delays that tribes cannot 
afford. I would also observe that, although the Court did not 
define ``under Federal jurisdiction,'' there have been attempts 
by some to equate that phrase with formal Federal recognition.
    Let me make this clear. Congress' constitutional authority 
over Indians is not conditioned on formal Federal recognition. 
Whether or not Congress decides to exercise our jurisdiction 
over an Indian tribe does not mean that we do not have the 
power to do so. If the group is an Indian tribe, it is under 
our authority, as vested by the Constitution. As such, Congress 
possesses jurisdiction over any tribes that exist, whether 
formally recognized or not by the Federal government. Attempts 
to equate the two concepts are clearly an attack on Congress' 
plenary authority over Indians.
    I look forward to all of our testimony today and especially 
the Administration's views on these bills and about the actions 
it has taken to ensure that the land-into-trust process 
continues in a timely fashion.
    I will now recognize the Ranking Minority Member, the 
gentleman from Washington, Mr. Hastings.
    [The prepared statement of Chairman Rahall follows:]

       Statement of The Honorable Nick J. Rahall, Ii, Chairman, 
                     Committee on Natural Resources

    Today, the Committee meets on two bills, H.R. 3742, introduced by 
my friend, Mr. Kildee, the co-Chairman of the House Native American 
Caucus and a long time champion of tribal sovereignty, and H.R. 3697, 
introduced by Mr. Cole. Both bills would amend the Indian 
Reorganization Act to reaffirm the Secretary of the Interior's 
authority to take land into trust for Indians.
    Earlier this year, the Supreme Court issued a decision in Carcieri 
v. Salazar that prohibits the Secretary of the Interior from taking 
land into trust for tribes that were not ``under Federal jurisdiction'' 
in 1934.
    Although the Court did not define ``under Federal jurisdiction,'' 
there have been attempts by some to equate that phrase with Federal 
recognition. Let me make this clear, all Indian tribes regardless of 
when they were Federally recognized in the sense that they are 
receiving Federal benefits are and always have been under Federal 
jurisdiction. Any statements to the contrary are clearly an attack on 
Congress' plenary authority over Indians. Our plenary authority over 
Indians is not conditioned on formal Federal recognition.
    The issue before us today is about tribal sovereignty, the ability 
to provide governmental services for tribal members, and the exercise 
of tribal jurisdiction over its land. A land base is necessary for all 
governments, including Indian tribes. But for Indian tribes, the land 
must be placed into trust in order for the tribe to realize the fullest 
benefits of the land.
    Unfortunately, some are attempting to paint this issue as being 
about gaming and are trying to tie in amendments to the Indian Gaming 
Regulatory Act. Yes, some tribes use trust land for gaming but most 
often, the land is used for housing, protection of sacred sites, to 
build schools and clinics, to provide for economic development, and for 
many other purposes. We must be careful to not confuse the two issues.
    The attempts by opponents to confuse the issues is denying Indian 
tribes and tribal members their rights guaranteed by treaties, 
statutes, and executive orders. Because of this decision, many tribes 
will face unnecessary litigation and other delays that tribes cannot 
afford. The Committee must act soon to avoid further harm to tribes.
    I look forward to hearing the Administration's views on these bills 
and about the actions it is taking to ensure that the land into trust 
process continues in a timely fashion.
                                 ______
                                 

 STATEMENT OF THE HONORABLE DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Hastings. Thank you, Mr. Chairman, and thank you, Mr. 
Chairman, for holding this hearing.
    I believe also it is important for Congress to address the 
post-Carcieri situation on both lands previously taken into 
trust and for pending and future land-in-trust applications. 
Congress must work deliberately, and it is our responsibility 
to consider the views of the many different interests that are 
affected.
    Without question, this Committee has a special 
responsibility to the tribes of the United States. Yet elected 
representatives also have a responsibility to the communities 
and states that they are elected to represent. It would be 
neither responsible nor constructive for this Committee or the 
Congress to attempt to push through legislation like the bills 
before us today without considering the views of the states, 
counties and cities that we represent and, more importantly, 
the states, counties and cities who advanced this case all the 
way to the United States Supreme Court where their legal 
arguments prevailed.
    The Attorneys General `from 27 states are on record as 
either friends of the court in the Carcieri case or through a 
letter sent to this Committee as having concerns with the land-
in-trust process and wanting to be engaged in the deliberations 
on Carcieri-related legislation.
    If they were committed enough, those that I have mentioned 
before, enough to pursue this to the Supreme Court, then such 
interests are committed enough to come to this Congress and ask 
their Representatives and Senators from these 27 states to 
listen to their concerns. It ought to be in the interest of all 
those committed to addressing the post-Carcieri situation to be 
involving them in this conversation. That is why it was 
important that Attorney General Blumenthal of Connecticut and 
Mr. Woodside, representing Sonoma County, California, appear as 
witnesses at today's hearing.
    I do recognize that many in this country and in this 
hearing room disagree with the Supreme Court's decision and the 
prevailing legal position of the state and local governments. 
But it is unreasonable to expect Congress to simply ignore such 
concerns and fast-track this legislation without considering 
the effects of these bills.
    Let us be clear about what this legislation will do. 
According to their long titles, the bills are meant to, and I 
quote, ``reaffirm the authority of the Secretary of the 
Interior to take land into trust for Indian tribes.'' In fact, 
the effect of these bills goes much farther than that. This 
legislation would very bluntly overturn the Supreme Court 
decision from February. Yet it would also delegate to the 
Secretary of the Interior authorities expressly granted to 
Congress in Article 1, Section 8 of the Constitution.
    The effect of this legislation would be to give the 
Secretary nearly unconditional authority not to just take lands 
into trust but also unlimited authority to recognize new Indian 
tribes. With such a complete transfer of power and authority 
from Congress to the Secretary, just one individual in the 
Federal government would have the ability to recognize new 
tribes, take land into trust and approve gaming compacts to 
allow new casinos on these lands. This may strike many on both 
sides of the aisle as going too far and greatly overstepping a 
direct answer to the Carcieri decision.
    In addition, I will note that this bill for the first time 
ever would endow the Secretary with new authority to acquire 
lands in Alaska in trust for native villages. This too exceeds 
the bounds of a Carcieri fix, and I would certainly hope the 
views of the State of Alaska will be considered by this 
Committee as it further considers this legislation.
    As I stated at the outset of my remarks, I do fully support 
the need for action to address the post-Carcieri situation 
confronting tribes and taking lands into trust. The question 
that confronts us in Congress is how best to do so.
    In an effort to gather more information about the 
ramifications of the Carcieri decision and the views of 
Secretary Salazar and the Administration on the possible 
options that this Congress might have in addressing this issue, 
I sent a letter to Secretary Salazar last Friday with a number 
of questions. It is my hope that by giving advance notice of 
these questions to the Secretary that the Department's 
witnesses would have come prepared with answers so that we may 
have a more productive hearing.
    I request, Mr. Chairman, that a copy of my letter be made 
part of the hearing. With that, Mr. Chairman, thank you very 
much for again holding this hearing. This is a very important 
issue that needs to be discussed and understood thoroughly. And 
with that, I yield back my time and look forward to the 
testimony of the witnesses.
    The Chairman. The Chair thanks the gentleman from 
Washington for his comments and wishes to note at this point 
that I will have to depart very shortly in order to attend a 
meeting with the Speaker of the House and tribal chiefs that 
are in town from across our country and will be turning the 
chair over to the Co-Chair of the Native American Caucus, who I 
am going to recognize at this point, the gentleman from 
Michigan, Mr. Kildee, whom I have already recognized and thank 
for his dedication to Indian Country in my opening remarks. Mr. 
Kildee.

  STATEMENT OF THE HONORABLE DALE KILDEE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Kildee. Thank you, Mr. Chairman. First of all, I am 
very happy that Congressman Tom Cole and I are the Co-Chairs of 
the Native American Caucus. We were very anxious to get a bill 
before this Committee so we could have this hearing, and Tom 
and I have worked together very closely. We are not only 
colleagues here on the Committee but good friends. We are glad 
to have you supporting so strongly the rights of the 
sovereignty of the Indians.
    We do have in the Constitution our basis for our 
relationship to the sovereign nations. Now like in many cases, 
we give to someone in the executive branch the power to execute 
these laws, and we laid that out, and that is why we are here 
this morning, to make sure that there is no question about the 
power of the Secretary to do that which he or she has done for 
many years. But it is a Constitutional basis, and like in many 
areas, we give someone in the executive branch the power to 
execute that.
    First of all, I introduced this legislation because I was 
extremely disappointed by the Supreme Court's decision in 
Carcieri v. Salazar. The Supreme Court ruled that the Secretary 
of the Interior could not accept lands into trust for Indian 
tribes recognized after the Indian Reorganization Act of 1934. 
The Supreme Court overturned a lower court's decision and ruled 
that the phrase ``now under the Federal jurisdiction'' only 
applied to tribes that were recognized at the time of the IRA's 
enactment on June 18, 1934.
    The Court's literal interpretation of the Indian 
Reorganization Act ignores the Congressional intent of the 
original legislation and reverses 75 years of Secretarial 
authority. Therefore, I felt compelled and obligated to 
introduce legislation to fix this problem. H.R. 3742 will amend 
the IRA of 1934 by reaffirming the Secretary of the Interior's 
authority to take land into trust for Federally recognized 
Indian tribes. This bill will clarify the law and remove the 
uncertainty caused by the Supreme Court's decision.
    This decision affects many tribes across the nation, 
particularly those Indian tribes who have gained Federal 
recognition through the administrative process at the 
Department of the Interior and those tribes whose recognition 
was attained or reaffirmed after 1934, eight of which are in my 
home State of Michigan.
    Not only could this decision affect the pending and future 
land-into-trust applications, but it could also open the 
floodgates to numerous new legal charges. I am pleased to 
report that H.R. 3742 enjoys bipartisan support in Congress 
with 24 co-sponsors from all parts of the country. H.R. 3742 
also has wide support throughout Indian Country.
    The bill was written in close consultation with tribal 
organizations and the Department of the Interior, and is 
supported by the National Congress of American Indians and the 
United South and Eastern Tribes Incorporated.
    I would like to ask unanimous consent to enter into the 
record a resolution strongly supporting passage of H.R. 3742, 
which was passed on Thursday, October 29, 2009, at the 40th 
Anniversary Annual Meeting of the United South and Eastern 
Tribes. I also ask consent to enter into the record a letter 
from the Porch Creek Band of Indians supporting passage of this 
bill.
    In addition, I would like to enter into the record a letter 
from Secretary Salazar specifically and totally endorsing this 
bill as a necessary tool for him to carry out those obligations 
which he has. And I yield back the balance of my time.
    The Chairman. Without objection, entered into the record. 
The gentleman from CNMI, Mr. Sablan, do you wish to make any 
opening statement?
    Mr. Sablan. No, I do not. Thank you.
    The Chairman. OK. The Chair will introduce our first panel, 
composed of our colleagues, two of our colleagues. The first is 
The Honorable Michael Arcuri from the 24th District in New 
York, and the second gentleman I have already introduced in my 
opening comments when he was not here, the gentleman from 
Oklahoma, Mr. Cole, Co-Chair of the Native American Caucus, 
from the 4th District of Oklahoma.
    Mike, Tom, we welcome you to the Committee. We do have your 
prepared testimony. It will be made a part of the record as 
actually read, and you may proceed as you desire. Mike, do you 
want to go first?

STATEMENT OF THE HONORABLE MICHAEL ARCURI, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Arcuri. Yes. Thank you, Mr. Chairman.
    Chairman Rahall, Ranking Member Hastings, distinguished 
members of the Committee, thank you very much for giving me the 
opportunity to speak here today.
    The subject of today's hearing, Indian land trusts, is a 
paramount issue in my district. I represent an area of central 
New York that I always say is blessed with not one land claim 
controversy but two, the Oneida and Cayuga tribes of the 
Iroquois Confederacy.
    I live in Oneida County, the home of the great Oneida 
Indian Nation. The Oneidas and the United States have been 
friends for as long as we have been a nation. During the 
revolution, they chose to split with their Iroquois brothers 
and support the American cause over the British. They shed 
their blood alongside their American allies all throughout the 
colonies. One such battle right in Oneida County was the Battle 
of Oriskany, one of the bloodiest of the revolution.
    The years after the revolution were not easy on the 
Oneidas. However, their strong will and determination enabled 
them to persevere. Today the Oneidas have almost singlehandedly 
transformed parts of my county from rural farm land to a 
thriving, nationally renowned entertainment hub known as the 
Turning Stone Casino and Resort. The establishment has provided 
much needed jobs for nearly 5,000 individuals who were in need 
of work due to a downturn in our local economy.
    For these and many other reasons, it truly pains me to see 
tribes like the Oneida Nation and Cayuga in New York State and 
our local governments unable to resolve land and tax issues 
which have remained unresolved for over 30 years. I am here 
today to ask this Committee to address the inconsistencies 
which exist with the land-into-trust process. The issue has 
alienated family members, separated friends, put neighbors at 
odds and, worst of all, divided our community.
    Now, at first appearance, this may seem like an easy issue 
to resolve, but please understand this is not. Issues such as 
adverse taking of land into trust, lack of recognized limits on 
the amount of land taken into trust, collection of local and 
state sales tax, which puts local merchants at a disadvantage, 
loss of local school district property taxes, maintenance of 
local roads and bridges, checker-boarding of trust parcels, 
state and local regulatory enforcement, and the list goes on.
    The Federal trust process is laid out in Title 25 Part 151 
of the Code of Federal Regulations, allows land to be taken 
into trust status for a tribe under three scenarios, including 
when the Secretary determines that the acquisition of land is 
necessary to facilitate tribal self-determination, economic 
development and Indian housing.
    There is no question in my mind the tribes need and are 
entitled to a fair and reasonable amount of sovereign land on 
which to conduct their affairs. More importantly, it is not 
only their right. It is important and some might say critical 
to their heritage.
    However, the current process does not adequately balance 
tribal self-determination with the potential impact on local 
communities. The regulations require the Secretary to consider 
among other things the need of the tribe for additional land, 
the impact on state and its political subdivisions resulting 
from the removal of the land from the tax rolls and 
jurisdictional problems and potential conflicts of land use 
which may arise.
    In addition, the National Environmental Policy Act requires 
Interior to prepare an environmental impact statement in 
connection with any land-into-trust application. But Interior 
only evaluates the environmental impact associated with the 
Secretary taking title to the land, not the potential 
consequences of that action. In our case, the local municipal 
governments enter the school districts.
    The Carcieri case grew out of just such an unanswered 
question when the town of Charleston in the State of Rhode 
Island sought to require the Narragansett Tribe to obtain 
building permits for approval for a sewage system. When 
Interior maintains that future development, municipal services 
agreements and tax enforcement over transactions involving non-
Indians are all issues ancillary to the trust decision, they 
remain serious issues that are unresolved by current Federal 
trust process.
    I fully understand that these issues raise very serious and 
wide-ranging questions that are not easily resolved. However, 
government-to-government relations between the United States 
and sovereign Native American tribes necessitate that state and 
local governments also receive the assistance of the Federal 
government for the protection of certain of their regulatory 
interests.
    But this creates a scenario very close to a conflict of 
interest for the executive branch of the Federal government 
that must also satisfy a fiduciary duty to the tribes. This 
paradox is inherent in the Federal trust process as it 
currently exists, and the result is a process that simply is 
incapable of adequately addressing these issues.
    The Federal government cannot continue to simply throw up 
its hands and insist that the tribes and local governments 
resolve these difficult and complex issues by themselves. As a 
member of the first negotiating committee 12 years ago, I can 
tell you that we have tried. I would submit that it is 
imperative that the Interior and the BIA become engaged in 
dialogue or at least a cooperating partner in helping local 
communities and parties resolve and address the differences on 
these issues. Otherwise, issues like these will continue to 
tear communities like mine apart not only in New York and 
Oneida, Madison, Seneca and Cayuga counties in my state but 
across the country.
    I am encouraged that the Committee is holding this hearing 
today to begin the discussion of whether and how to amend the 
Indian Reorganization Act. I respectfully submit that this 
discussion should be one that assesses whether the current 
process is still striking the correct balance in order to 
facilitate tribal self-determination, economic development and 
Indian housing, and how the present policy affects densely 
settled and developed regions, such as areas like upstate New 
York.
    Again, I thank you for the opportunity to address this 
Committee, and I yield back the balance of my time.
    [The prepared statement of Mr. Arcuri follows:]

   Statement of The Honorable Michael A. Arcuri, a Representative in 
                  Congress from the State of New York

    Thank you for the opportunity to appear before the Committee today. 
The subject of today's hearing, Indian land trusts, is a paramount 
issue in my district. I represent an area of Central New York that I 
always say is blessed with not one Land Claim Controversy but two, The 
Oneida and Cayuga tribes of the Iroquois Confederacy. I live in Oneida 
County the home of the Great Oneida Indian Nation. The Oneidas and the 
United States have been friends for as long as we have been a Nation. 
During the Revolution they chose to split with their Iroquois brothers 
and support the American cause over the British. They shed their blood 
along side their American allies all throughout the Colonies. One such 
battle, right in Oneida County, was the battle of Oriskany, one of 
bloodiest of the Revolution. The years after the Revolution were not 
easy for the Oneidas, however there strong will and determination 
enabled them to persevere.
    Today the Oneidas have almost singlehandedly transformed parts of 
my county from rural farm land to a thriving nationally-renowned 
entertainment hub known as The Turning Stone Casino and Resort. The 
establishment has provided much needed jobs for nearly 5,000 people--
individuals who were in need of work due to a downturn in our local 
economy--and has attracted visitors from all over the world.
    For these and many other reasons it truly pains me to see tribes, 
like the Oneida Nation and the Cayuga, and New York State and our local 
governments unable to resolve land and tax issues which have remained 
unresolved for over 30 years. I am here today to ask this committee to 
address the inconsistencies which exist with the Land into Trust 
Process.
    This issue has alienated family members, separated friends, put 
neighbors at odds, and worst of all, divided a community. Now at first 
appearance this may seem like an easy issue to resolve, but please 
understand that it is not. Issues such as:
      Adverse taking of land into trust;
      Lack of recognized limits on amount of land taken into 
trust;
      Collection of local and State sales tax, which puts local 
merchants at disadvantage;
      Loss of local and School District property taxes;
      Maintenance of local roads and bridges in trust region;
      Checker boarding of trust parcels;
      State local regulatory enforcement
The list goes on and on.
    The federal trust process, as laid out in Title 25, Part 151 of the 
Code of Federal Regulations, allows land to be taken into trust status 
for a tribe under three scenarios, including when ``the Secretary 
determines that the acquisition of land is necessary to facilitate 
tribal self-determination, economic development, or Indian housing.'' 
There is no question in my mind that tribes need and are entitled to a 
fair and reasonable amount of sovereign land on which to conduct their 
affairs. More importantly, it is not only their right, it is important 
and, some might say, critical to their heritage.
    However, the current process does not adequately balance tribal 
self-determination with the potential impact on local communities. The 
regulations require the Secretary to consider, among other things:
      ``The need of the--tribe for additional land;
      ``The impact on the State and its political subdivisions 
resulting from the removal of the land from the tax rolls; and
      ``Jurisdictional problems and potential conflicts of land 
use which may arise.''
    In addition, the National Environmental Policy Act (NEPA) requires 
Interior to prepare an Environmental Impact Statement (EIS) in 
connection with any land-into-trust application, but Interior only 
evaluates the environmental impact associated with the Secretary taking 
title to the land--not the potential consequences of that action, in 
our case, to the local municipal governments and school districts. The 
Carcieri case grew out of just such an unanswered issue, when the Town 
of Charlestown and the State of Rhode Island sought to require the 
Narragansett tribe to obtain building permits and approval for a sewage 
system for a housing project the tribe had already begun constructing. 
However, since the project was on trust land, it was exempt from state 
or local regulation, so the parties were forced to challenge the trust 
acquisition itself.
    While Interior maintains that future development, municipal 
services agreements, and tax enforcement over transactions involving 
non-Indians are all issues ancillary to its trust decision, they remain 
serious issues that are unresolved by the current federal trust 
process. I fully understand that these issues raise very serious and 
wide-ranging questions that are not easily resolved; however 
Government-to-Government relations between the United States and 
sovereign Native American tribes necessitate that States and local 
governments also receive the assistance of the Federal government for 
protection of certain of their regulatory interests. But this creates a 
scenario very close to a conflict of interest for the Executive Branch 
of the Federal government that must also satisfy a fiduciary duty to 
the tribes. This paradox is inherent in the federal trust process as it 
currently exists and the result is a process that is simply incapable 
of adequately addressing these issues and many others that arise in 
modern society.
    The Federal government cannot continue to simply throw up its hands 
and insist that tribes and local governments resolve these difficult 
and complex issues among themselves. As a member of the first 
negotiating committee twelve years ago, I can tell you we have tried. I 
would submit that it is imperative that Interior or the BIA become 
engaged in dialog, or at least a cooperating partner, in helping the 
parties resolve and address their differences and issues. Otherwise, 
issues like these will continue to tear communities like mine apart, 
not only in New York--in Oneida, Madison, Cayuga and Seneca Counties--
but across the country.
    I am encouraged that the Committee is holding this hearing today to 
begin the discussion of whether and how to amend the Indian 
Reorganization Act. I respectfully submit that this discussion should 
be one that assesses whether the current process is still striking the 
correct balance in order ``to facilitate tribal self-determination, 
economic development, and Indian housing'' and how the present policy 
affects the densely settled and developed regions such as areas of 
Upstate New York.
    Thank you again for the opportunity to address the Committee today. 
I yield back the balance of my time.
                                 ______
                                 
    Mr. Kildee [presiding]. Thank you very much. I now 
recognize my good friend, Tom Cole, from Oklahoma, Co-Chair of 
the Native American Caucus.

   STATEMENT OF THE HONORABLE TOM COLE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF OKLAHOMA

    Mr. Cole. Thank you very much, Mr. Chairman. It is a 
particular honor to get to be back here in this Committee, 
which I had the privilege of serving on for a number of years.
    Mr. Chairman, Ranking Member Hastings and members of the 
Committee, thank you very much for the opportunity to testify 
on my legislation, H.R. 3697, which would address the Supreme 
Court decision, Carcieri v. Salazar.
    There is no question that this issue is of paramount 
importance to Indian Country and Congress should act quickly. 
This decision, which would fundamentally change the nature of 
tribal land in the United States, caught most individuals in 
the tribal community by surprise.
    In the Carcieri decision, the Court ruled that the Indian 
Reorganization Act provides no authority for the Secretary of 
the Interior to take land into trust for the Narragansett 
Indian Tribe because the statute applies only to tribes under 
Federal jurisdiction when that law was enacted in 1934.
    This standard if applied to tribes throughout the United 
States could put billions of dollars of investments at risk or 
even halt tribal development all together. It could also spark 
a firestorm of litigation between state and local governments 
and tribal governments.
    Mr. Chairman, there is no question that the Federal 
government's treatment of tribal nations over most of the last 
200 years has often been reprehensible. As a result of forced 
removal for the allotment process and other historical 
tragedies, many tribal nations were fragmented in 1934 and had 
not yet received formal Federal recognition.
    The Indian Reorganization Act was meant to encourage tribal 
sovereignty and self-governance in order to build sustainable 
self-governing tribal communities. I doubt it was the intent of 
Congress in the 1930s to purposely exclude a sizable number of 
tribes simply because they did not have formal recognition at 
the time when the Indian Recognition Act was enacted.
    Even today, when a tribe is Federally recognized, it must 
prove that it has continually existed as a political entity for 
generations. Therefore, it makes no sense to draw an arbitrary 
date for tribal recognition in order to enable the Secretary to 
put land into trust.
    Since the Carcieri decision has been published, Mr. 
Chairman, tribes throughout the United States are worried. It 
is not clear which tribes will be directly affected by this 
decision, but the policy implications of this judicial decision 
has sparked concern throughout Indian Country. Carcieri has the 
potential to become a revenue grab for states and could cause 
them to call the status of tribal lands into question, thereby 
placing decades of tribal economic development and investment 
into legal limbo. This is an open invitation for unnecessary 
litigation between tribal and state governments. Undoubtedly, 
it will create a major controversy between the two groups.
    Today this Committee is considering two excellent pieces of 
legislation in order to avoid this impending controversy. 
Congressman Kildee's bill and mine are almost identical, and I 
would be delighted if this Committee moved forward with either 
my bill or Mr. Kildee's legislation, H.R. 3742. Both bills are 
short and clean, as they should be.
    Mr. Kildee's commitment to Native Americans is well known 
and widely admired. Few Members of Congress have done as much 
to assist Indian Country as my friend, Mr. Kildee. Frankly, I 
would be honored to assist in the passage of his bill as one of 
his lead Republican co-sponsors.
    Mr. Chairman, the important thing is to get this fixed 
quickly before even more tribes suffer at the erroneous 
assumptions of the United States Supreme Court. I also would 
like to commend Senator Dorgan for his leadership on this issue 
in the Senate. He was the first Member of Congress to move to 
solve this problem. I know all of us concerned about this issue 
believe that a clear, succinct bill must be passed into law 
without delay to avoid the difficulties I outlined earlier in 
my testimony.
    Thank you, Mr. Chairman and Ranking Member Hastings, for 
allowing me to come before this distinguished Committee. These 
bills are vital for the protection of tribal governments and 
investments, and the quick action by Congress can prevent 
litigation that could poison relations between state and local 
governments and tribal governments. I urge you to move quickly 
and report this legislation for the sake of tribal communities 
everywhere.
    Thank you, and I yield back the balance of my time.
    [The prepared statement of Mr. Cole follows:]

Statement of The Honorable Tom Cole, a Representative in Congress from 
                         the State of Oklahoma

    Mr. Chairman and Ranking Member Hastings, thank you very much for 
the opportunity to testify on my legislation, H.R. 3697 which would 
address the Supreme Court decision Carcieri vs. Salazar (Carcieri). 
There is no question that this issue is of paramount importance to 
Indian Country and Congress should act quickly.
    This decision, which would fundamentally change the nature of 
tribal land in the United States, caught most individuals in the tribal 
community by surprise. In the Carcieri decision, the Court ruled that 
the Indian Reorganization Act (IRA) provides no authority for the 
Secretary of the Interior to take land into trust for the Narragansett 
Indian Tribe because the statute applies only to tribes under federal 
jurisdiction when that law was enacted in 1934. This standard, if 
applied to tribes throughout the United States could put billions of 
dollars of investments at risk or even halt tribal development 
altogether. It could also spark a firestorm of litigation between state 
and local governments and tribal governments.
    Mr. Chairman, there is no question that the federal government's 
treatment of tribal nations over most of the last 200 years has often 
been reprehensible. As a result of forced removals, the allotment 
process and other historical tragedies, many tribal nations were 
fragmented in 1934, and had not yet received formal federal 
recognition. The Indian Reorganization Act was meant to encourage 
tribal sovereignty and self-governance in order to build sustainable 
self governing tribal communities. I doubt it was the intent of 
Congress in the 1930s to purposely exclude a sizable number of tribes 
simply because they did not have formal recognition at the time when 
the IRA was enacted. Even today, when a tribe is federally recognized, 
it must prove that it has continually existed as a political entity for 
generations. Therefore it makes no sense to draw an arbitrary date for 
tribal recognition in order to enable the Secretary to put land into 
trust.
    Since the Carceri decision has been published Mr. Chairman, tribes 
throughout the United States are worried. It is not clear which tribes 
will be directly affected by this decision, but the policy implications 
of this judicial decision have sparked concern throughout Indian 
Country. Carcieri has the potential to become a revenue grab for 
states, and could cause them to call the status of tribal lands into 
question, thereby placing decades of tribal economic development and 
investment into legal limbo. This is an open invitation for unnecessary 
litigation between tribal and state governments. Undoubtedly, it will 
create major controversy with the two groups.
    Today this Committee is considering two excellent pieces of 
legislation in order to avoid this impending controversy. Congressman 
Kildee's bill and mine are almost identical, and I would be delighted 
if this Committee moved forward with either my bill, or Mr. Kildee's 
legislation, H.R. 3742. Both bills are short, and clean, as they should 
be. Mr. Kildee's commitment to Native Americans is well known and 
widely admired. Few Members of Congress have done as much to assist 
Indian Country as my friend, Mr. Kildee. Frankly, I would be honored to 
assist in the passage of his bill as one of his lead Republican co-
sponsors.
    Mr. Chairman, the important thing is to get this fixed quickly 
before even more tribes suffer at the erroneous assumptions of the 
United States Supreme Court. I also would like to commend Senator 
Dorgan for his leadership on this issue in the Senate. He was the first 
Member of Congress to move to solve this problem. I know all of us 
concerned about this issue believe that a clear, succinct, bill must be 
passed into law without delay to avoid the difficulties I outlined 
earlier in my testimony.
    Thank you again, Mr. Chairman, and Ranking Member Hastings for 
allowing me to come before this distinguished committee. These bills 
are vital for the protection of tribal governments and investments and 
the quick action of Congress can prevent litigation that could poison 
relations between state and local governments and tribal governments. I 
urge you to move quickly and report this legislation for the sake of 
tribal communities everywhere.
                                 ______
                                 
    Mr. Kildee. The Chair thanks Congressman Arcuri and 
Congressman Cole for their testimony this morning. And unless 
we have questions, I will use our usual protocol and yield to 
the gentleman from Washington.
    Mr. Hastings. Thank you very much, Mr. Chairman. First of 
all, thank you both for your testimony. And I had mentioned in 
my statement this is an issue that needs to be resolved. I can 
imagine the ramifications of those that were planning and all 
of a sudden the disruption in that.
    The question that I have, and this is mainly to Mr. Arcuri, 
does the legislation before us, Mr. Cole's and Mr. Kildee, 
address the issues that you testified to?
    Mr. Arcuri. I don't think that it does fully. Our issue 
really deals more with the taking of the land into trust and 
what are the parameters and was this the true intent of the way 
the original trust language was set up. And, again, what I 
think that we need is a little more guidance.
    You have a lot of situations in the east where, I can speak 
for New York, where tribes do not have land and clearly they 
should have land for whatever reason. And there are various 
reasons why they don't. They no longer have land. But to use 
the trust process to create large tracts of land creates a real 
problem for local school districts, for local towns and 
communities, and that is a real problem.
    Mr. Hastings. So, in many respects, your reason for your 
testimony is to kind of use this for lack of a better word 
opportunity to address the concerns you have, particularly on 
the trust issues. Is that a fair statement?
    Mr. Arcuri. That is a very fair statement, yes.
    Mr. Hastings. All right. That being the case, because we 
all know we have to take advantage of the opportunities that 
are afforded to us in this legislative process, you are a 
member of the Rules Committee. I used to be on the Rules 
Committee. I recognize that there are powers within that Rules 
Committee of things that we can do. There has been talk of 
attaching this piece of legislation to something that has to 
pass in order to get this quickly resolved.
    I guess my question to you is how would you as a member of 
the Rules Committee look at that, knowing that you have an 
opportunity to try to at least look at a portion of your 
concerns if this bill were put on a larger bill and passed 
without going through the normal process?
    Mr. Arcuri. Well, one of the things that I think is a 
creative opportunity is that I think that what we have not seen 
is more guidance and help from the BIA, from the Department of 
the Interior. I mean, very often, there is no question but 
these issues can and should be resolved locally. It has 
happened in other parts of the country, but what we have not 
seen is any help and any assistance from either the BIA or from 
the Department of the Interior in terms of helping bring the 
parties to the table to sit down and discuss it. And I think 
that that would be a critical piece of legislation for this 
Committee to----
    Mr. Hastings. Well, listen, I understand that, and what you 
are suggesting is that this is an opportunity here that ought 
to be taken advantage of at least as it relates to trust and at 
least as it relates to your concerns if I am hearing your 
correctly.
    My question is, the process here within the House, if this 
bill gets attached to some other piece of legislation and all 
of a sudden your opportunity would potentially be gone because, 
listen, I have tribes in my district, and I hear the 
frustrations with BIA where there is no response.
    This is the opportunity to try to get something from them 
to address your concerns. But if this is attached to a larger 
bill, it has to go through the Rules Committee, rules would 
have to be waived. I just wondered what your thought process 
would be in that regard because then your opportunity would be 
gone.
    Mr. Arcuri. You are talking about the Carcieri, this 
section?
    Mr. Hastings. Yes. Right.
    Mr. Arcuri. As you are well aware, it would depend on what 
bill it was attached to. I would have to see it. That is 
difficult to answer I think at this point.
    Mr. Hastings. OK. Well, I wanted to get a sense because I 
think this needs to be resolved, and I think, as I mentioned in 
my statement, there needs to be as broad of input of people 
that are affected. This is not obviously a partisan issue. This 
is an issue that needs to be addressed. And, as you know, 
sometimes in the legislative process these opportunities avail 
themselves and we need to take advantage of that.
    And one way to not take advantage of it would be to not go 
through the regular process and fast-track it without input. 
You are a member of the Rules Committee. You would be part of 
that. That is the reason I asked you.
    Mr. Arcuri. And one of the difficult things from our 
perspective is, you know, I recognize the fact that we have a 
very unique circumstance and if we change the law or we do 
something dramatic, it could affect other circumstances and 
other tribes around the country, which may not be beneficial. 
However, you know, again, we have certain unique circumstances 
in our state, as in your state in Washington. And that is why I 
say that if we could get some help with resolving our issues 
through the BIA and through the Department of the Interior, we 
could really well move into an area that could settle it 
ourselves.
    Mr. Hastings. Good. Thank you very much. Thank you, Mr. 
Chairman.
    Mr. Arcuri. Thank you, sir.
    Mr. Kildee. The gentleman from Oklahoma.

   STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF OKLAHOMA

    Mr. Boren. Thank you, Mr. Chairman. I really appreciate 
this hearing today. I appreciate Chairman Rahall, Ranking 
Member Hastings, and the gentleman sitting in the chair, 
Congressman Kildee, who has been a great champion, not only on 
this issue but on so many other issues in Indian Country. Thank 
you for your leadership.
    I want to first say that I am a co-sponsor of Mr. Kildee's 
bill and Mr. Cole's bill. I support both pieces of legislation. 
I am kind of like my colleague from Oklahoma. We just want to 
get this fix done quickly because it is so very important to 
places like Oklahoma. We have a lot of jobs at stake here. A 
lot of attention is about gaming, but this is much more than 
gaming. This is about housing. This is about so many other 
issues that impact Indian Country. And so I really appreciate 
this opportunity. Whatever vehicle it may take, the question 
was asked, must pass bill. Sure, I am fully supportive of us 
doing that.
    There are a lot of unanswered questions here. We have 
particular issues in Oklahoma because we have tribes that were 
formed under the Oklahoma Indian Welfare Act and a lot of other 
questions that I would like to get answers to. I am going to 
have questions for our next panel, but I want to thank my 
colleagues for being here today and again thank Mr. Kildee for 
his leadership. Thank you.
    Mr. Kildee. Ms. Herseth Sandlin from South Dakota.

    STATEMENT OF THE HONORABLE STEPHANIE HERSETH SANDLIN, A 
   REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH DAKOTA

    Ms. Herseth Sandlin. Thank you, Mr. Chairman. I do not have 
questions for our colleagues today, but I do want to thank them 
for their testimony and thank Chairman Rahall for the hearing 
so that, as Mr. Boren said, we can examine these very important 
issues. I want to thank you, Mr. Kildee and Mr. Cole, for the 
legislation that you have introduced, for your leadership on 
behalf of Indian Country.
    I am a co-sponsor of 3742, reaffirming the Secretary's 
authority to take land into trust for tribes regardless of when 
they received Federal recognition. The nine sovereign nations 
that I have the honor of representing all were recognized prior 
to the enactment of the Indian Reorganization Act of 1934.
    But they have very serious concerns that this recent 
decision in Carcieri will invite new legal challenges of tribal 
trust acquisitions in South Dakota, battles that they have been 
waging for years. And I think it is critical that we act to 
ensure that the Secretary and affirming his authority in this 
regard for meeting the Federal government's obligations to all 
the tribes.
    So I think that the decision could greatly limit the 
ability of tribes to stimulate economic development. As Mr. 
Boren said, this has a lot more to do with a whole host of 
other issues in addition to gaming that I think people are 
paying attention to as it relates to affordable housing, as he 
mentioned, preserving history and culture and other economic 
development issues important to the tribes I represent and 
across Indian Country, whether it be renewable energy 
development in terms of wind energy, other pursuits that tribes 
are looking to partner for job opportunities in a part of the 
country that I represent throughout the great plains where 
unemployment is of the highest rates.
    So I again appreciate the opportunity to hear from our 
colleagues about their thoughts on these bills and how this 
affects different regions of the country. But whether tribes 
are recognized prior to or after 1934, the decision could have 
far-reaching consequences. So I think we need to affirm the 
authority. Thank you, Mr. Kildee.
    Mr. Kildee. Thank you. And we appreciate the testimony of 
our two colleagues, and at that, we will let you get about your 
other tasks today. This is a very busy week. And thank you 
very, very much for your testimony.
    The Chair would now call to the stand Mr. Donald Laverdure, 
Deputy Assistant Secretary of Indian Affairs, U.S. Department 
of the Interior, Washington, D.C. Mr. Laverdure, we welcome you 
here. You may begin your testimony.

 STATEMENT OF DONALD LAVERDURE, DEPUTY ASSISTANT SECRETARY OF 
 INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, 
                              D.C.

    Mr. Laverdure. Good morning, Mr. Chairman, Ranking Member 
Hastings and members of the Committee. Thank you for this 
opportunity to present the Department's position on the two 
bills that are before this Committee.
    My name is Donald Laverdure, and I am the Deputy Assistant 
Secretary for Indian Affairs over at the Department, and the 
Department applauds the sponsors for their introduction of 
these bills and strongly supports Congress' effort to address 
the recent U.S. Supreme Court decision in Carcieri v. Salazar.
    Most importantly, the Administration supports the two bills 
for two primary reasons. It reaffirms the Secretary's authority 
to take land into trust for all tribes, and it reaffirms the 
legality of actions already taken under IRA Section 5.
    The Carcieri decision runs contrary to longstanding policy 
and practice of the United States to assist all tribes in 
establishing and protecting a land base sufficient to allow 
them to provide for the health, safety and welfare of their 
tribal citizens.
    The Carcieri decision creates uncertainty, potentially 
upsets strong reliance interests and settled expectations and 
increases Federal and tribal costs associated with current and 
expected historical research and potential litigation. Even 
though the U.S. Supreme Court says what the law is, we disagree 
with how the U.S. Supreme Court construed Section 5 of the IRA 
and urge Congress to clarify it.
    The U.S. Supreme Court did not define the term ``under 
Federal jurisdiction'' and only decided the case on the term 
now, which meant the time of enactment in 1934. At this time, 
the Department is still trying to interpret the full 
ramifications of the decision, because all we know today is 
that the U.S. Supreme Court held that the Narragansett tribe 
was not under Federal jurisdiction, which, as an aside, was an 
accepted fact in the record.
    Regardless of how broad or narrowly the term ``under 
Federal jurisdiction'' will be construed, we are almost certain 
that it will cause litigation and lead to uncertainty and 
costly expenses. In addition, the Secretary of the Interior 
cannot fully fulfill his trust responsibility in a timely and 
predictable manner because of this uncertainty.
    Therefore, the Department's approach has been on a case-by-
case basis with each pending application. And with that, we 
have to review the facts, evidence, the request itself, 
extensive research into each tribe's history to determine 
whether each tribe was under Federal jurisdiction. And all of 
this leads us to the point of where we are today, which is the 
Carcieri fix proposed in this Committee essentially is to 
reinstill the intent of the IRA and recall that the IRA is in 
reaction to the 1887 General Allotment Act where there was a 
two-thirds reduction in all tribal lands.
    In fact, in 1938, the Secretary of the Interior's annual 
report stated that Indian-owned lands had diminished from 130 
million acres in 1887 to approximately 49 million in 1933. 
During that period, tribes lost some 80 percent of the value of 
their land and individual Indians realized a loss of 85 percent 
of their value. As a result, Congress enacted the IRA. The IRA 
was intended to end allotment, provide a way for Indians to 
organize themselves in a Federally recognized forum, secure 
home lands and reacquire lands for tribal purposes and address 
allotment.
    Congress has acted to reaffirm the IRA, and that has been 
done in the Indian Self-Determination Education Assistance Act 
in 1975 and ultimately with amendments to the IRA in 1994. At 
that time in 1994, Congress expressed its intent that all 
tribes be treated the same regardless of when they were 
recognized. And the practical effects are that some tribes who 
are impacted by this are going to have a difficult time to 
provide housing opportunities, like the Narragansetts, to help 
them realize the tremendous energy assets and to protect 
existing rights of way and leases that will be utilized for 
various economic development reasons, as stated earlier in the 
testimony.
    We think that H.R. 3742 is the preferred vehicle to 
accomplish this objective because it applies not just to 
Section 19 but to the entire Act. So H.R. 3742 is fully 
supported by the Administration and accomplishes the two most 
important things, which are the elimination of the temporal 
restriction for tribes potentially recognized after 1934 and 
also to codify the Secretary's land decisions since 1934.
    I want to end with just a quote, which is the dissent of 
Justice Black in the Tuscarora Commission case where he said, 
``Great nations, like great men, keep their word,'' and this 
Administration fully supports this fix to accomplish the 
objectives mentioned in this testimony.
    Thank you for the opportunity to provide this testimony, 
and I am happy to answer any questions that the Committee has.
    Mr. Kildee. Thank you for your testimony. Do you think that 
the U.S. Supreme Court looked adequately at the history and 
background that led to the Indian Reorganization Act of 1934?
    Mr. Laverdure. Thank you, Mr. Chairman. The U.S. Supreme 
Court did go into a fair amount of detail into the background 
of the Carcieri decision and in fact in the decision itself 
talked often about the correspondence between Senator Wheeler 
and then Commissioner of Indian Affairs Collier. And there was 
a back and forth on the ultimate bill that resulted in the IRA, 
but I think that the total historical evidence and the impact 
of the decision perhaps did not fully take into account all of 
the history that goes behind each of the decisions for the 
political government-to-government relationship between the 
United States and the individual tribes.
    Mr. Kildee. Thank you very much. I am hearing from tribes 
across the country that they are concerned that they may have a 
Carcieri problem. So, therefore, they are not now submitting 
trust applications until there is guidance from the IRA on how 
their trust application will be handled. They don't want their 
states or neighboring communities to file a suit against them. 
Therefore, they are hesitant to bring a case before the IRA. 
Are your regional offices or your office here in Washington, 
D.C. giving them any assistance or advice as to how they should 
handle what they had intended to put before the Interior 
Department?
    Mr. Laverdure. Thank you for the question, Mr. Chairman. At 
this time, the Department's approach has been case by case. We 
haven't fully understood the implications of all of the aspects 
of the decision and how it will impact that. And so when the 
pending application is provided to the Department, we ask that 
the regional directors who handle the nongaming trust 
applications, that they in fact look to the Solicitor's 
guidance, Department of Justice and others to see how they 
should in fact approach the application and whether in fact 
they may be impacted by the Carcieri decision.
    The same holds true at the Washington, D.C. level, but this 
all calls into question and really is a strong reason for 
Congress to clarify this authority so that we don't have to go 
through this piecemeal, case by case with each application.
    Mr. Kildee. In certain states, there are treaties, specific 
treaties signed by tribes, yet through the years, the 
Department of the Interior and the BIA have just dropped 
certain tribes that were signatories to those treaties from the 
rolls and they were dropped for many, many years. Subsequently, 
they have been returned to the rolls, but they were not on the 
rolls in 1934. But they had been signators of the Treaty of 
Detroit and various treaties around the country. What do we do 
with those tribes if we do not set aside or modify the Supreme 
Court decision?
    Mr. Laverdure. Well, Mr. Chairman, I think it will end up 
going to the case-by-case analysis of those tribes, and those 
treaties that you talk about, Detroit, for example, will be 
evidence of a possible Federal relationship. And recall that 
throughout history, early on, prior to 1871, the existence of a 
treaty was the basis for the government-to-government 
relationship oftentimes between the Federal government and 
Indian tribes and in fact continues to be evidence of a 
political relationship.
    And so that would be one of the considerations and also the 
fact of any administrative errors also would be taken into 
account in the process for the trust application as well.
    Mr. Kildee. But this would be as a result of litigation, 
would it not? Very often someone could sue and say you were not 
on the rolls in 1934, and even though you were a signator to 
the Treaty of Detroit, the Court has ruled that, unless you 
were on the rolls in 1934, not recognized. Could that not lead 
to a great deal of litigation in certain areas?
    Mr. Laverdure. Yes, Mr. Chairman, I think it could lead to 
many other unintended consequences, but much litigation to be 
sure.
    Mr. Kildee. Could you indicate what other unintended 
consequences this might lead to?
    Mr. Laverdure. Well, that the Supreme Court's decision, 
which prior to this time there was deference by the Supreme 
Court to the political branches on recognition. And the working 
assumption is that the remaining provisions of the IRA remain 
legal until the Supreme Court says otherwise. But we would have 
to take that into account, the analysis, but right now, today, 
we simply view it as the application to the Narragansett tribe 
and that they were not under Federal jurisdiction in 1934.
    But the other consequences in present day is third-party 
developers, for example, wanting certainty and predictability 
on a renewable energy transaction, which is a signature 
initiative of the administration; housing development, which 
was the subject of the case itself; trying to get financing 
from investors and banks; not wanting uncertainty with title to 
the trust lands and a variety of other things that are still 
under consideration.
    Mr. Kildee. You know, when a person buys land, one wants 
not only a deed but the abstract right, indicating the real 
ownership, trace of ownership. If a lender to a tribe that 
might be on the verge of some really great economic development 
were to go to that lender, they might be very hesitant, as you 
indicated, to lend the money with this cloud. Is that not the 
case?
    Mr. Laverdure. I assume that could occur, Mr. Chairman.
    Mr. Kildee. I think with lending as sluggish as it is right 
now that the lender would be very hesitant to lend money where 
there is some question as to whether the law covers them as a 
really existing potential borrower.
    Mr. Laverdure. And I think, as Mr. Cole stated earlier, it 
has the potential to affect generations of economic development 
that have really turned around tribal communities.
    Mr. Kildee. Thank you very much. The gentleman from 
Washington.
    Mr. Hastings. Thank you, Mr. Chairman. Thank you, Mr. 
Laverdure, for being here today. As I mentioned in my opening 
statement, I sent Secretary Salazar a letter with a number of 
questions, and I noted in your testimony you didn't answer any 
of those questions. Are you prepared to answer those questions 
today that I had submitted?
    Mr. Laverdure. Thank you, Mr. Hastings. We did receive 
those on Friday and worked diligently since that time to look 
at the questions, assembled the internal teams to try to come 
up with the best answers that we could now. And for those that 
we were unable to gather the information, we would be happy to 
follow up and provide those to you, but we do have the answers 
to the extent we can to those questions.
    Mr. Hastings. You do have them you say?
    Mr. Laverdure. Some of those answers, yes.
    Mr. Hastings. Why don't you go ahead and respond then to 
some of those questions that I had. There are a number of 
questions there, so rather than me picking which one, why don't 
you tell me which one you are prepared to answer today.
    Mr. Laverdure. Well, of the 14 questions, I guess beginning 
with number one, to the extent I can, has listed, I don't know 
if you want me to read the question, Mr. Hastings.
    Mr. Hastings. Well, let me just read the question, and then 
you can respond. The first question was, has the Department 
determined which tribes on the latest list of recognized tribes 
annually published in the Federal Register pursuant to the 
Federally Recognized Indians List Act of 1994 were not under 
Federal jurisdiction on June 18, 1934?
    Mr. Laverdure. No, and the Carcieri decision spoke to the 
Narragansett. It has confused the issue as to when the 
Secretary might exercise his discretionary trust authority. The 
Department is again approaching that on a case-by-case and 
prefers the legislative vehicle to clarify the Secretary's 
authority.
    Mr. Hastings. So the legislation clarifies the Secretary's 
authority?
    Mr. Laverdure. It would reaffirm the Secretary's authority 
to take the land.
    Mr. Hastings. But you must have a list, though. The reason 
I am asking is that I clearly understand the dilemma of the 
Supreme Court decision, but between 1934, the time ensuing, 
there had to have been some decisions or work with tribes that 
were submitting an application. You must have a list of that. 
That is simply nothing more than what I am asking is what that 
list is.
    Mr. Laverdure. I understand, Mr. Hastings. The difficulty 
with the production of a list is that it could be premature, 
that some of these, as mentioned before, the 16 tribes 
recognized under the administrative process, in 1994, for 
example, Congress said in its amendments to the IRA that they 
would be considered historic tribes and that they had to prove 
their existence back to time immemorial. And because of that, 
if we had listed someone who had been recognized after but in 
fact through the process had proved that they continually 
existed, then we would be prematurely providing a list that 
could have unintended consequences.
    Mr. Hastings. Well, and I appreciate that. And I would 
expect that something that goes back this far and is as complex 
as this would have certain footnotes as to the exceptions and 
why it would be difficult to have say one list. Well, listen, I 
know my time is running out, and there is no way we can get to 
all of the questions. I would appreciate if you could submit in 
writing all of the answers to all of the questions that I 
asked. Could you do that?
    Mr. Laverdure. Yes, we will, Mr. Hastings.
    Mr. Hastings. OK. And how quickly can we expect an answer, 
because this obviously is a very important issue that needs to 
be addressed?
    Mr. Laverdure. We will work with your staff and get on it 
as soon as possible.
    Mr. Hastings. By the end of the week perhaps?
    Mr. Laverdure. The end of this week, Mr. Hastings?
    Mr. Hastings. Right.
    Mr. Laverdure. We have a Presidential summit tomorrow, 
which is going to take out tomorrow. We will just start working 
on it as soon as possible and try to get it to you as soon as 
possible.
    Mr. Hastings. Right. Well, as you know, you never know the 
answer until you ask. I certainly appreciate that. I know you 
have other responsibilities, as do we. Listen, I would wish 
that you would communicate with us as quickly as possible just 
to give us an idea so that we can try to be helpful in this 
whole process.
    Mr. Laverdure. OK.
    Mr. Hastings. Thank you.
    Mr. Kildee. You know, it seems to me that we are trying to 
establish various stimuli in this country for the economy. This 
would seem to be for many attorneys a real bonanza out there. 
They could see possible lawsuits on various things, development 
of mineral rights, leasing of mineral rights. This could lead 
to a great deal of litigation all over the country, could it 
not?
    Mr. Laverdure. Yes, it could, Mr. Chairman. And that is one 
of our principal concerns about not having a legislative fix.
    Mr. Kildee. Thank you very much. The gentleman from 
Oklahoma, Mr. Boren.
    Mr. Boren. All right. Thank you, Mr. Chairman. I had a few 
prepared questions, and then they changed a little bit because 
of your testimony. The first question I had was, is the 
Department currently continuing with the responsibility to 
process land-into-trust applications right now and, if so, can 
you describe how the Department is interpreting the phrase 
``under Federal jurisdiction.'' And kind of you already 
answered that by saying we are taking this on a case-by-case 
basis.
    And just as an editorial, to me, you are saying regional 
directors are kind of making this determination, and I know you 
all are kind of having to come up with some way to handle all 
of this. And, frankly, it is a little scary because a lot of 
these regional directors can use their own bias. I mean, we 
could have one person deciding one thing for one tribe, someone 
else having a different decision, and so we have these 
unelected bureaucrats basically making some decisions that have 
real impacts on tribes and how they determine housing or 
economic development issues or anything else.
    I know it is not your fault. This is dropped on your lap 
and you kind of have to come up with a way to determine these 
cases. But I think that what is happening in Indian Country is 
a reason why we need to get Mr. Kildee's bill passed as soon as 
possible to fix that.
    And then I go on. I have another question. There are 
situations where a tribe may have been in discussions with your 
Department for years prior to the passage of IRA in 1934 or 
actually haven't received appropriations from Congress, yet 
those same tribes may not have been recognized until 10, 20 or 
even 40 years later. Would you consider these discussions 
counting as being under Federal jurisdiction? And I mean as 
concise a statement. Yes or no would be a lot better than, 
well, maybe. Can you give us kind of a good framework there?
    Mr. Laverdure. Mr. Boren, since we haven't set the criteria 
for ``under Federal jurisdiction,'' I couldn't say. It 
certainly would be evidenced toward that type of relationship.
    Mr. Boren. OK. And let me give you another scenario. What 
if a tribe is Federally recognized after 1934, but that tribe's 
basis for recognition is that it is a descendant or a branch of 
a tribe that had treaty relations with the United States but is 
no longer functioning as an entity. And Mr. Kildee talked about 
this a little bit. But in your view, would that count as being 
under Federal jurisdiction? Still the same answer?
    Mr. Laverdure. Likely the same answer, but under the IRA, 
there were three classes. One was any member of a Federally 
recognized tribe. The second class was descendants of members 
on an Indian reservation. And then the third class was one half 
bloods or more. And that is what existed in the statue in 1934, 
so that has a partial perhaps answer to your question.
    Mr. Boren. OK. Last, I have kind of a parochial issue. As 
you know, most tribes in my State of Oklahoma have longstanding 
treaty relations with the United States, but some have 
reorganized under the Oklahoma Indian Welfare Act. Should they 
be concerned, or have you identified any potential issues for 
those tribes?
    Mr. Laverdure. Mr. Boren, because it was an interpretation 
of the IRA, we have not looked into the Oklahoma Indian Welfare 
Act, but it could be subject to a future challenge based on 
similar reasoning. If someone were to bring a lawsuit saying 
provisions like the IRA exist in the OIWA, but as of today, it 
only affects Narragansett and Section 5 of the IRA.
    Mr. Boren. OK. Well, thank you for your testimony. And I 
think these unsettled questions underscore the fact that we 
need to have immediate action and get this bill passed and this 
fix done. Thank you, Mr. Chairman.
    Mr. Kildee. My friend, my hallmate and the gentleman from 
Alaska.
    [The prepared statement of Mr. Laverdure follows:]

      Statement of Donald Laverdure, Deputy Assistant Secretary--
            Indian Affairs, U.S. Department of the Interior

    Chairman Rahall, Ranking Member Hastings, and Members of the 
Committee, my name is Donald Laverdure and I am the Deputy Assistant 
Secretary--Indian Affairs at the Department of the Interior. Thank you 
for the opportunity today to present the views of the Department of the 
Interior on H.R. 3742 and H.R. 3697, bills ``to amend the Act of June 
18, 1934, to reaffirm the authority of the Secretary of the Interior to 
take land into trust for Indian tribes.'' The Department applauds the 
sponsors for the introduction of these bills and strongly supports 
Congress' effort to address the recent United States Supreme Court 
(Court) decision in Carcieri v. Salazar (Carcieri).
    The Department was, and continues to be, disappointed in the 
Court's decision in the Carcieri case. The decision was not consistent 
with the longstanding policy and practice of the United States to 
assist all tribes in establishing and protecting a land base sufficient 
to allow them to provide for the health, welfare, and safety of tribal 
members, and in treating tribes alike regardless of the date of 
acknowledgment. The Court's decision hinders fulfillment of the United 
States' commitment to supporting Tribes' self-determination by 
clouding--and potentially narrowing--the United States' authority to 
protect lands for tribes by holding the lands in trust on their behalf.
    Furthermore, the Carcieri decision has disrupted the process for 
acquiring land in trust for recognized tribes by imposing new and 
undefined requirements on applications now pending before the 
Secretary. The decision has called into question the Department's 
authority to approve pending applications, as well as the effect of 
such approval, by imposing criteria that have not previously been 
construed or applied.
Purposes of the Indian Reorganization Act
    In 1887, Congress passed the General Allotment Act. The General 
Allotment Act divided tribal land into 80 and 160-acre parcels for 
individual tribal members. The allotments to individuals were to be 
held in trust for the Indian owners for no more than 25 years, after 
which the owner would hold fee title to the land. Surplus lands, lands 
taken out of tribal ownership but not given to individual members, were 
conveyed to non-Indians. Moreover, many of the allotments provided to 
Indian owners fell out of Indian ownership through tax foreclosures.
    The General Allotment Act resulted in huge losses of tribally owned 
lands, and is responsible for the current ``checkerboard'' pattern of 
ownership on Indian reservations. Approximately 2/3 of tribal lands 
were lost as a result of the process established by the General 
Allotment Act. Moreover, many tribes faced a steady erosion of their 
land base during the removal period, prior to the passage of the 
General Allotment Act.
    The Secretary of the Interior's Annual Report for fiscal year 
ending June 30, 1938 reported that Indian-owned lands had been 
diminished from 130 million acres in 1887, to only 49 million acres by 
1933. Much of the remaining Indian-owned land was ``waste and desert''. 
According to then-Commissioner of Indian Affairs John Collier in 1934, 
tribes lost 80 percent of the value of their land during this period, 
and individual Indians realized a loss of 85 percent of their land 
value.
    Congress enacted the Indian Reorganization Act in 1934, in light of 
the devastating effects of prior policies. Congress' intent in enacting 
the Indian Reorganization Act was three-fold: to halt the federal 
policy of Allotment and Assimilation; to reverse the negative impact of 
Allotment policies; and to secure for all Indian tribes a land base on 
which to engage in economic development and self-determination.
    The first section of the Indian Reorganization Act expressly 
discontinued the allotment of Indian lands, while the next section 
preserved the trust status of Indian lands. In section 3, Congress 
authorized the Secretary to restore tribal ownership of the remaining 
``surplus'' lands on Indian reservations. Most importantly, Congress 
authorized the Secretary to secure homelands for Indian tribes by re-
establishing Indian reservations.
    The United States Supreme Court recognized that the Indian 
Reorganization Act's ``overriding purpose'' was ``to establish 
machinery whereby Indian tribes would be able to assume a greater 
degree of self-government, both politically and economically.'' Morton 
v. Mancari, 417 U.S. 535, 542 (1974). Congress recognized that one of 
the key factors for tribes in developing and maintaining their economic 
and political strength lay in the protection of the tribe's land base.
    Acquisition of land in trust is essential to tribal self-
determination. The current federal policy of tribal self-determination 
built upon the principles Congress set forth in the Indian 
Reorganization Act and reaffirmed in the Indian Self-Determination and 
Education Assistance Act.
    Most tribes lack an adequate tax base to generate government 
revenues, and others have few opportunities for economic development. 
Trust acquisition of land provides a number of economic development 
opportunities for tribes and helps generate revenues for public 
purposes. For example, trust acquisitions provide tribes the ability to 
enhance housing opportunities for their citizens. This is particularly 
necessary where many reservation economies require support from the 
tribal government to bolster local housing markets and off-set high 
unemployment rates. Trust acquisitions are necessary for tribes to 
realize the tremendous energy development capacity that exists on their 
lands. Trust acquisitions allow tribes to grant certain rights of ways 
and enter into leases that are necessary for tribes to negotiate the 
use and sale of their natural resources. Uncertainty regarding the 
trust status of land may create confusion regarding law enforcement 
services and interfere with the security of Indian communities. 
Additionally, trust lands provide the greatest protections for many 
communities who rely on subsistence hunting and agriculture that are 
important elements of their culture and life ways.
Carcieri v. Salazar Decision
    On February 24, 2009, the Supreme Court issued a decision in 
Carcieri v. Salazar. The Court held that land could not be taken into 
trust for the Narragansett Tribe of Rhode Island under Section 5 of the 
Indian Reorganization Act of 1934 because the Tribe was not a 
recognized Indian tribe under Federal jurisdiction in 1934. This 
decision prevented the tribe from completing its low-income housing 
project and has required both the Department and tribes to spend an 
inordinate amount of time analyzing whether many tribes are entitled to 
have land taken into trust in light of the Carcieri holding. This is 
both time-consuming and costly. Once the Department completes this 
process, and notices its intent to take the land into trust, we expect 
costly and complex litigation over the status of applicant tribes in 
1934. This proposed legislation will avoid the need for the historical 
research and the high costs and risks of litigating this issue.
Consequences of the Decision
    In 1994 Congress was concerned about the differences in the 
treatment of Indian tribes and passed an amendment of the Indian 
Reorganization Act to emphasize its existing policy and to ensure its 
policy of treating tribes equally in the future. The amendment 
provided:

        (f) Privileges and immunities of Indian tribes; prohibition on 
        new regulations

        Departments or agencies of the United States shall not 
        promulgate any regulation or make any decision or determination 
        pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 
        Stat. 984) as amended, or any other Act of Congress, with 
        respect to a federally recognized Indian tribe that classifies, 
        enhances, or diminishes the privileges and immunities available 
        to the Indian tribe relative to other federally recognized 
        tribes by virtue of their status as Indian tribes.

        (g) Privileges and immunities of Indian tribes; existing 
        regulations

        Any regulation or administrative decision or determination of a 
        department or agency of the United States that is in existence 
        or effect on May 31, 1994, and that classifies, enhances, or 
        diminishes the privileges and immunities available to a 
        federally recognized Indian tribe relative to the privileges 
        and immunities available to other federally recognized tribes 
        by virtue of their status as Indian tribes shall have no force 
        or effect.
25 U.S.C. Sec. 476(f), (g). The result of the Carcieri decision runs 
counter to that congressional policy and creates the potential for the 
disparate treatment of tribes. Both H.R. 3742 and H.R. 3697 would 
restate Congress' longstanding policy of treating all federally 
recognized tribes equally.
    The uncertainty created by Carcieri has also had a significant 
impact on tribes seeking to place land into trust. In addition, tribes 
must expend even more time and money preparing to litigate their trust 
acquisition applications if uncertainty persists.
H.R. 3742 and H.R. 3697
    Both H.R. 3742 and H.R. 3697 would help achieve the goals of the 
Indian Reorganization Act and tribal self-determination by clarifying 
the Department's authority under the Act applies to all tribes whether 
recognized in 1934 or not, unless there is tribe-specific legislation 
that precludes such a result. The bills would reestablish confidence in 
the United States' ability to secure a land base for all federally 
recognized tribes as well as address the devastating effects of 
allotment policies for all federally-recognized tribes.
    While both bills would achieve the purpose of restoring certainty 
for tribes, States, and local communities, we do, however, prefer the 
language in H.R. 3742 over the language contained in H.R. 3697. H.R. 
3742 provides that the terms ``Indian tribe'' and ``tribe'' would apply 
throughout the IRA rather than just section 19 of the Act, as provided 
in H.R. 3697.
Conclusion
    A sponsor of the Indian Reorganization Act, Congressman Howard, 
stated: ``[w]hether or not the original area of the Indian lands was 
excessive, the land was theirs, under titles guaranteed by treaties and 
law; and when the Government of the United States set up a land policy 
which, in effect, became a forum of legalized misappropriations of the 
Indian estate, the Government became morally responsible for the damage 
that has resulted to the Indians from its faithless guardianship.''
    The power to acquire lands in trust is an important tool for the 
United States to effectuate its longstanding policy of fostering 
tribal-self determination. Congress has worked to foster self-
determination for all tribes, and did not intend to limit this 
essential tool to only one class of tribes. These bills would clarify 
Congress' policy and the Administration's intended goal of tribal self-
determination and allow all tribes to avail themselves of the 
Secretary's trust acquisition authority. These bills will help the 
United States meet is obligation as described by United States Supreme 
Court Justice Black's dissent Federal Power Commission v. Tuscarora 
Indian Nation. ``Great nations, like great men, should keep their 
word.''
    This concludes my statement. I would be happy to answer any 
questions the Committee may have.
                                 ______
                                 
    Mr. Young. Thank you, Mr. Chairman. I have one interest in 
this legislation, actually two. I happen to support the 
foundation of the legislation. I talked to Mr. Cole about this. 
I am just concerned from the witnesses' point of view, the 
Alaskan native language was included in the bill. Why is it 
necessary?
    Mr. Laverdure. Thank you, Mr. Young. The actual legislation 
was proposed from the Congress, the Committee itself, and 
follows what has been Department policy, to include Alaskan 
natives generally in Federal programs.
    Mr. Young. That word generally, but keep in mind that this 
decision was made 20 years ago not to allow the Secretary to 
take land in trust. And Adidir made 27 tribes in the state by a 
stroke of the bid, overlapping the regional corporation lands. 
And their concern, the regional corporation, if in fact a 
village by one person or by the instigation of some legal 
counsel would suggest to ask the Secretary to take it under 
trust, would impede the ability for the corporations to have 
control of subsurface rights. And that is a decision we made 20 
years ago.
    And to my knowledge, the Governor, the attorney general, 
the Congressional delegation and the native leaders with the 
corporation were not notified about this language being 
included. And your Secretary unequivocally supports the bill 
with it in, and I think that is a disservice. This is a unique 
situation. We had a settlement in 1971, and we have gone 
through a series of amendments to the bill, and anytime that 
occurs, they should be in cooperation with the tribes 
themselves, the corporations themselves and not arbitrarily by 
the Secretary.
    And I just want to let the author know there are some real 
conflicts here, and unless they are addressed, we will have a 
little problem.
    Mr. Kildee. I am sure that the gentleman and I and the 
Chairman of the Committee will have discussions on this matter.
    Mr. Young. I thank you, because there are certain 
individuals in the state that happen to be lawyers, you 
mentioned them, that make money, and they could do nothing 
better than have a conflict amongst the people themselves. One 
is our nonprofit corporation tribal members, and then we have 
the corporations themselves, the regional corporations. And I 
don't want them making money off of the people in Alaska I 
don't think necessarily when we made this decision 20 years 
ago. And I yield back.
    Mr. Kildee. I thank the gentleman. The gentleman from 
Wisconsin, Mr. Kind.
    Mr. Kind. Thank you, Mr. Chairman. I don't have any 
questions for the Assistant Secretary. I just appreciate him 
and the other witnesses for their testimony here today, and I 
look forward to working with my friend from Michigan and others 
on the Committee to see what we can do to advance this 
important piece of legislation, especially in light of the 
recent Supreme Court decision and the impact that is going to 
have on tribal status throughout the country.
    So, Mr. Chairman, I look forward to the hearing. I want to 
thank you for the introduction of your legislation, for holding 
this hearing today, and we will hear what the testimony has to 
offer. I yield back. Thank you.
    Mr. Kildee. Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman. And I would like to 
thank the Assistant Secretary for coming as well today. I do 
have a couple of questions. I am trying to figure out what 
lands and what tribes we are talking about that would be 
affected by this bill. Has the Department produced an analysis 
of what tribes and tribal lands are affected by the Carcieri 
decision?
    Mr. Laverdure. The Department is still reviewing and 
ongoing the potential impacts of the decision, and we are 
approaching it on a case-by-case analysis at this time.
    Mrs. Lummis. And why is that taking so long?
    Mr. Laverdure. The political team, Mrs. Lummis, has just 
all been on board the last three months, and so there are 
career folks that were slowly moving toward reacting from the 
last Committee hearing. And now that we are on, we are pressing 
to try to get those answers as soon as we can.
    Mrs. Lummis. OK. Thank you. And I would like to add that to 
the list of things that Mr. Hastings would like to see in terms 
of information from the Department. I also was in attendance at 
that April hearing, and one of our witnesses testified that 
since 1934 approximately 6 million acres of land had been 
acquired in trust for American Indian tribes. Do you think that 
is a good ballpark number?
    Mr. Laverdure. Mrs. Lummis, at least approximately some 6 
to 7 million may have been added during that time, but that 
number also doesn't take into account the shift from fee to 
trust and then trust to fee. And in CFR Part 152, there is 
oftentimes as many trust parcels going into fee and a loss of 
that base. So it just takes into account the positive number, 
but it is not adjusted for the negative.
    Mrs. Lummis. OK. So it is a gross number rather than a net 
number.
    Mr. Laverdure. That is correct.
    Mrs. Lummis. It is a gross number as to the trust lands 
that were added?
    Mr. Laverdure. Yes. That is correct.
    Mrs. Lummis. But it doesn't net out lands that were 
converted from trust to fee?
    Mr. Laverdure. That is correct.
    Mrs. Lummis. OK. In your testimony, you asserted that the 
Carcieri decision was not consistent with the policy and 
ability of our nation to protect a suitable land base for 
Indian tribes, and I am trying to understand that statement 
accurately. Isn't Congress still able as the legislative arm of 
government to recognize a specific tribe and authorize the 
Secretary to take lands into trust on behalf of that tribe?
    Mr. Laverdure. Yes, Congress has the power to do that.
    Mrs. Lummis. OK. So you are just referring when you say it 
is inconsistent with the policy and ability of our nation to 
protect a suitable land base for Indian tribes, you mean our 
nation as reflected in the Department's authority, is that 
correct?
    Mr. Laverdure. Well, Mrs. Lummis, it is actually both 
political branches, the executive and congressional, because 
the Supreme Court historically has deferred to the political 
branches on recognition and not entered into the fray to say 
whether in fact. Typically a court could recognize as well and 
has done in the past but not very recently. So this decision 
runs contrary to that deference given to the political 
branches.
    Mrs. Lummis. So, once again, are you suggesting that the 
decision leaves out the executive and the legislative branch 
and leaves it to the courts, that only the courts under the 
decision are now in a position to make those determinations?
    Mr. Laverdure. No, not at all, Mrs. Lummis. All three 
branches of government, as Congress said in 1994, have been 
able to provide some type of recognition, but it has typically 
been through Congress and has evolved into a delegation over to 
the executive.
    Mrs. Lummis. OK. Now I am going in circles here. What does 
the Carcieri decision say with regard to authority to 
designate? That it is only with the legislative branch now?
    Mr. Laverdure. It calls into question the executive, the 
Secretary of the Interior's authority under Section 5 of the 
IRA when a tribe would not be under Federal jurisdiction in 
1934.
    Mrs. Lummis. OK. Now thanks. That is what I thought, and 
then I got to spinning there for a minute. I have heard the 
concern that the legislation we are receiving and looking at 
today could call into question the numerous Indian Claims 
Settlement Acts that have been negotiated by Congress, tribes 
and individual states. Do you agree that there is a potential 
impact to enacting this legislation before us today?
    Mr. Laverdure. I am sorry, Mrs. Lummis, that the decision 
would call into question any claims, Indian claims, that were 
out there previously that had been settled by the government?
    Mrs. Lummis. Yes, and negotiated by Congress, tribes and 
states. So do you think that this legislation that we are 
looking at now impacts those previously negotiated matters 
under the Indian Claims Settlement Act?
    Mr. Laverdure. If it is under the 1946 Indian Claims 
Commission Act and dealing with land issues, I do not think, 
but I would have to consult my lawyers, but my gut reaction is 
that Congress has already decided that and that that was not 
mentioned in the Carcieri opinion itself.
    Mrs. Lummis. Great. OK. Thank you. Thanks, Mr. Chairman. I 
yield back.
    Mr. Kildee. The Chair thanks the gentlelady from Wyoming. I 
have been informed that we may have votes in a few minutes, but 
I first of all would like to thank the gentleman from the 
Interior Department for his testimony. And we may want to 
submit, and all Members will have the right to submit, further 
questions to you for response to this Committee. And we will 
allow 10 days for submission of further questions or 
clarifications. And we thank you very much for your testimony.
    We will start the next panel, and we may be interrupted by 
a series of votes on the Floor, but let us try to start 
questions. We will call to the witness table The Honorable Bill 
Iyall, Chairman of the Cowlitz Indian Tribe, Longview, 
Washington; The Honorable Janice Mabee, Chairman, the Sauk-
Suiattle Indian Tribe, Darrington, Washington; The Honorable 
Sandra Klineburger, Chairwoman, Stillaguamish Tribe of Indians, 
Arlington, Washington; The Honorable Richard Blumenthal, 
Attorney General, Office of the Attorney General, Hartford, 
Connecticut; Mr. Steven Woodside, Sonoma County, Somerset, on 
behalf of the California State Association of Counties, 
Sacramento, California; Mr. Riyaz Kanji of Kanji & Katzen on 
behalf of The Grand Traverse Band of Ottawa and Chippewa 
Indians in Michigan.
    And they may step forward and proceed in the order in which 
I called their names.

STATEMENT OF THE HONORABLE BILL IYALL, CHAIRMAN, COWLITZ INDIAN 
                  TRIBE, LONGVIEW, WASHINGTON

    Mr. Iyall. Good morning, Mr. Kildee, Ranking Member 
Hastings and honorable members of the Committee on Natural 
Resources. My name is William Iyall. I am Chairman of the 
Cowlitz Indian Tribe in Washington State. I want to thank you 
for the opportunity to talk to you about the havoc that the 
Supreme Court caused with its decision on Carcieri v. Salazar.
    It is not just for the Cowlitz Indian tribe but for 
landless and disadvantaged tribes that I urge Congress and the 
Department of the Interior to take decisive action to make 
clear that all Federally recognized tribes will be treated 
equally under the Indian Reorganization Act.
    The Constitution makes clear that all Indian tribes are 
under the jurisdiction of the U.S. Congress, including the 
meaning that they are under at all times. Further, Federal 
statutory and case law makes clear that the tribe is subject to 
Congress' jurisdiction even if formal Federal recognition has 
not been extended to that tribe.
    Finally, the Congress amended the IRA in 1994 explicitly to 
instruct the Federal agencies to treat all tribes equally under 
the law. Despite all these well established legal principles, 
the Carcieri decision has caused such widespread confusion and 
consternation that Interior appears to have suspended all fee 
to trust applications, the processing of those, for all tribes 
that were not formally recognized in 1934.
    For a landless tribe like the Cowlitz, this has been a 
devastating turn of events. It is important to know a few 
historical facts about my tribe. We were first recognized by 
the United States in land session treaty negotiations in 1855. 
Because my ancestors refused to move to another tribe's 
reservation in another part of the State of Washington, the 
United States extinguished all of our original title without 
reserving any land for our tribe. In the 1930s, the BIA refused 
to let us adopt an IRA Constitution because we had no 
reservation.
    As a result, over the course of time, the BIA came to 
classify us as an unrecognized tribe even though we had a long, 
continuous history of interaction with Congress and Interior. 
In 1977, we petitioned Interior to restore our recognition. 
After a 25-year administrative ordeal, in January 2002, we were 
restored to Federal recognition through the Federal 
acknowledgment process. On the same day, we asked Interior to 
use its authority under the IRA to acquire trust land so the 
tribe could have its own reservation.
    In January of this year, after having spent seven years and 
millions of borrowed dollars to navigate the fee to trust and 
reservation proclamation processes, my tribe's applications 
were finally ready to go. A month later the Supreme Court 
handed down the Carcieri decision. It has been a devastating 
experience.
    In June, we submitted a lengthy analysis demonstrating that 
as a matter of law my tribe was under Federal jurisdiction when 
the IRA was enacted in 1934 even though we were not formally 
recognized at that time. We submitted over 260 Federal records 
demonstrating that not only the Federal government had 
jurisdiction as a legal matter but also that Interior was in 
fact exercising jurisdiction during that time period.
    Yet, in five months since we made that submission, we have 
heard very little from Interior and we nearly lost hope. If 
resolving the Carcieri debacle is one of Interior's priorities, 
that is difficult to see. While we await a decision, interest 
on the money we had to borrow to buy land and complete the fee 
to trust process continues to accrue at an alarming rate.
    Further, banks and lenders have become wary of loaning any 
new money to tribes unrecognized in 1934 because of the 
uncertainty Carcieri has created. Without the help of Congress 
and Interior, our debts will continue to mount. Our ability to 
exercise true self-determination will continue to be 
compromised. Soon another year will past and we will lose more 
elders who like my predecessor, Chairman John Barnett, he 
passed away without having set foot on a reservation, a Cowlitz 
reservation.
    Having played by the rules for so many years with our 
pending application, it is fundamentally unfair to change the 
rules for our tribe now. If Congress and Interior fail to 
address the very real mischief caused by Carcieri, the Cowlitz 
tribe may forever be landless and forever be treated as a 
second-class tribe by the very Federal government that is 
supposed to act as its trustee. I would be happy to answer any 
questions. Thank you. sir.
    Mr. Kildee. Mr. Iyall, we very much appreciate your 
testimony. We have a problem on the Floor right now. We will 
have a series of votes starting now, and there will be four 
votes I believe. Sometimes we talk between votes, so it will 
probably be an hour. And rather than to have you take an early 
lunch or something like that, I think we will stand in recess 
for an hour. I apologize for that, but that is the 
Congressional way down here. We just never know when we are 
going to have votes on the Floor. So I apologize for that, but 
we will be back at least within an hour to resume this hearing. 
And I thank you for your indulgence.
    [The prepared statement of Mr. Iyall follows:]

          Statement of The Honorable William Iyall, Chairman, 
                 The Cowlitz Indian Tribe of Washington

    Good afternoon Chairman Rahall, Vice Chairman Hastings, and 
honorable members of the Committee on Natural Resources. My name is 
William Iyall, and I am Chairman of the Cowlitz Indian Tribe of 
Washington State. I want to thank you for the opportunity you have 
given me to talk with you today about the havoc the Supreme Court has 
caused with its decision in Carcieri v. Salazar. It is not just for the 
Cowlitz Indian Tribe, but for all landless and disadvantaged tribes, 
and for all of Indian Country, that I urge the United States Congress 
and the United States Department of the Interior to waste not even one 
more minute before taking decisive action to make clear that all 
federally recognized tribes will be treated equally under the Indian 
Reorganization Act (IRA).
Executive Summary
    The United States Constitution makes perfectly clear that all 
Indian tribes are under the jurisdiction of the United States 
Congress--i.e., are ``under federal jurisdiction''--at all times. 
Further, a long history of federal statutory and case law makes clear 
that a tribe is subject to Congress' jurisdiction even if formal 
federal recognition has not been extended to that tribe. Finally, 
Congress amended the IRA in 1994 explicitly to instruct the federal 
agencies to treat all tribes equally under the law. Despite all of 
these well-established legal principles, the Carcieri decision has 
caused such widespread confusion and consternation that the Department 
of the Interior appears to have suspended processing fee-to-trust 
applications for all tribes that were not formally recognized in 1934. 
For a landless tribe like the Cowlitz, this has been a devastating turn 
of events.
    A more detailed history of the Cowlitz Indian Tribe is provided in 
an Appendix to this testimony, but at a minimum it is important to know 
a few historical facts about my Tribe. The Cowlitz Indian Tribe was 
first recognized by the United States in land cession treaty 
negotiations that took place in 1855. Because my ancestors refused to 
be removed to another tribe's reservation in a different part of what 
would become Washington State, the United States simply extinguished 
all of Cowlitz's aboriginal title by Executive Order without reserving 
any lands for our use. In the 1930s, the Bureau of Indian Affairs 
refused to let us adopt an IRA constitution because we had no 
reservation. As a result, over the course of time, the Bureau came to 
classify the Cowlitz as an ``unrecognized'' tribe even though we had 
had a long, continuous history of interaction with the United States 
Congress and with the Department of the Interior.
    In 1977 we petitioned the Department to restore our recognition. 
After a 25-year administrative ordeal, in January 2002 the Cowlitz 
Indian Tribe was restored to federal recognition through the 
Department's Federal Acknowledgement Process. On the very same day on 
which the Tribe's recognition was restored, the Tribe petitioned the 
Secretary of the Interior to use his authority under Section 5 of the 
Indian Reorganization Act (IRA) to acquire trust title to land in Clark 
County, Washington so that the Tribe could have a reservation there. I 
should mention that in 2005, we received a legal opinion from the 
federal government that confirms that we have strong historical and 
modern ties to the area in which our Clark County land is located. 
Letter from Penny J. Coleman, NIGC Acting General Counsel, to Chairman 
Philip N. Hogen, at 11 (November 22, 2005) (``[U]nquestionable parts of 
the historical record establish that the Cowlitz Tribe, throughout its 
history, used the Lewis River Property area for hunting, fishing, 
frequent trading expeditions, occasional warfare, and if not permanent 
settlement, then at least seasonal villages and temporary camps.'').
    After having spent nearly seven years (and multiple millions of 
borrowed dollars) to navigate the fee-to-trust and reservation 
proclamation processes, in late January my Tribe's fee-to-trust and 
reservation proclamation applications, finally, were poised for action 
by the Department. A month later, the Supreme Court handed down the 
Carcieri decision. For us, it has been a devastating--and surreal--
experience ever since. In June of this year we submitted a lengthy 
legal analysis (which has been provided to Committee staff in its 
entirety) demonstrating that as a matter of law my Tribe was under 
federal jurisdiction when the Indian Reorganization Act was enacted in 
1934, even though we were not formally federally recognized. We also 
submitted over 260 documents from federal records demonstrating that 
not only did the federal government have jurisdiction as a legal 
matter, but also that the Department of the Interior was in fact 
exercising jurisdiction during that time period. Yet five months after 
we made that submission, we have been given no indication of what 
standards the Department might impose, or what additional information 
it might need. We have been given no timeline as to when we might 
expect a decision from the Department. The truth is that we have heard 
so little from the Department during the eight months since Carcieri 
was handed down, that we have nearly lost hope. If resolving the 
Carcieri debacle is one of the Department's priorities, we are unaware 
of it.
    In the meantime, interest on the money we had to borrow to buy land 
and complete the fee-to-trust process continues to accrue at an 
alarming rate. (No federal funds have been appropriated to acquire land 
for Indians since the 1950s, so landless tribes like ours have no other 
option but to borrow.) New money to borrow is almost impossible to 
find, as banks and lenders have become wary of loaning money to tribes 
unrecognized in 1934 because of the uncertainty Carcieri has created. 
And, we have entirely missed the opportunity to participate in any 
reservation-based Stimulus (The American Recovery and Reinvestment Act 
of 2009) funding. This is no small loss. Unlike landed tribes, we have 
had precious little opportunity to participate in the federal 
government's economic recovery efforts.
    Without immediate help from Congress and from the Department of the 
Interior, our debts will continue to mount. Our inability to apply for 
reservation-based funding will be unresolved. Our ability to exercise 
true self determination will continue to be compromised. Eventually, 
the work we have done in compliance with the National Environmental 
Policy Act will become outdated and require new work--and new funding. 
Soon another year will pass and we will lose more elders, who, like my 
predecessor, Chairman John Barnett, passed away without ever having set 
foot on a Cowlitz reservation. If the Legislative and Executive 
branches fail to address the very real mischief caused by the Judicial 
branch, the Cowlitz Indian Tribe may forever continue to be landless 
and forever be treated as a second-class Tribe by the very federal 
government that is supposed to act as its trustee. With genuine 
respect, and with gratitude for this Committee's good work on the two 
``Carcieri'' fix bills currently pending before it, the Cowlitz Indian 
Tribe urges the United States Congress and the United States Department 
of the Interior to take decisive, politically courageous action now to 
ensure that no tribe will ever be treated as inferior to another tribe 
under the law.
Overview of the Carcieri Decision and Relevant Law
    In Carcieri v. Salazar, 555 U.S.__, 129 S.Ct. 1058 (2009), the 
Supreme Court held that the Secretary of the Interior did not have 
authority under Section 5 of the IRA to acquire trust title to land for 
the Narragansett Indian Tribe because that tribe was not ``under 
Federal jurisdiction'' when the IRA was enacted in 1934. The Court 
relied primarily on language elsewhere in the IRA that defines 
``Indians'' as ``all persons of Indian descent who are members of any 
recognized Indian tribe now under Federal jurisdiction....'' In 
concluding that the Narragansett were not ``under federal 
jurisdiction'' in 1934, the Court simply accepted the State of Rhode 
Island's uncontested assertion that that was the case. The Court's 
acceptance of the state's unsupported assertion is very distressing 
because the question of whether the Narragansett were under federal 
jurisdiction was never briefed by any party to the litigation. As a 
result, the decision seems to have created a great deal of uncertainty 
as to what ``under federal jurisdiction'' means and which tribes were 
under federal jurisdiction in 1934.
    This uncertainty can be resolved by looking to the United States 
Constitution, which endows the United States Congress with plenary 
authority--i.e., plenary legal jurisdiction--over all Indian tribes. It 
is true that Congress sometimes chooses to exercise its authority over 
Indian tribes in greater or lesser ways, or sometimes declines to 
exercise its authority at all. But because it is constitutionally-
endowed, Congress' jurisdiction over an Indian tribe cannot cease to 
exist unless, as was the concern of the people who wrote the IRA, the 
tribe itself has ceased to exist. Accordingly a tribe that can be shown 
to have existed as a tribe in 1934, by definition, is a tribe that was 
under federal jurisdiction in 1934 whether or not it was formally 
recognized. This analysis is supported by the concurring opinions in 
Carcieri, which make clear that federal jurisdiction and federal 
recognition are not one and the same, and recognize that a tribe under 
federal jurisdiction in 1934 may not have been federally recognized 
until a later time due to administrative error or other circumstances. 
Further support for this view is found in prior federal court analyses, 
in which courts have held that Indian tribes, although not federally 
recognized, are entitled to the benefits and protections of certain 
federal statutes and remain under the continuous legal jurisdiction of 
Congress even if there have been lapses in the Legislative or Executive 
Branch's exercise of that federal jurisdiction.
    This continuing, uninterrupted jurisdiction over Indian tribes is 
further underscored by Congress' authority to terminate federal 
recognition or supervision of tribes, and then later to restore federal 
recognition to such tribes. If Congress did not have continuing 
jurisdiction, restoration of federal recognition would not be possible. 
Similarly, the Department of the Interior's Federal Acknowledgement 
Process (FAP) (25 C.F.R. Part 83) also is based on the United States' 
continuing federal jurisdiction over all tribes because Interior relies 
on general authority delegated by Congress when it administratively 
extends federal acknowledgment to a tribe. In fact, all tribes that 
have been recognized through FAP, including the Cowlitz, are Indian 
groups which continuously have maintained their tribal identities since 
the time of first non-Indian contact or since previous federal 
acknowledgment, because the Part 83 regulations explicitly require 
this. Since the Department already has found the FAP tribes to have 
existed as bona fide tribal entities in 1934, they were, by definition, 
under federal jurisdiction in 1934.
    Finally, Congress itself directed in the 1994 Federally Recognized 
Indian Tribe List Act that federal agencies may not ``differentiate 
between federally recognized tribes as being `created' or `historic''' 
(see H. Rep. 103-781, at 3-4), and it prohibited federal agencies from 
classifying, diminishing or enhancing the privileges and immunities 
available to a recognized tribe relative to those privileges and 
immunities available to other Indian tribes in its 1994 amendment to 
the IRA, codified at 25 U.S.C. Sec. 476(f).
    We urge that the Carcieri opinion should be interpreted in a way 
that is consistent with these well-established, bedrock principles of 
federal Indian law. Any tribe that maintained tribal relations in 
1934--any tribe that truly existed as a tribe in 1934--is a tribe that 
was under federal jurisdiction. Because the Cowlitz Indian Tribe was 
under federal jurisdiction in 1934, and because the Cowlitz Indian 
Tribe is now federally recognized, the Secretary has authority under 
Sections 5 and 7 of the Indian Reorganization Act to acquire trust 
title to the Tribe's Clark County land and to issue a reservation 
proclamation for that same land.
Administrative Fix: The Department of the Interior
    Based on the fundamental principles of federal Indian law and 
existing statutory authority discussed above, the Department continues 
to have authority to take land into trust for tribes that are federally 
recognized today even if they were not federally recognized in 1934. 
Yet in the eight months since the Court's decision, the Department 
effectively has placed a moratorium on acquiring trust land for tribes 
that were not recognized in 1934. While we commend Interior for its 
initial outreach to tribes to discuss Carcieri and its potential 
impacts, we are very concerned that the Department has not taken any 
subsequent steps to act on long-pending fee-to-trust applications such 
as those submitted by the Cowlitz Tribe nearly eight years ago. The 
Department must implement the law, and must do it consistent with its 
trust responsibility. Every day it does not, it treats the Cowlitz 
Indian Tribe in a manner that is unequal to every other tribe for which 
the Department has acquired land in the past, including other FAP 
tribes.
Legislative Fix: H.R. 3697 and H.R. 3742
    While we hope that Interior will faithfully apply the law and 
continue to exercise its authority and trust responsibility, there is 
no doubt but that, absent action from Congress, the Department's 
exercise of its IRA authority will engender years of needless 
litigation, and tribes, the federal government, states, local 
governments and private parties will suffer the exorbitant costs 
associated therewith. Accordingly we implore this Congress to enact 
legislation to make crystal clear that the IRA is applicable to all 
federally recognized tribes regardless of the manner or date on which 
they received federal recognition. Congress must reconfirm the 
fundamental legal principles as well as the basic policies underlying 
passage of the IRA, and must confirm that the Department's 
implementation of the IRA over the past three-quarters of a century has 
been proper and entirely in keeping with those well-established legal 
principles and policies. Failure to act will result in unconscionable 
uncertainty, delay, and hardship for Indian country, and in particular, 
for landless tribes like Cowlitz.
    Finally, Congress (and the Department of the Interior) must not let 
opponents of Indian gaming hijack the Carcieri issue to further their 
own political goals. The rhetoric about ``reservation shopping'' is 
particularly offensive to a tribe like mine, which has no reservation 
at all. Concerns about Indian gaming issues are not appropriately 
addressed in the context of a Carcieri fix, and most certainly are not 
appropriately addressed by avoiding fee-to-trust decisions altogether. 
The Supreme Court's decision in Carcieri adversely affects not only 
acquisition of land in trust for tribes and individual Indians, but 
also the Secretary's authority to proclaim Indian reservations, to 
adopt tribal constitutions, and to create tribal corporations. As our 
trustee, we beg you to reject efforts to conflate Carcieri issues with 
gaming issues.
Conclusion
    On behalf of the Cowlitz Indian Tribe I want to underscore how much 
we appreciate the efforts made by this Committee to address the Court's 
misguided and confusing decision. I have no choice but also to stress, 
however, that any further delay in resolving the problems engendered by 
the Carcieri decision will have severe and devastating impacts on the 
Cowlitz Indian Tribe and others like it. Having played by the rules for 
so many years with our pending application, it is fundamentally unfair 
now to change the rules for tribes like ours. We respectfully, 
urgently, ask that the Department of the Interior use the law already 
available to it to resume processing fee-to-trust applications, and we 
respectfully, urgently ask Congress to protect us (and the United 
States) from noxious litigation by enacting legislation making clear 
that all tribes will be treated equally under the Indian Reorganization 
Act regardless of the time and manner in which they achieved federal 
recognition.
                                 ______
                                 

                                Appendix

                  Background/History of Cowlitz Tribe

    In 1846 the United States acquired the Oregon Territory from Great 
Britain pursuant to the Oregon Treaty. The Washington Territory was 
carved from the Oregon Territory in 1853. Less than a year after 
creation of the Washington Territory, the United States began to survey 
the Indian populations in western Washington to obtain land cessions 
from them. In 1854, Acting Commissioner of Indian Affairs (Charles E. 
Mix) instructed Washington territorial Governor Isaac Stevens to 
commence treaty negotiation with the Washington tribes. In February 
1855, Governor Stevens convened treaty negotiations with the Cowlitz 
and other tribes at the Chehalis River Treaty Council. The purpose of 
these negotiations was to obtain large land cessions from the tribes 
and to consolidate multiple tribes onto a smaller number of 
reservations.
    The Cowlitz agreed to cede lands to the United States, but treaty 
negotiations broke down because the Cowlitz refused to accept a 
reservation outside of its traditional territory. As a result, the 
Cowlitz, unlike most other Washington State tribes, was left without a 
reserved land base. When an Executive Order opened up all of 
southwestern Washington to non-Indian settlement in 1863, the Cowlitz 
lost possession of all of its traditional lands--despite the fact that 
the Tribe had not signed a cession treaty, the Tribe had not been 
compensated for those lands, and Indian title to those lands had never 
been extinguished by Congress. Within a short period of time, the 
Cowlitz Tribe became landless and its members were driven and scattered 
throughout Washington and Oregon.
    By the early twentieth century the federal government took the 
position that because the Tribe was landless, the federal government no 
longer owed a fiduciary duty to the Tribe and the United States ceased 
to acknowledge a government-to-government relationship with the Cowlitz 
Tribe. During this same time period in the early 1900s, my Tribe 
reorganized, elected a governing body, and initiated a series of 
efforts to seek compensation and lands to replace its aboriginal 
territory that had been taken. Several bills were introduced in the 
1920s and 30s, most of these, by my grandfather Frank Iyall, that would 
have given the Court of Claims jurisdiction to hear the Tribe's claims 
against the United States, including one vetoed by President Coolidge. 
But it was not until 1946 when Congress set up the Indian Claims 
Commission (``ICC'') to hear tribal claims against the United States 
that we had a forum in which to pursue our claims. We filed suit in 
1951, and in 1969, the ICC determined that we historically had 
exclusive use and occupation of an extensive area of southwest 
Washington. In 1973, the ICC granted a final compromise settlement in 
the amount of $1,500,000, to compensate the Tribe for the taking of 
those exclusively-used lands (this amounted to about 90 cents per 
acre).
    In the 1970s and 1980s my Tribe insisted that federal legislation 
authorizing the ICC award include a provision setting aside money for 
tribal land acquisition so that we could buy back land we had lost. But 
the Department of Interior consistently opposed various versions of 
settlement legislation over many years, objecting to the use of 
settlement funds for land acquisition because the Cowlitz Tribe was not 
federally recognized. In 1975, my Tribe had filed a petition for 
recognition with BIA, but the federal administrative acknowledgment 
process was lengthy and expensive (and funded entirely by Tribal 
members donations), and it was not finally completed until January 4, 
2002, more than 25 years later. As a result, it was not until 2004, two 
years after we gained federal recognition and twenty-one years after 
the ICC award, that Interior withdrew its objections and allowed our 
ICC settlement legislation to move forward with a land acquisition 
provision intact.
    On the same date that we were recognized, January 4, 2002, we 
submitted our initial application to have land in Clark County, 
Washington taken in trust on behalf of the Cowlitz Indian Tribe. Today, 
almost eight years later, we still do not have that land or any land in 
trust. The fee-to-trust process has been very lengthy and very 
expensive, as demonstrated by the timeline attached to this testimony. 
When we first started, BIA told us that an environmental assessment 
would be sufficient for NEPA compliance, so we completed an EA. But 
later on, BIA decided that it needed to prepare a much more lengthy and 
detailed environmental impact statement, or EIS, to evaluate the 
environmental impacts for fee-to-trust acquisitions like ours, so we 
switched gears and paid for BIA's preparation of an EIS. The 
preparation of the EIS alone cost over $ 3 million and took nearly four 
years to complete, including extended public comment periods at every 
step in the process, and extra public meetings, beyond what is required 
by NEPA. BIA also has made a number of changes to its internal 
requirements and guidance for fee-to-trust acquisitions during the time 
our application has been pending, but at every turn, we have done what 
is necessary to follow whatever the rules are--in fact, we have gone 
beyond what is required. When the BIA Region finally sent a decision 
package to BIA Headquarters in Washington in January of this year, we 
thought we were near the finish line. Unfortunately, in February the 
Supreme Court issued its decision in Carcieri v. Salazar, which has 
thrown decades of well-established Indian jurisprudence and 
Departmental practice into question, and appears to have paralyzed the 
Department to such a degree that it has been unable to act on pending 
fee-to-trust applications.
                                 ______
                                 
    [Recess.]
    Mr. Kildee. The Committee now will resume its 
deliberations. We now call upon The Honorable Janice Mabee, 
Chairman of the Sauk-Suiattle Indian Tribe, Darrington, 
Washington.

    STATEMENT OF THE HONORABLE JANICE MABEE, CHAIRMAN, SAUK-
         SUIATTLE INDIAN TRIBE, DARRINGTON, WASHINGTON

    Ms. Mabee. Thank you, Mr. Chairman. Mr. Chairman, members 
of the Committee, thank you for the opportunity to provide 
testimony on behalf of the Sauk-Suiattle Indian tribe in 
support of clarifying the Indian Reorganization Act of 1934 
through H.R. 3742.
    In February of 2009, the Supreme Court issued the decision 
in Carcieri v. Salazar that is creating significant confusion 
in an important area of Federal Indian law, the Indian 
Reorganization Act of 1934. The Supreme Court overturned 70 
years of longstanding interpretation and held that the phrase 
``now under Federal jurisdiction'' limits the Department of the 
Interior's authority to provide benefits under the IRA to only 
those tribes under Federal jurisdiction on June 8, 1934.
    The passage of the IRA in 1934 marked a dramatic change in 
Federal Indian policy. Congress shifted from policies intended 
to destroy the Indian tribes to in favor of legislation to 
revitalize tribal governments and Indian culture and restore 
tribal land bases that had been decimated by prior Federal 
policies.
    The Carcieri decision is at odds with Congress' intent to 
restore tribal self-determination. In particular, this decision 
runs counter to Congress' intent in the 1994 amendments to the 
IRA, which provides equal treatment to all Indian tribes 
regardless of how or when they received Federal recognition.
    The Sauk-Suiattle tribe is a tribe that has been adversely 
impacted by this confusion. We are located in the Cascade 
Mountains of northwest Washington near the confluence of the 
Sauk and the Suiattle rivers where we have lived for countless 
generations. The tribe has adjudicated rights under the Point 
Elliott Treaty, signed by Aku Mahu. In 1913, Congress 
appropriated funds for the purchase of lands to be held in 
trust for the Sauk-Suiattle tribe.
    Long before there were any white people in the area, we 
lived on both sides of the Sauk River at Sauk Prairie. This was 
the site of one of our major villages. However, in the 1880s, 
the United States gave our fertile lands at Sauk Prairie to 
non-Indians, who burned our long houses that had stood there 
for generations, leaving our people landless and scattered. 
Many tribal members, including my great grandparents, retreated 
to the more remote lands up the Suiattle River, where some 
members built homes.
    I am the great-great granddaughter of Captain Moses, a 
hereditary Chief of the Sauk-Suiattle. I grew up on the 
Suiattle River on a trust allotment which the United States in 
an effort to address the displacement from our land issued 
patents to us in the early 1920s. This was long before the 
passage of the IRA in 1934. I vividly remember bathing every 
morning in the icy glacier runoff of the Suiattle River, hiding 
in huge cedar root baskets woven by my great grandmother, who 
helped raise me, learning to gather and weave and skin game. We 
lived by fishing, hunting and gathering.
    In addition to the destruction of one of the Sauk-Suiattle 
tribe's major villages, the tribe suffered in another way. 
Ignorance by some led to the belief that the Sauk-Suiattle were 
not a separate tribe. We existed deep in the Cascade Mountains, 
a uniquely distinct tribe, referred to by the BIA as a 
traditional tribe. Little was known about our people, and 
nonresearchers for their convenience often lumped us in with 
other tribes. But over the decades, the tribe continued to 
exist and to live in the areas of its homeland despite the 
challenges not faced by the larger tribes that were given 
substantial reservations.
    In a 1972 letter from the Deputy Commissioner, the tribe 
was described as having an organizational status that was 
traditional in nature. On April 6, 1935, the tribe voted to 
adopt the IRA. In 1975, the tribe adopted a constitution and 
was approved by the Secretary of the Interior under the IRA. In 
1982, two small parcels of land, totaling 23 acres, were taken 
into trust for the tribe and designated as our reservation. The 
land, however, is broken into two parcels, miles apart, and is 
insufficient for the tribe's housing, for tribal government 
facilities and for economic development and is threatened by 
floods from the Sauk River, which has been designated as wild 
and scenic.
    Despite the treaties dating back to the mid 18th century, 
despite the 1913 Congressional appropriation, despite the 
allotments dated to the earliest 20th century and despite an 
April 6, 1935, vote by the tribe to accept the IRA in order to 
organize under the Act, the Sauk-Suiattle tribe is being 
adversely impacted by the Carcieri decision. What more do you 
want to do to us?
    And now, because of the confusion of the Carcieri decision 
and unwillingness of the regional solicitor to make decisions 
without written guidance from the Department of the Interior, a 
simple fee to trust application for a 1.64 acre parcel of land 
adjacent to our reservation has been put on hold.
    The Sauk-Suiattle tribe does not have a casino. We are 
simply trying to acquire enough land to provide homes for our 
members and sites for tribal governmental facilities and 
economic development so that our tribal members and their 
families can obtain employment and receive tribal government 
services near their homes. We have built 20 homes.
    Mr. Kildee. If the gentlelady would try to terminate her 
testimony. Your time has expired. You may finish up with a 
couple of sentences.
    Ms. Mabee. OK. We have built 20 homes on our reservation, 
but they are insufficient to meet our tribal needs. It is 
crucial to clarify that the IRA is not related to Indian 
gaming. Indian gaming is regulated under the Gaming Regulatory 
Act where Congress restricted gaming to lands in 1988. This 
issue is much broader. The IRA is a toolbox organized for 
tribal communities and building economic growth. We are 
concerned that these tools are weakened and that the Indian 
reservations and cities continue and states that surround them 
need the economic development the most.
    Mr. Kildee. Thank you very much for your testimony. Your 
entire testimony will be made part of the record.
    Ms. Mabee. Thank you.
    [The prepared statement of Ms. Mabee follows:]

               Statement of The Honorable Janice Mabee, 
               Chairman of the Sauk-Suiattle Indian Tribe

    Mr. Chairman, members of the Committee, thank you for the 
opportunity to provide testimony on behalf of the Sauk-Suiattle Indian 
Tribe in support of clarifying the Indian Reorganization Act of 1934 
through H.R. 3742, ``To amend the Act of June 18, 1934, to reaffirm the 
authority of the Secretary of the Interior to take land into trust for 
Indian tribes.''
    In February of 2009, the Supreme Court issued a decision in 
Carcieri v. Salazar that is creating significant confusion in an 
important area of federal Indian law, the Indian Reorganization Act of 
1934 (IRA). The Supreme Court overturned seventy (70) years of 
longstanding interpretation and held that the phrase ``now under 
Federal jurisdiction'' limits the Department of Interior's authority to 
provide benefits under the IRA to only those Indian tribes ``under 
federal jurisdiction'' on June 8, 1934.
    The passage of the IRA in 1934 marked a dramatic change in federal 
Indian policy. Congress shifted from policies intended to destroy 
Indian tribes in favor of legislation to revitalize tribal governments 
and Indian culture, and to restore tribal land bases that had been 
decimated by prior federal policies. The Carcieri decision is at odds 
with Congress' intent to restore tribal self-determination. In 
particular, this decision runs counter to Congress' intent in the 1994 
amendments to the IRA which provide equal treatment to all Indian 
tribes regardless of how or when they received federal recognition.
    The Sauk-Suiattle Indian Tribe is a tribe that has been adversely 
impacted by this confusion. We are located in the Cascade Mountains of 
northwestern Washington near the confluence of the Sauk and Suiattle 
Rivers, where we have lived for countless generations. The Tribe has 
adjudicated treaty rights under the 1855 Point Elliott Treaty. 
1 And in 1913, Congress appropriated funds for the purchase 
of lands to be held in trust for the Sauk-Suiattle Tribe. 2
---------------------------------------------------------------------------
    \1\ United States v. Washington, 384 F.Supp. 312 (W.D.Wash. 1974).
    \2\ Act of June 30, 1913 (38 Stat. 101). Although the legislation 
refers to the ``Skagit Tribe of Indians,'' that was not the specific 
name of any tribe, and was understood by the Department of the Interior 
to refer to both the Sauk-Suiattle Tribe and the Upper Skagit Tribe.
---------------------------------------------------------------------------
    Long ago, before there were any white people in the area, we lived 
on both sides of the Sauk River at Sauk Prairie. This was the site of 
one of our major villages. However, in the 1880's, the United States 
gave our fertile lands at Sauk Prairie to non-Indians, who burned the 
Tribe's longhouses that had stood there for generations, leaving my 
people landless and scattered. Many tribal members, including my great-
grandparents, retreated to more remote land up the Suiattle River, 
where some members built houses.
    I grew up on the Suiattle River, on a trust allotment which the 
United States, in an effort to address the displacement from our land, 
issued trust patents to us in the early 1920's. This was long before 
the passage of the Indian Reorganization Act of 1934. I vividly 
remember bathing every day in the icy glacier runoff of the Suiattle 
River, hiding inside huge cedar root baskets woven by my great 
grandmother who helped raise me, learning to gather and weave and skin 
game. We lived by fishing, hunting and gathering.
    In addition to the destruction of one of the Sauk-Suiattle Tribe's 
major villages, the Tribe suffered in another way. Ignorance led to the 
belief by some that Sauk-Suiattle was not a separate tribe. We existed 
deep in the Cascade mountains, a uniquely distinct tribe, referred to 
by the BIA as a ``traditional tribe.'' Little was known about our 
people and non-Indian researchers, for their convenience, often lumped 
us in with other tribes. But over the decades, the Tribe continued to 
exist and to live in the area of its homeland, despite the challenges 
not faced by larger tribes that were given substantial reservations. In 
a 1972 letter from the Deputy Commissioner, the Tribe was described as 
having an ``organizational status'' that was ``traditional in nature.'' 
On April 6, 1935 the Tribe voted to adopt the IRA. In 1975, the Tribe 
adopted a Constitution that was approved by the Secretary of the 
Interior under the authority of the IRA.
    In 1982, two small parcels of land totaling about 23 acres were 
taken into trust for the Tribe and designated as our Reservation. That 
land, however, is broken into two parcels miles apart and is 
insufficient for tribal housing, for tribal government facilities, and 
for economic development, and is threatened by flooding from the Sauk 
River, which has been designated as ``wild and scenic.''
    Despite treaty rights dating from the mid-eighteenth century, 
despite the 1913 Congressional appropriation, despite allotments dating 
from the early twentieth century, and despite an April 6, 1935 vote by 
the Tribe to accept the IRA, in order to ``organize,'' under the Act, 
the Sauk-Suiattle Tribe is being adversely impacted by the Carcieri 
decision. What more do you want to do to us?
    And now, because of the confusion generated by the Carcieri 
decision and the unwillingness of the Regional Solicitor to make 
decisions without written guidance from the Department of the Interior 
a simple fee to trust application for a 1.64 acre parcel of land 
adjacent to the reservation, has been put on hold.
    The Sauk-Suiattle Tribe does not have a casino. We are simply 
trying to acquire enough land to provide homes for our members and 
sites for tribal government facilities and economic development so that 
tribal members and their families can obtain employment and receive 
tribal government services near their homes. We have built twenty 
houses on our reservation, but they are insufficient to meet tribal 
demand and are threatened by flooding.
    We feel it is critical to clarify that the IRA is not related to 
Indian gaming. Indian gaming is regulated under the Indian Gaming 
Regulatory Act, (IGRA) where Congress restricted gaming on lands 
acquired after 1988. The issue is much broader and more fundamental. 
The IRA is a toolbox for restoring tribal communities and building 
economic growth. We are concerned that these tools are weakened at a 
time when Indian reservations and the cities, counties and states that 
surround them, need economic aid the most.
    Tribes that were not formally ``recognized'' in 1934 typically do 
not have large reservations. In fact, they are the very tribes most in 
need of having land taken into trust for housing, government 
facilities, and economic development. By treating tribes formally 
``recognized'' after 1934 differently than those recognized earlier, 
the Supreme Court has essentially punished the tribes who have already 
suffered the most, and who face the greatest struggle to preserve a 
homeland, provide government services, and foster economic development. 
I hope that the Committee will recognize this fundamental injustice, 
and will act quickly and decisively to correct it.
    The Sauk-Suiattle Tribe is very concerned that if the Carcieri 
decision stands unaddressed by Congress, it will engender confusion and 
litigation on a broad range of issues. The IRA is a comprehensive 
federal law that provides not only the authority of the Secretary to 
restore tribal lands, but also for the establishment of tribal 
constitutions and tribal business structures. Disorder in this area of 
the law will negatively affect all types of economic development, 
contracts and loans, tribal reservations and lands, and could 
negatively affect tribal and federal jurisdiction, public safety, and 
provision of services on reservations across the country.
    Legislation is currently pending in both the Senate and the House 
that would provide a solution and clarify the authority under the IRA. 
The Senate version, S. 1703 sponsored by Senator Byron Dorgan, already 
has eight (8) co-sponsors. Two functionally identical Carcieri fixes 
have also received significant support in the House, sponsored by 
Representative Dale Kildee and Representative Tom Cole.
    On behalf of the Sauk-Suiattle people I urge the Committee to 
support this legislation.
    Thank you.
                                 ______
                                 
    Mr. Kildee. Our next witness is The Honorable Sandra 
Klineburger, Chairwoman of the Stillaguamish Tribe of Indians, 
Arlington, Washington.

  STATEMENT OF THE HONORABLE SANDRA KLINEBURGER, CHAIRWOMAN, 
    STILLAGUAMISH TRIBE OF INDIANS, ARLINGTON,   WASHINGTON

    Ms. Klineburger. Good afternoon. Congressman Kildee, 
Ranking Member Hastings and members of the Committee, thank you 
for inviting me here today to provide testimony to the 
Committee on a critical issue confronting all of Indian 
Country, addressing the Supreme Court decision of Carcieri v. 
Salazar.
    My name is Sandra Klineburger. I am the Chairwoman of the 
Stillaguamish tribe of Indians. Our tribal community supports 
both H.R. 3742 and H.R. 3697 because we firmly believe that 
Carcieri was wrongly decided and, more importantly, that it 
established highly problematic and ultimately unworkable 
American Indian policy.
    Carcieri does not technically apply to Stillaguamish, 
although it has created legitimate issues for us. The case has 
created uncertainty amongst state and local governments, what 
the relationship is with tribal governments. This decision has 
provided opponents of Indian tribes with a base to hold or 
prolong tribal trust status applications. The case has 
potential to create unnecessary and expensive litigation for 
tribes across the nation.
    A little history about my tribe and who we are. My great-
great grandfather was Chief Cha Dis. He signed our treaty, the 
Point Elliott Treaty, in 1855. My grandmother was the late 
Chief Esther Ross, who traveled these hallways, who traveled to 
Washington numerous times over 50 years of her life. When she 
grew up, she didn't know she was native. She was 19 when she 
found out she was native. She came back to the Stillaguamish 
territory to regain the Stillaguamish tribe so one day her 
grandchildren and great grandchildren and generations after 
would have an identity. Her dream was to have land for housing, 
have the reservation, have the generations that would come know 
the hunting, know the fishing, know the history and know the 
culture.
    There are many tribes that have the economic development 
part taken care of. Our tribe is bringing back the history. 
This year was our first year of having a first salmon ceremony 
since generations past, and it is a remarkable sight to see our 
tribal members and our young children coming out, learning the 
songs, learning the dances, trying to keep our culture of our 
tribe alive.
    Like many tribes across this great nation, the United 
States of America, our culture is foremost the number one 
important to every tribe. The Carcieri decision impacts it in 
so many ways. For treaty tribes that are not impacted directly, 
there still is uncertainty of what can happen. If we put in 
that application, what issues will come about? What problems 
are going to be caused from this?
    The same issues that we are dealing with are the same 
issues that our grandparents and great grandparents dealt with 
already before us. We are here asking your help, asking you to 
help pass this. We are here asking you to understand the 
importance of this not only for our children, our grandchildren 
and many generations to come, to make sure that this here 
doesn't cause a historical issue for them.
    Mr. Chairman, Ranking Member and Committee members, our 
tribe has created many different programs. We have a buffalo to 
help with our diabetic prevention program, help supplement for 
our elders, a transportation program to help our elders get to 
their medical, help our tribal members that do not have a 
vehicle or license to be able to get to work, trying to make 
them more self-efficient. We also have tribal members that we 
have to house in hotels because we have no land yet for a 
reservation for housing. This is not right. This is not part of 
what my grandmother's dream was for our tribe, her people.
    One person alone fought to get this tribe together. Amongst 
many other tribes have the same type of story of history, my 
goal for our tribe is to make sure that our history and our 
culture is brought back. Being able to have land and put it 
into trust without problems is what we need. We need this to be 
able to not worry about how we are going to do our housing, how 
we are going to protect our burial sites, and being able to 
have a clinic or a court system so our tribal members are 
protected.
    Right now the way our tribe is set up our court system is 
not on trust land. We have very little trust land, so when 
something happens, a domestic problem, the county can't help 
because they are native and there are only parts of trust land 
that they can cover. This affects a wide variety of issues not 
only for our tribe but for other tribes even though we are not 
directly affected. As a Native American, issues in Indian 
Country affect every native, no matter if you are Federally 
recognized or not. That is part of being a Native American.
    Mr. Kildee. If the gentlelady would take another minute or 
so to finish up her testimony.
    Ms. Klineburger. I thank you for the opportunity to come 
here today and share my story with you. In addition to my oral 
testimony, I have submitted written testimony to this Committee 
with more detail. I am walking in the footsteps of my 
grandmother, Chief Esther Ross, and while they are too large 
for me to fill, I am compelled to be here to help finish the 
work she started in the same halls, in the same buildings.
    Unfortunately, province has brought me to D.C. to fight a 
battle similar to what she fought nearly 30 years ago. As the 
designated leader of my tribe, I ask you to assist us in 
declaring once and for all that all Indian tribes are equal by 
passing H.R. 3742 and H.R. 3697. Thank you.
    [The prepared statement of Ms. Klineburger follows:]

      Statement of The Honorable Sandra Klineburger, Chairwoman, 
                     Stillaguamish Tribe of Indians

Introduction
    Good afternoon, Chairman Rahall, Ranking Member Hastings, and 
Members of the Committee. Thank you for inviting me here today to 
provide testimony to the Committee on a critical issue confronting all 
of Indian Country--addressing the divisive Supreme Court decision of 
Carcieri v. Salazar, 129 S.Ct. 1058 (2009).
    My name is Sandra Klineburger, and I am the Chairwoman of the 
Stillaguamish Tribe of Indians. Our tribal community supports both H.R. 
3742 and H.R. 3697 because we firmly believe that Carcieri was wrongly 
decided, and more importantly, that it establishes highly problematic 
and ultimately unworkable American Indian policy. To be clear, as the 
Supreme Court in Carcieri expressly acknowledged, the decision does not 
impact the Stillaguamish Tribe. As discussed below, Stillaguamish has, 
at all relevant times, maintained a federal-tribal relationship since 
at least 1855. This is well before the enactment of the Indian 
Reorganization Act of 1934.
    Although not directly implicated, the Stillaguamish Tribe still 
supports a fix to the problems created by Carcieri. We see the 
infirmity of the interpretation of the Indian Reorganization Act by the 
Supreme Court in the Carcieri decision. If this decision is not 
addressed, there will be ``have's'' (those who can take land into 
trust) and ``have not's'' in Indian Country.
    Our community knows what it is like to be part of the ``have 
not's.'' For decades, our federal-tribal relationship was not 
acknowledged by the Department of Interior. My grandmother, Chief 
Esther Ross, worked tirelessly to have our Tribe's federal-tribal 
relationship acknowledged. After many decades of work, our tribe was 
successful in that endeavor. But we are mindful that Indian policy 
should strive to treat equally all tribal communities. For this and 
other reasons, the Stillaguamish Tribe strongly believes that the 
Carcieri decision should be addressed through legislation.
    In my testimony today, I would like to talk with you about the 
Stillaguamish tribal history and Carcieri's technical inapplicability 
to Stillaguamish. Then I will describe the negative consequences being 
endured by our Tribe and all of Indian Country because of Carcieri. 
Finally, I will explain the myriad reasons why a legislative fix is 
needed for the good of the Nation generally and Indian Country 
specifically.
    This Committee, I know, understands the essential nature of land to 
the survival and existence of Native American tribes, tribal 
sovereignty and tribal culture. Without land, tribes lack the ability 
to become more self-sufficient, and tribal governments cannot improve 
the well-being of individual tribal members. On behalf of the 
Stillaguamish Tribe of Indians, I urge you to promptly pass H.R. 3742 
and/or H.R. 3697 to remedy the damage done by Carcieri and remove the 
multitude of ill effects currently impairing the great progress that 
Indian Country is prepared to make for all Americans and Native 
Americans alike.
Carcieri Does Not Technically Apply to Stillaguamish
    At the outset, I want to make clear that Stillaguamish is 
technically not affected by Carcieri v. Salazar for several reasons.
    First, Stillaguamish signed the Treaty of Point Elliott. As made 
clear in United States v. Washington, 384 F. Supp 312 (W.D. Wash. 
1974); aff'd, 520 F.2d 676 (9th Cir. 1975); cert. denied, 423 U.S. 1086 
(1976), Stillaguamish is a party to the Treaty, and the United States 
is--and has been since 1855--responsible to honor and protect these 
Treaty rights.
    Second, numerous opinions from a variety of federal courts have 
determined that Stillaguamish Treaty rights vested upon execution, 
thereby subjecting Stillaguamish to federal jurisdiction since 1855.
    Third, Congress has appropriated funds to the Stillaguamish tribe 
for over six decades. This demonstrates the Federal Government's 
ongoing oversight and involvement in the Stillaguamish Tribe's affairs. 
At no time, has Congress terminated the federal jurisdiction with 
respect to Stillaguamish.
    Fourth, in 1980, a Solicitor's Opinion provided a detailed analysis 
as to why Stillaguamish was subject to federal jurisdiction prior to 
1934, thereby affirming that the Tribe was able to have land taken into 
trust on our behalf. See Memorandum to Asst. Sec., Indian Affairs, from 
Associate Solicitor, Indian Affairs, Re: Request for Reconsideration of 
Decision Not to Take Land in Trust for the Stillaguamish Tribe, October 
1, 1980 (hereinafter ``Solicitor's Opinion'').
    Finally, it is noteworthy that in both Justice Breyer's concurring 
opinion and Justice Souter's concurring/dissenting opinion in Carcieri 
itself, Stillaguamish's particular history is cited as evidence of a 
tribe that was ``under federal jurisdiction'' and was merely 
administratively overlooked by the Federal Government.
    In short, it is clear from the record, that Stillaguamish has at 
all times maintained an unbroken relationship with the United States. 
Indeed, the Supreme Court expressly recognized that relationship in 
Carcieri. Nevertheless, we support a Carcieri fix. Such legislation 
would remove any extant uncertainties and unquestionably treat all 
tribes on equal footing. That is sound Federal Indian policy.
Stillaguamish Tribal History and Recognition
    As stated above, my grandmother, Chief Esther Ross, devoted her 
entire life to ensuring that the Stillaguamish people were acknowledged 
as a Native nation by the Federal Government. This history is relevant 
to summarize because it exhibits the level of detailed scrutiny 
Stillaguamish underwent in confirming the federal-tribal relationship.
    In 1855, Chief Cha-Dis--the Chief of Stillaguamish at that time--
signed the Treaty of Point Elliott along with several other tribes in 
present-day Washington state. See Treaty of Point Elliott, U.S.-
Duwamish, Suquamish, and other tribes, Jan. 22, 1855, 12 Stat. 927. 
Ratified in 1859, the Treaty ceded Stillaguamish aboriginal land to the 
Federal Government in exchange for money, reservation land, fishing 
rights, the protection of the United States, and a number of other 
provisions. Based on the Treaty of Point Elliott and the on-going 
commitments set forth therein, it is undeniable that Stillaguamish has 
been under federal jurisdiction since 1855. In fact, Stillaguamish's 
status has been heavily and frequently scrutinized by various federal 
courts--all of which arrived at the same answer--that Stillaguamish has 
been and is subject to federal jurisdiction.
    In 1934, Stillaguamish--and other signatory tribes to the Treaty of 
Point Elliot--sued the Federal Government in the Court of Claims. See 
Duwamish, et al. Indians, v. United States, (Docket F-275, 79 Ct. Cl. 
530 (Ct. Cl. 1934). That court determined that Stillaguamish was a 
proper party to the lawsuit as it was undeniably a party to the Treaty. 
Duwamish, et al. Indians, 79 Ct. Cl. 530, *2. In 1965, pursuant to the 
Indian Claims Commission Act, Stillaguamish sued the United States for 
unconscionable consideration for lands ceded under the Treaty. 
Stillaguamish Tribe of Indians v. United States, Docket No. 207, 15 
Ind. Cl. Comm. 1 (I.C.C. 1965). The Commission engaged in extensive 
fact-finding and concluded that Stillaguamish was a party to the Treaty 
and could properly bring the action against the United States. 
Stillaguamish Tribe of Indians, 15 Ind. Cl. Comm. at 1, 31-32, 36, 38, 
41.
    In 1974, Article V of the Treaty of Point Elliott was the subject 
of major litigation on fishing rights in the State of Washington. 
United States v. Washington, 384 F. Supp 312 (W.D. Wash. 1974). 
Stillaguamish was forced to intervene in the case to defend its Treaty 
rights. The court determined that Stillaguamish was a party to the 
Treaty of Point Elliott and that Stillaguamish enjoyed vested treaty 
rights to fish. Id. at 401-02, 406; see also United States v. 
Washington, 520 F.2d 676, 693 (9th Cir. 1975).
    The struggle for confirmation of our tribal status came to a head 
in 1980 when the Solicitor for the Department of Interior published an 
Opinion on the status of Stillaguamish. See Solicitor's Opinion. By way 
of background, in the late 1970's, Stillaguamish wanted to acquire land 
in order to re-establish a tribal land base to preserve the very 
sovereignty that our leaders had worked so hard to obtain. The 
Solicitor's Opinion analyzed 25 U.S.C. Sec. 479--the same provision at 
issue in Carcieri--and unequivocally determined that Stillaguamish was 
subject to federal jurisdiction, thereby providing the Secretary of 
Interior with the requisite authority to take land into trust on behalf 
of Stillaguamish. Id. While Chief Esther Ross's struggle to confirm our 
status ended in 1980, the Supreme Court has created new negative 
ramifications for the rest of Indian Country by ignoring the policy and 
purpose of the IRA in rendering a decision in Carcieri. This Congress 
should preclude other tribes from undergoing the painful experience 
that we endured for nearly a century by passing legislation to fix 
Carcieri.
Carcieri Ignores the Policy and Purpose of the Indian Reorganization 
        Act
    The Indian Reorganization Act (IRA) attempted to end, among other 
things, the federal policy of allotment that had ravaged tribal 
communities across the United States. In particular, the IRA attempted 
to afford tribes that did not have a reservation, or had a very small 
reservation, with an avenue to acquire land in order to establish a 
permanent homeland. The IRA sought to strengthen tribal communities by 
empowering them to obtain land and create a land base so that tribes 
could preserve and protect tribal culture, values, and sovereignty. The 
IRA affirmatively recognized the common sense principle that land is 
critical to the survival of all tribes. For Stillaguamish, one can see 
how the IRA has played out in our tribal history. Currently, 
Stillaguamish has less than 250 acres of land in trust and our tribal 
government is proceeding with acquiring additional land to provide 
housing for tribal members, continue our environmental conservation 
efforts, and preserve our culture and history in the region.
    Unfortunately, this purpose of providing an avenue to acquire land 
for tribes--explicit in the text of the IRA--was of no importance to 
the Supreme Court's consideration of Carcieri v. Salazar. Instead, the 
Court hinged its ruling on exploiting a technical absurdity found in a 
single word in the entire Act. The Court used this one word to read a 
limiting factor into the clearly expressed, broad policy of the IRA: 
tribes need to have land in order to maintain their existence.
    The United States has an trust obligation to all Indian tribes--not 
just a certain select few--and this decision undermines that well-
settled, long-standing concept. This Congress, and this Committee in 
particular, acknowledge and respect the trust relationship and the 
Federal Government's continuing obligation to all Indian tribes that is 
directly served by passing legislation to fix the destructive rule 
announced in Carcieri.
Carcieri Further Mires an Already Long Process for Land-into-Trust 
        Applications
    A primary consequence of Carcieri is the creation of unnecessary 
delay in the processing of land-into-trust applications. On the ground, 
this consequence impedes our efforts to provide housing to tribal 
members that are currently without homes. Our tribal members are 
suffering in this economy. Stillaguamish tribal government is working 
to obtain housing for displaced tribal members. These individuals have 
a tribal government that looks out for their well-being; but it is 
currently prevented from permanently addressing their needs due to 
Carcieri.
    Plainly, this decision provides opponents of Indian tribes with a 
frivolous basis to impede our attempts to improve the quality of life 
for all our tribal members. We are not able to take land we currently 
own in fee and place it into trust status due to the uncertainty 
created by Carcieri. Accordingly, this uncertainty creates further 
delay in an already slow and overly burdensome land-into-trust process.
    The tribal government cannot move forward with providing permanent 
housing to these individual members until land is placed into trust 
status. As this country has come to understand all to well in the past 
few years, housing is a pillar of the economy and allows people to 
provide for themselves and their families. Aid to our tribal members is 
unnecessarily delayed due to Carcieri. How long must our tribal members 
with both young children and elderly relatives be forced to stay in a 
cramped one-room motel? Were it not for Carcieri, Stillaguamish would 
be taking immediate action to remedy situations like those to care for 
our members.
    Stories like this reverberate throughout Indian Country. Our 
situation is not necessarily unique in that we are delayed and limited 
by Carcieri. Other tribes feel the same effects; regardless of our 
diverse tribal histories, we are all in the same situation--Carcieri 
impedes the progress that we are ready to make on behalf of our tribal 
members. For our people, this simply adds delay when we are trying to 
improve the welfare of our community by providing quality housing to 
tribal members who are in desperate need of assistance.
Carcieri Creates Classes of Indian Tribes: Have's and Have Not's
    In addition to prolonging an already protracted land-into-trust 
process, Carcieri creates two classes of Indian tribes: ``have's'' and 
``have not's.''
    Carcieri reinvents the meaning of a federally recognized Indian 
tribe and creates unnecessary confusion as to the legal status and 
rights of Indian tribes. This re-engineering of the IRA is unwarranted 
and casts a long shadow of doubt over all tribes' ability to maintain a 
land base in order to preserve our culture, values, and sovereignty. It 
goes without saying that Carcieri gave short shrift to the critical 
policy, intent, and purpose of the IRA in arriving at the new rule 
regarding the Secretary of Interior's authority to place land into 
trust. Such division can simply have no place in the United States. 
This country has endured periods of division in all forms--religious, 
racial, gender, and others--none of which have improved the quality of 
life for Americans. Classes in the United States have no place.
    Likewise, Carcieri created classes of Indian tribes, some of which 
have the right to have land taken into trust for them, while others do 
not. Whether someone is Narragansett, Stillaguamish, Navajo, or 
Cherokee, we are all Indians and come from tribal communities that have 
been routinely treated as similar since the founding of the United 
States. The distinction Carcieri found among our tribal communities has 
no origin in the real world--it is purely a technical absurdity that 
has led to an avalanche of negative effects on all tribal communities.
    As a practical matter, it is cumbersome, burdensome, and unwieldy 
for the Department of Interior and Bureau of Indian Affairs to maintain 
various categorized lists of tribes--some of which have the full 
panoply of rights while others enjoy but a select few. The dividing up 
of Indian Country according to an arbitrary technicality creates 
further administrative delay in addressing matters of all sorts under 
the IRA. Administratively, Carcieri creates a nightmare for federal 
officials in executing uniform and sound American Indian policy.
    The effect of Carcieri--to provide some tribes with more rights 
than others--undermines basic principles of Federal Indian Law, the 
federal-tribal trust relationship, and fundamental concepts upon which 
this country was founded, the most important of all being equality. In 
short, legislation is desperately needed to remove the class system 
that now divides Indian Country.
Not Fixing Carcieri will Force Tribes and the Federal Government to 
        Defend a Multitude of Lawsuits that will Overwhelm the Federal 
        Judiciary and Lead to Potentially Inconsistent Decisions
    Opponents of Indian tribes are already utilizing Carcieri as a 
means to delay and frivolously challenge land-into-trust applications. 
In the event that legislation is not passed, both tribes and their 
trustee, the Federal Government, will be forced to go to federal courts 
around the country and defend routine and ordinary trust applications. 
Litigation of this sort is unnecessary given the background of the IRA, 
but will necessarily follow because of Carcieri.
    No decision to take land into trust on behalf of a tribe is safe 
from challenge. Regardless of the legal merit of these challenges, 
tribes and their trustee have no choice but to expend limited 
governmental resources to defend these decisions. Furthermore, the 
myriad actions that will be filed will overwhelm the federal judiciary. 
With the flooding of these types of cases comes the potential for 
inconsistent and uneven interpretation of the law in Carcieri, creating 
further classes of Indian tribes. The courts should not be called on to 
interpret the particular lines dividing Indian tribes--there should be 
no lines at all.
    Congress, under the leadership of Chairman Rahall and this 
Committee, can affect positive change in Indian Country by revisiting 
the IRA and making clear that all Indian tribes are treated equally. 
Not doing so will result in the inefficient use of scarce governmental 
funds and the usage of very limited tribal resources.
Conclusion and Recommendation
    Mr. Chairman, Mr. Ranking Member, and Committee Members, I thank 
you for the opportunity to come here today and share my story with you. 
I am walking in the footsteps of my grandmother, Chief Esther Ross, and 
while they are too large for me to fill, I am compelled to be here and 
help finish the work she started in these same halls and buildings. 
Unfortunately, providence has brought me to D.C. to fight a battle 
similar to that which she fought nearly thirty years ago. As the 
designated leader of my tribe, I ask you to assist us in declaring once 
and for all that all Indian tribes are equal by passing H.R. 3742 and/
or H.R. 3697. Thank you.
                                 ______
                                 

   Native American Treaty between the United States and the Dwamish, 
   Suquamish, and other allied and subordinate Tribes of Indians in 
                         Washington Territory.

  Concluded at Point Elliott, Washington Territory, January 22, 1855.

                           January 22, 1855.

                 Ratified by the Senate, March 8, 1859.

   Proclaimed by the President of the United States, April 11, 1859.

JAMES BUCHANAN, PRESIDENT OF THE UNITED STATES, TO ALL AND SINGULAR TO 
WHOM THESE PRESENTS SHALL COME, GREETING:
ARTICLE I.
ARTICLE II.
ARTICLE III.
ARTICLE IV.
ARTICLE V.
ARTICLE VI.
ARTICLE VII.
ARTICLE VIII.
ARTICLE IX.
ARTICLE X.
ARTICLE XI.
ARTICLE XII.
ARTICLE XIII.
ARTICLE XIV.
ARTICLE XV.
JAMES BUCHANAN, PRESIDENT OF THE UNITED STATES, TO ALL AND SINGULAR TO 
WHOM THESE PRESENTS SHALL COME, GREETING:
    WHEREAS a treaty was made and concluded at Muckl-te-oh, or Point 
Elliott, in the Territory of Washington, the twenty-second day of 
January, one thousand eight hundred and fifty-five, by Isaac I. 
Stevens, governor and superintendent of Indian affairs for the said 
Territory, on the part of the United States, and the hereinafter-named 
chiefs, headmen, and delegates of the Dwamish, Suquamish, Sk-tahl-mish, 
Sam-ahmish, Smalhkahmish, Skope-ahmish, St-kah-mish, Snoqualmoo, Skai-
wha-mish, N'Quentl-ma-mish, Sk-tah-le-jum, Stoluck-wha-mish, Sno-ho-
mish, Skagit, Kik-i-allus, Swin-a-mish, Squin-ah-mish, Sah-ku-mehu, 
Noo-wha-ha, Nook-wa-chah-mish, Mee-see-qua-guilch, Cho-bah-ah-bish, and 
other allied and subordinate tribes and bands of Indians occupying 
certain lands situated in said Territory of Washington, on behalf of 
said tribes and duly authorized by them; which treaty is in the words 
and figures following to wit:
    Articles of agreement and convention made and concluded at Muckl-
te-oh, or Point Elliott, in the Territory of Washington, this twenty-
second day of January, eighteen hundred and fifty-five, by Isaac I. 
Stevens, governor and superintendent of Indian affairs for the said 
Territory, on the part of the United States, and the undersigned 
chiefs, headmen and delegates of the Dwamish, Suquamish, Sk-tahl-mish, 
Sam-ahmish, Smalh-kamish, Skope-ahmish, St-kah-mish, Snoqualmoo, Skai-
wha-mish, N'Quentl-ma-mish, Sk-tah-le-jum, Stoluck-wha-mish, Sno-ho-
mish, Ska-git, Kik-i-allus, Swin-a-mish, Squin-ah-mish, Sah-ku-mehu, 
Noo-wha-ha, Nook-wa-chah-mish, Me-see-qua-guilch, Cho-bah-ah-bish, and 
other allied and subordinate tribes and bands of Indians occupying 
certain lands situated in said Territory of Washington, on behalf of 
said tribes, and duly authorized by them.
ARTICLE I.
    The said tribes and bands of Indians hereby cede, relinquish, and 
convey to the United States all their right, title, and interest in and 
to the lands and country occupied by them, bounded and described as 
follows: Commencing at a point on the eastern side of Admiralty Inlet, 
known as Point Pully, about midway between Commencement and Elliott 
Bays; thence eastwardly, running along the north line of lands 
heretofore ceded to the United States by the Nisqually, Puyallup, and 
other Indians, to the summit of the Cascade range of mountains; thence 
northwardly, following the summit of said range to the 49th parallel of 
north latitude; thence west, along said parallel to the middle of the 
Gulf of Georgia; thence through the middle of said gulf and the main 
channel through the Canal de Arro to the Straits of Fuca, and crossing 
the same through the middle of Admiralty Inlet to Suquamish Head; 
thence southwesterly, through the peninsula, and following the divide 
between Hood's Canal and Admiralty Inlet to the portage known as 
Wilkes' Portage; thence northeastwardly, and following the line of 
lands heretofore ceded as aforesaid to Point Southworth, on the western 
side of Admiralty Inlet, and thence round the foot of Vashon's Island 
eastwardly and southeastwardly to the place of beginning, including all 
the islands comprised within said boundaries, and all the right, title, 
and interest of the said tribes and bands to any lands within the 
territory of the United States.
ARTICLE II.
    There is, however, reserved for the present use and occupation of 
the said tribes and bands the following tracts of land, viz: the amount 
of two sections, or twelve hundred and eighty acres, surrounding the 
small bight at the head of Port Madison, called by the Indians Noo-
sohk-um; the amount of two sections, or twelve hundred and eighty 
acres, on the north side Hwhomish Bay and the creek emptying into the 
same called Kwilt-seh-da, the peninsula at the southeastern end of 
Perry's Island called Shais-quihl, and the island called Chah-choo-sen, 
situated in the Lummi River at the point of separation of the mouths 
emptying respectively into Bellingham Bay and the Gulf of Georgia. All 
which tracts shall be set apart, and so far as necessary surveyed and 
marked out for their exclusive use; nor shall any white man be 
permitted to reside upon the same without permission of the said tribes 
or bands, and of the superintendent or agent, but, if necessary for the 
public convenience, roads may be run through the said reserves, the 
Indians being compensated for any damage thereby done them.
ARTICLE III.
    There is also reserved from out the lands hereby ceded the amount 
of thirty-six sections, or one township of land, on the northeastern 
shore of Port Gardner, and north of the mouth of Snohomish River, 
including Tulalip Bay and the before-mentioned Kwilt-seh-da Creek, for 
the purpose of establishing thereon an agricultural and industrial 
school, as hereinafter mentioned and agreed, and with a view of 
ultimately drawing thereto and settling thereon all the Indians living 
west of the Cascade Mountains in said Territory. Provided, however, 
that the President may establish the central agency and general 
reservation at such other point as he may deem for the benefit of the 
Indians.
ARTICLE IV.
    The said tribes and bands agree to remove to and settle upon the 
said first above mentioned reservations within one year after the 
ratification of this treaty, or sooner, if the means are furnished 
them. In the mean time it shall be lawful for them to reside upon any 
land not in the actual claim and occupation of citizens of the United 
States, and upon any land claimed or occupied, if with the permission 
of the owner.
ARTICLE V.
    The right of taking fish at usual and accustomed grounds and 
stations is further secured to said Indians in common with all citizens 
of the Territory, and of erecting temporary houses for the purpose of 
curing, together with the privilege of hunting and gathering roots and 
berries on open and unclaimed lands. Provided, however, that they shall 
not take shell-fish from any beds staked or cultivated by citizens.
ARTICLE VI.
    In consideration of the above cession, the United States agree to 
pay to the said tribes and bands the sum of one hundred and fifty 
thousand dollars, in the following manner--that is to say: For the 
first year after the ratification hereof, fifteen thousand dollars; for 
the next two years, twelve thousand dollars each year; for the next 
three years, ten thousand dollars each year; for the next four years, 
seven thousand five hundred dollars each year; for the next five years, 
six thousand dollars each year; and for the last five years, four 
thousand two hundred and fifty dollars each year. All which said sums 
of money shall be applied to the use and benefit of the said Indians 
under the direction of the President of the United States, who may from 
time to time determine at his discretion upon what beneficial objects 
to expend the same; and the Superintendent of Indian Affairs, or other 
proper officer, shall each year inform the President of the wishes of 
said Indians in respect thereto.
ARTICLE VII.
    The President may hereafter, when in his opinion the interests of 
the Territory shall require and the welfare of the said Indians be 
promoted, remove them from either or all of the special reservations 
hereinbefore made to the said general reservation, or such other 
suitable place within said Territory as he may deem fit, on 
remunerating them for their improvements and the expenses of such 
removal, or may consolidate them with other friendly tribes or bands; 
and he may further at his discretion cause the whole or any portion of 
the lands hereby reserved, or of such other land as may be selected in 
lieu thereof, to be surveyed into lots, and assign the same to such 
individuals or families as are willing to avail themselves of the 
privilege, and will locate on the same as a permanent home on the same 
terms and subject to the same regulations as are provided in the sixth 
article of the treaty with the Omahas, so far as the same may be 
applicable. Any substantial improvements heretofore made by any Indian, 
and which he shall be compelled to abandon in consequence of this 
treaty, shall be valued under the direction of the President and 
payment made accordingly therefor.
ARTICLE VIII.
    The annuities of the aforesaid tribes and bands shall not be taken 
to pay the debts of individuals.
ARTICLE IX.
    The said tribes and bands acknowledge their dependence on the 
government of the United States, and promise to be friendly with all 
citizens thereof, and they pledge themselves to commit no depredations 
on the property of such citizens. Should any one or more of them 
violate this pledge, and the fact be satisfactorily proven before the 
agent, the property taken shall be returned, or in default thereof, or 
if injured or destroyed, compensation may be made by the government out 
of their annuities. Nor will they make war on any other tribe except in 
self-defence, but will submit all matters of difference between them 
and the other Indians to the government of the United States or its 
agent for decision, and abide thereby. And if any of the said Indians 
commit depredations on other Indians within the Territory the same rule 
shall prevail as that prescribed in this article in cases of 
depredations against citizens. And the said tribes agree not to shelter 
or conceal offenders against the laws of the United States, but to 
deliver them up to the authorities for trial.
ARTICLE X.
    The above tribes and bands are desirous to exclude from their 
reservations the use of ardent spirits, and to prevent their people 
from drinking the same, and therefore it is provided that any Indian 
belonging to said tribe who is guilty of bringing liquor into said 
reservations, or who drinks liquor, may have his or her proportion of 
the annuities withheld from him or her for such time as the President 
may determine.
ARTICLE XI.
    The said tribes and bands agree to free all slaves now held by them 
and not to purchase or acquire others hereafter.
ARTICLE XII.
    The said tribes and bands further agree not to trade at Vancouver's 
Island or elsewhere out of the dominions of the United States, nor 
shall foreign Indians be permitted to reside in their reservations 
without consent of the superintendent or agent.
ARTICLE XIII.
    To enable the said Indians to remove to and settle upon their 
aforesaid reservations, and to clear, fence, and break up a sufficient 
quantity of land for cultivation, the United States further agree to 
pay the sum of fifteen thousand dollars to be laid out and expended 
under the direction of the President and in such manner as he shall 
approve.
ARTICLE XIV.
    The United States further agree to establish at the general agency 
for the district of Puget's Sound, within one year from the 
ratification hereof, and to support for a period of twenty years, an 
agricultural and industrial school, to be free to children of the said 
tribes and bands in common with those of the other tribes of said 
district, and to provide the said school with a suitable instructor or 
instructors, and also to provide a smithy and carpenter's shop, and 
furnish them with the necessary tools, and employ a blacksmith, 
carpenter, and farmer for the like term of twenty years to instruct the 
Indians in their respective occupations. And the United States finally 
agree to employ a physician to reside at the said central agency, who 
shall furnish medicine and advice to their sick, and shall vaccinate 
them; the expenses of said school, shops, persons employed, and medical 
attendance to be defrayed by the United States, and not deducted from 
the annuities.
ARTICLE XV.
    This treaty shall be obligatory on the contracting parties as soon 
as the same shall be ratified by the President and Senate of the United 
States.
    In testimony whereof, the said Isaac I. Stevens, governor and 
superintendent of Indian affairs, and the undersigned chiefs, headmen, 
and delegates of the aforesaid tribes and bands of Indians, have 
hereunto set their hands and seals, at the place and on the day and 
year hereinbefore written.

ISAAC I. STEVENS,
Governor and Superintendent,

[L. S.]

SEATTLE, Chief of the Dwamish and Suquamish tribes. his x mark. [L. S.]
PAT-KA-NAM, Chief of the Snoqualmoo, Snohomish and other tribes. his x 
        mark. [L. S.]
CHOW-ITS-HOOT, Chief of the Lummi and other tribes. his x mark. [L. S.]
GOLIAH, Chief of the Skagits and other allied tribes. his x mark. [L. 
        S.]
KWALLATTUM, or General Pierce, Sub-chief of the Skagit tribe. his x 
        mark. 
        [L. S.]
S'HOOTST-HOOT, Sub-chief of Snohomish. his x mark. [L. S.]
SNAH-TALC, or Bonaparte, Sub-chief of Snohomish. his x mark. [L. S.]
SQUUSH-UM, or The Smoke, Sub-chief of the Snoqualmoo. his x mark. [L. 
        S.]
SEE-ALLA-PA-HAN, or The Priest, Sub-chief of Sk-tah-le-jum. his x mark. 
        [L. S.]
HE-UCH-KA-NAM, or George Bonaparte, Sub-chief of Snohomish. his x mark. 

        [L. S.]
TSE-NAH-TALC, or Joseph Bonaparte, Sub-chief of Snohomish. his x mark. 
        [L. S.]
NS'SKI-OOS, or Jackson, Sub-chief of Snohomish. his x mark. [L. S.]
WATS-KA-LAH-TCHIE, or John Hobtst-hoot, Sub-chief of Snohomish. his x 
        mark. [L. S.]
SMEH-MAI-HU, Sub-chief of Skai-wha-mish. his x mark. [L. S.]
SLAT-EAH-KA-NAM, Sub-chief of Snoqualmoo. his x mark. [L. S.]
ST'HAU-AI, Sub-chief of Snoqualmoo. his x mark. [L. S.]
LUGS-KEN, Sub-chief of Skai-wha-mish. his x mark. [L. S.]
S'HEHT-SOOLT, or Peter, Sub-chief of Snohomish. his x mark. [L. S.]
DO-QUEH-OO-SATL, Snoqualmoo tribe. his x mark. [L. S.]
JOHN KANAM, Snoqualmoo sub-chief. his x mark. [L. S.]
KLEMSH-KA-NAM, Snoqualmoo. his x mark. [L. S.]
TS'HUAHNTL, Dwa-mish sub-chief. his x mark. [L. S.]
KWUSS-KA-NAM, or George Snatelum, Sen., Skagit tribe. his x mark. [L. 
        S.]
HEL-MITS, or George Snatelum, Skagit sub-chief. his x mark. [L. S.]
S'KWAI-KWI, Skagit tribe, sub-chief. his x mark. [L. S.]
SEH-LEK-QU, Sub-chief Lummi tribe. his x mark. [L. S.]
S'H'-CHEH-OOS, or General Washington, Sub-chief of Lummi tribe. his x 
        mark. 
        [L. S.]
WHAI-LAN-HU, or Davy Crockett, Sub-chief of Lummi tribe. his x mark. 
        [L. S.]
SHE-AH-DELT-HU, Sub-chief of Lummi tribe. his x mark. [L. S.]
KWULT-SEH, Sub-chief of Lummi tribe. his x mark. [L. S.]
KWULL-ET-HU, Lummi tribe. his x mark. [L. S.]
KLEH-KENT-SOOT, Skagit tribe. his x mark. [L. S.]
SOHN-HEH-OVS, Skagit tribe. his x mark. [L. S.]
S'DEH-AP-KAN, or General Warren, Skagit tribe. his x mark. [L. S.]
CHUL-WHIL-TAN, Sub-chief of Suquamish tribe. his x mark. [L. S.]
SKE-EH-TUM, Skagit tribe. his x mark. [L. S.]
PATCHKANAM, or Dome, Skagit tribe. his x mark. [L. S.]
SATS-KANAM, Squin-ah-nush tribe. his x mark. [L. S.]
SD-ZO-MAHTL, Kik-ial-lus band. his x mark. [L. S.]
DAHTL-DE-MIN, Sub-chief of Sah-ku-meh-hu. his x mark. [L. S.]
SD'ZEK-DU-NUM, Me-sek-wi-guilse sub-chief. his x mark. [L. S.]
NOW-A-CHAIS, Sub-chief of Dwamish. his x mark. [L. S.]
MIS-LO-TCHE, or Wah-hehl-tchoo, Sub-chief of Suquamish. his x mark. [L. 
        S.]
SLOO-NOKSH-TAN, or Jim, Suquamish tribe. his x mark. [L. S.]
MOO-WHAH-LAD-HU, or Jack, Suquamish tribe. his x mark. [L. S.]
TOO-LEH-PLAN, Suquamish tribe. his x mark. [L. S.]
HA-SEH-DOO-AN, or Keo-kuck, Dwamish tribe. his x mark. [L. S.]
HOOVILT-MEH-TUM, Sub-chief of Suquamish. his x mark. [L. S.]
WE-AI-PAH, Skaiwhamish tribe. his x mark. [L. S.]
S'AH-AN-HU, or Hallam, Snohomish tribe. his x mark. [L. S.]
SHE-HOPE, or General Pierce, Skagit tribe. his x mark. [L. S.]
HWN-LAH-LAKQ, or Thomas Jefferson, Lummi tribe. his x mark. [L. S.]
CHT-SIMPT, Lummi tribe. his x mark. [L. S.]
TSE-SUM-TEN, Lummi tribe. his x mark. [L. S.]
KLT-HAHL-TEN, Lummi tribe. his x mark. [L. S.]
KUT-TA-KANAM, or John, Lummi tribe. his x mark. [L. S.]
CH-LAH-BEN, Noo-qua-cha-mish band. his x mark. [L. S.]
NOO-HEH-OOS, Snoqualmoo tribe. his x mark. [L. S.]
HWEH-UK, Snoqualmoo tribe. his x mark. [L. S.]
PEH-NUS, Skai-whamish tribe. his x mark. [L. S.]
YIM-KA-NAM, Snoqualmoo tribe. his x mark. [L. S.]
TWOOI-AS-KUT, Skaiwhamish tribe. his x mark. [L. S.]
LUCH-AL-KANAM, Snoqualmoo tribe. his x mark. [L. S.]
S'HOOT-KANAM, Snoqualmoo tribe. his x mark. [L. S.]
SME-A-KANAM, Snoqualmoo tribe. his x mark. [L. S.]
SAD-ZIS-KEH, Snoqualmoo. his x mark. [L. S.]
HEH-MAHL, Skaiwhamish band. his x mark. [L. S.]
CHARLEY, Skagit tribe. his x mark. [L. S.]
SAMPSON, Skagit tribe. his x mark. [L. S.]
JOHN TAYLOR, Snohomish tribe. his x mark. [L. S.]
HATCH-KWENTUM, Skagit tribe. his x mark. [L. S.]
YO-I-KUM, Skagit tribe. his x mark. [L. S.]
T'KWA-MA-HAN, Skagit tribe. his x mark. [L. S.]
STO-DUM-KAN, Swinamish band. his x mark. [L. S.]
BE-LOLE, Swinamish band. his x mark. [L. S.]
D'ZO-LOLE-GWAM-HU, Skagit tribe. his x mark. [L. S.]
STEH-SHAIL, William, Skaiwhamish band. his x mark. [L. S.]
KEL-KAHL-TSOOT, Swinamish tribe. his x mark. [L. S.]
PAT-SEN, Skagit tribe. his x mark. [L. S.]
PAT-TEH-US, Noo-wha-ah sub-chief. his x mark. [L. S.]
S'HOOLK-KA-NAM, Lummi sub-chief. his x mark. [L. S.]
CH-LOK-SUTS, Lummi sub-chief. his x mark. [L. S.]
Executed in the presence of us --
M. T. SIMMONS,
Indian Agent.

C. H. MASON,
Secretary of Washington Territory.

BENJ. F. SHAW,
Interpreter.

CHAS. M. HITCHCOCK.
H. A. GOLDSBOROUGH.
GEORGE GIBBS.
JOHN H. SCRANTON.
HENRY D. COCK.
S. S. FORD, Jr.
ORRINGTON CUSHMAN.
ELLIS BARNES.
R. S. BAILEY.
S. M. COLLINS.
LAFAYETEE BALCH.
E. S. FOWLER.
J. H. HALL.
ROB'T DAVIS.
    And whereas, the said treaty having been submitted to the Senate of 
the United States for its constitutional action thereon, the Senate 
did, on the eighth day of March, one thousand eight hundred and fifty-
nine, advise and consent to the ratification of its articles by a 
resolution in the words and figures following, to wit:
    ``IN EXECUTIVE SESSION,
    ``SENATE OF THE UNITED STATES, March 8, 1859.
    ``Resolved, (two-thirds of the senators present concurring,) That 
the Senate advise and consent to the ratification of treaty between the 
United States and the chiefs, headmen and delegates of the Dwamish, 
Suquamish and other allied and subordinate tribes of Indians occupying 
certain lands situated in Washington Territory, signed the 22d day of 
January, 1855.

``Attest: ``ASBURY DICKINS, Secretary.''

    Now, therefore, be it known that I, JAMES BUCHANAN, President of 
the United States of America, do, in pursuance of the advice and 
consent of the Senate, as expressed in their resolution of the eighth 
of March, one thousand eight hundred and fifty-nine, accept, ratify, 
and confirm the said treaty.
    In testimony whereof, I have caused the seal of the United States 
to be hereto affixed, and have signed the same with my hand.
    Done at the city of Washington, this eleventh day of April, in the 
year of our Lord one thousand eight hundred and fifty-nine, and of the 
independence of the United States the eighty-third.

[SEAL.]

JAMES BUCHANAN.
By the President:

LEWIS CASS,
Secretary of State.

12 Stat. 927

END OF DOCUMENT
                                 ______
                                 
    Mr. Kildee. Thank you. Your entire testimony will be made 
part of the record.
    Attorney General Blumenthal.

    STATEMENT OF THE HONORABLE RICHARD BLUMENTHAL, ATTORNEY 
 GENERAL, OFFICE OF THE ATTORNEY GENERAL, HARTFORD, CONNECTICUT

    Mr. Blumenthal. Thank you, Mr. Chairman and members of the 
Committee. And I want to thank the Committee for giving me this 
opportunity to speak on behalf of the State of Connecticut and 
more than 20 attorneys general who also submitted an amicus 
curiae brief to the United States Supreme Court written by 
Connecticut in connection with the Carcieri matter.
    And I want to say that I appear or speak with some 
reluctance after such powerful presentations from leaders and 
chairpeople of the Native American community. And in 
Connecticut, we have two very distinguished and eminent tribal 
nations, the Mohegans and the Mashantucket Pequots.
    And I differ with them respectfully on the issues that are 
presented by this legislation. I want to say at the outset that 
I not only respect their views but certainly am deeply moved by 
their stories. And I respect also the principle of sovereignty, 
and for 18 years as Attorney General, I have fought and argued 
that the principle of sovereignty on Native American 
reservations is entitled to respect. It is the law. It is 
Congressional action made law for all Americans.
    I am here to oppose these measures because of my respect 
for the principles of sovereignty and the practical impact of 
land into trust, fee to trust decisions, practical impacts that 
we articulated at the United States Supreme Court, as chief 
legal officers of our states, practical impacts that involve 
loss of taxation, loss of enforcement avenues regarding 
environmental laws and land use regulations, very severe 
impacts that are not only lasting but in most cases forever, as 
they should be in most cases.
    And I was interested earlier to hear the testimony from the 
Department of the Interior as to land going from trust into 
fee. I am unaware of that ever happening, and I would be 
interested in those instances of it happening. But I would 
submit respectfully that those cases are the exception rather 
than the rule and they should be the exception rather than the 
rule.
    These decisions are immensely and profoundly significant. 
They are a loss of a substantial measure of sovereignty over 
areas of land within our states where enforcement obligations 
are supremely important, and they raise questions about 
jurisdiction, criminal and civil, that are enduring.
    I believe that there are better alternatives to these 
measures, and I outline them in my testimony. I believe that 
the current system that now prevails in the wake of Carcieri 
where Congress, Congress has the power to grant fee into trust 
should prevail for pre-1934 tribes as well as post-1934 tribes, 
thereby recognizing, as the previous speaker said, the equal 
position of all Federally recognized tribes.
    Congress has this responsibility, and it should take back 
control. And I say that because I believe, and I think you will 
see it in litigation, and that was referenced earlier this 
morning, a challenge to the Department of the Interior's 
authority to make these decisions and to the legality and 
constitutionality of those decisions as an unlawful delegation 
of Congressional power. And I think Congress should alone 
exercise that responsibility.
    If the decision is made to continue with the Department of 
the Interior, there need to be drastic, far-reaching reforms. 
The current process is lawless. I use that word advisedly. It 
sounds like a strong term, but it is lawless. It is without 
standards, guidelines, any kind of Congressional direction 
legally to constrain the unbridled discretion of the Secretary 
of the Interior.
    With time, if I had it here, I could describe to you our 
fight in Connecticut, litigation spanning a number of years 
because of that unbridled discretion as well as other instances 
where decisions have been delayed or land into trust denied to 
the disadvantage of tribes because of those standardless and 
discretionary decisions.
    I have the utmost respect for Secretary Eckerhart, one of 
my former colleagues, as well as Secretary Salazar, another 
former colleague, and I hope they will reform the process on 
their own. But I would urge, as I do in my testimony, that 
standards be adopted to provide notice, information, a right to 
be heard, improvements in the standards and the process that 
are absolutely vital if the administrative process is to 
continue, a drastic, far-reaching overhaul of that process as 
it exists now.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Blumenthal follows:]

            Statement of The Honorable Richard Blumenthal, 
                 Attorney General, State of Connecticut

    I appreciate the opportunity to comment on the issue of Native 
American trust lands after the United States Supreme Court decision in 
Carcieri v. Salazar. I urge the committee to take no further action 
regarding the decision--while reforming the process for taking land 
into trust for pre-1934 tribes and requiring congressional approval for 
post-1934 tribes.
    Even as it leaves Carcieri v. Salazar in place, Congress should 
reform and clarify existing laws and procedures for taking land into 
trust. I recommend Congress: (1) validate the trust land transactions 
approved prior to the Carcieri decision by the Secretary of the 
Interior for post-1934 tribes; and (2) repeal or reform the Interior 
Department approval process for trust land applications to ensure 
states, towns and individuals have a meaningful voice.
    Lawmakers should determine whether the current system--authorizing 
the Secretary of the Interior to determine when and whether to take 
lands into trust on behalf of a Native American tribe recognized prior 
to 1934--is still necessary to achieve the original goals of the Indian 
Reorganization Act (IRA). Congress should either reform the 
administrative process in order to achieve fair and equitable decisions 
regarding trust lands for these tribes or repeal the Act, thereby 
establishing for pre-1934 tribes the same Congressional trust approval 
as post-1934 tribes.
I. Congress should have sole Authority to approve post-1934 Tribal 
        trust land requests
    The United States Supreme Court's decision in Carcieri v. Salazar 
recognized Congress' ``plain and unambiguous'' intent that the Indian 
Reorganization Act (``the IRA'') permit the Secretary of the Interior 
to take land into trust only on behalf of Indian tribes federally 
recognized at the time of the IRA's 1934 enactment.
    The Court's decision was not only consistent with the IRA's plain 
language, but also with the Act's broader purpose, namely, to help 
remediate the negative impact of pre-1934 federal policies and 
bureaucratic failings on tribes under federal jurisdiction at the time.
    In 1887, Congress passed the misguided and deeply flawed General 
Allotment Act, which transferred ownership of Indian lands from 
federally recognized tribes to individual tribal members. The results 
were disastrous. In the ensuing years, more than two-thirds of Indian 
land was acquired by non-Indians, contributing to poverty and social 
dislocation among Native Americans.
    The record clearly shows that Congress passed the IRA in 1934 to 
address the damage done by the General Allotment Act of 1887. Congress' 
clear intention was to provide a legal means for tribes to regain land 
unfairly lost because of flawed federal policy. Indeed, the IRA sought 
to remediate the consequences of ``deficiencies in the Interior 
Department's performance of its responsibilities'' to protect the 
assets of recognized tribes under federal jurisdiction prior to 1934. 
United States v. Mitchell, 463 U.S. 206, 220 (1983).
    As Connecticut and other states said in our U.S. Supreme Court 
brief:
        ``Reading the IRA to apply only to tribes recognized and under 
        federal jurisdiction in 1934 is not only consistent with the 
        legislative history directly related to the ``now'' limitation, 
        it is also entirely consistent with the Act's broader purposes 
        and history. The IRA was intended to help remediate the impact 
        on then-recognized tribes of pre-1934 federal policies and 
        bureaucratic failings. Specifically, this Court has recognized 
        that ``[t]he intent and purpose of the Reorganization Act was 
        ``to rehabilitate the Indian's economic life and to give him a 
        chance to develop the initiative destroyed by a century of 
        oppression and paternalism.'' Mescalero Apache Tribe v. Jones, 
        411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 1804, 73d 
        Cong., 2d Sess., 6 (1934) and citing S. Rep. No. 1080, 73d 
        Cong., 2d Sess., 1 (1934)).

        ``One of the primary aspects of that past oppression and 
        paternalism was the federal government's policy of allotment, 
        which began with the passage of the General Allotment Act of 
        1887 and lasted until 1934, when the IRA was enacted. During 
        the allotment period, two-thirds of former Indian lands were 
        acquired by non-Indians. County of Yakima v. Confederated 
        Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 
        (1992). The IRA brought ``an abrupt end'' to that allotment 
        policy and reflected a ``broad effort to promote economic 
        development among American Indians, with a special emphasis on 
        preventing and recouping losses of land caused by previous 
        federal policies.''
          Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 
        31 (D.C. Cir. 2008) (per curiam) (emphasis added) (quoting 
        County of Yakima, 402 U.S. at 255).''
    Tribes recognized after 1934 are unaffected by the failed federal 
policies the IRA was intended to correct. No post 1934 tribes lost land 
because of the General Allotment Act of 1887.
    Instead of righting injustices visited upon federally recognized 
tribes before 1934--as Congress rightly intended--extending this law to 
tribes recognized after that date threatens to create new injustices 
against local communities and states. Allowing post 1934 tribes to use 
IRA to take land into trust twists congressional intent, giving tribes 
never wronged by the previous federal policy a super-weapon that 
unfairly denies their non-Indian neighbors the ability to effectively 
contest such decisions.
    Taking land into trust on behalf of an Indian tribe has significant 
ramifications for states and local communities.
      Trust land is outside state and local taxation and thus 
is removed from town tax rolls, often resulting in a significant loss 
of tax revenue for local governments. 25 U.S.C. Sec. 465.
      Trust lands are outside land use regulation potentially 
burdening the State and surrounding communities with increased traffic, 
noise, and pollution.
      Issues may arise as to criminal and civil jurisdiction, 
including key public health and safety laws.
    These are not abstract concerns for Connecticut residents. In the 
early 1990s, one tribe, then the richest in the nation, threw three 
neighboring Connecticut towns into an uproar when it produced a map 
showing all the property it wished to take into trust. Significant 
portions of all three towns would have been absorbed into the 
reservation, permanently removing them from the tax rolls and local 
land use and environmental restrictions. Because of the vast powers 
vested in the Bureau of Indian Affairs (``BIA'') by IRA, the towns and 
their residents appeared to have little chance of even being heard, let 
alone challenging the tribe's land trust requests. Only after years of 
bitter, costly litigation did my office and the towns succeed in 
forestalling the tribe's trust land application.
    Critical decisions should remain with Congress--as representatives 
of the people--rather than an appointed individual, ensuring that state 
and local communities have a voice and real input in the process. 
Congress is uniquely able to balance the interests of the state and 
local governments against those of the tribes, in a process that is 
transparent, accountable, ensures input from all affected parties and 
reflects a consensus among tribes, states and local communities.
    Congressional action has been an effective route for tribal 
recognition and for settlement of land claims. Connecticut's two 
federally-recognized tribes--the Mashantucket Pequot and the Mohegan--
were either recognized or obtained significant land holdings through 
Settlement Acts. See 25 U.S.C. Sec. 1751 et. seq. (The Mashantucket 
Pequot Indian Land Claims Settlement Act); 25 U.S.C. Sec. 1775 et. seq. 
(The Mohegan Nation Land Claims Settlement Act). Several other states 
have similarly reached agreements with tribes and their Congressional 
delegation to federally recognize the tribes and establish reservation 
land for such tribes. See, Rhode Island Land Claims Settlement Act, 25 
U.S.C. Sec. 1701 et seq.; Maine Indian Claims Settlement Act, 25 U.S.C. 
Sec. 1721 et seq.
    Although any such settlement necessarily entails compromises for 
the impacted state and local communities, as well as the tribe, the 
involvement of Congress ensures that all interests are heard and 
considered, and lends the result a legitimacy that the administrative 
process cannot and does not.
    Additional legislation with regard to post-1934 tribes is 
unnecessary. Congress is the appropriate body to make trust decisions 
concerning tribes that were not impacted by defective federal policies 
and bureaucratic deficiencies that the IRA was intended to remediate.
II. If a Department of Interior process is maintained, Congress should 
        make the process more equitable and fair.
    The current trust lands acquisition process is deeply flawed, 
providing virtually limitless discretion to the Secretary of the 
Interior, leading to arbitrary decisions that undermine public 
confidence in the fairness of the process and have significant impact 
on communities and states.
    Congressional reform of the administrative trust lands process must 
include:
      Standards: Administrative approval or rejection of trust 
lands applications should balance the Tribal need to achieve a critical 
economic or community interest with the impact of trust status on non-
Indian residents;
      Fair process: Community leaders, state officials, Tribal 
leaders and individuals directly affected by a Trust lands application 
should be notified of the application and have an opportunity to be 
heard;
II.A. Standards for Administrative Trust Land Decisions
    The federal Indian Recognition Act (IRA) places effectively no 
limitation on the Secretary's exercise of the trust power, requiring 
only that he take the land ``for the purpose of providing land to 
Indians.'' Indeed, the Interior Department's criteria for trust land 
decisions actually impose only an illusory limit on the Secretary's 
trust power because the Secretary has retained the ability to ``waive 
or make exceptions'' to the regulations ``where permitted by law and 
the Secretary finds that such waiver or exception is in the best 
interest of the Indian.'' 25 C.F.R. Sec. 1.2. The paucity of 
congressional guidance has led several federal judges to question the 
IRA's constitutionality. See, e.g., Mich. Gambling Opposition v. 
Kempthorne, 525 F.3d 23, 33-40 (D.C. Cir. 2008), cert. denied, 129 S. 
Ct. 1002 (2009) (Brown, J., dissenting); South Dakota v. DOI, 69 F.3d 
878, 882 (8th Cir. 1995), cert. granted and decision vacated, at 519 
U.S. 919 (1996). 1 Indeed, a panel of the United States 
Court of Appeals for the Eighth Circuit noted that the IRA, by its 
terms, ``would permit the Secretary to purchase the Empire State 
Building in trust for a tribal chieftain as a wedding present.'' South 
Dakota, 69 F.3d at 882.
---------------------------------------------------------------------------
    \1\ Although the Supreme Court vacated the Eighth Circuit's 
decision, it did not address the nondelegation question.
---------------------------------------------------------------------------
    While the lack of adequate standards raises constitutional 
concerns, fairness and equity require Congress establish meaningful 
criteria, balancing the proposed trust acquisition's benefit to the 
tribe against the negative consequences to the State and local 
communities. The criteria should: (1) require that the decision maker 
consider the cumulative impact of tax losses and other consequences 
resulting from multiple parcels being taken into trust over time; (2) 
mandate consideration of the degree to which the acquisition is truly 
necessary for the economic subsistence of the tribe; (3) include a 
presumption against acquisitions on behalf of economically sound tribes 
that already have an adequate land base and wealth and (4) place the 
burden on the tribal applicant to demonstrate that the benefits 
significantly outweigh the negative impacts.
    Connecticut's experience provides a useful example of why standards 
are necessary.
    In 1994, the Mashantucket Pequot Tribe--which obtained a 2,200-acre 
federal reservation pursuant to a congressionally approved Settlement 
Act and was already the wealthiest tribe in the country--applied to 
have approximately 100 acres outside its reservation taken into trust 
for economic and gaming expansion purposes. The State and local 
communities protested, but the Secretary ultimately sided with the 
Tribe despite the lack of evidence that taking the land into trust was 
necessary to achieve its economic expansion. In fact, although the 
Tribe ultimately withdrew its trust application, it has since continued 
to expand and has made billions of dollars in profits--demonstrating 
serious flaws in the Secretary's initial approval of the trust 
application.
    Further demonstrating the need for standards: When the State and 
local communities appealed the Secretary's grant of the Mashantucket 
Pequot Tribe's trust application, the Secretary of the Interior told 
the district court that he had unfettered and unbridled authority to 
take land into trust for the Tribe. He told the court that only at some 
point ``prior to the acquisition of all of southeastern Connecticut,'' 
would it ```be unreasonable for the Secretary to find that he had 
rationally considered' the regulatory criteria'' requiring the 
Secretary to consider the impact on the State and its political 
subdivisions resulting from the removal of the land from the tax rolls. 
State of Conn. v. Babbitt, 26 F. Supp. 2d 397, 406 n.19 (D. Conn. 
1998), rev'd, 228 F.3d 82 (2d Cir. 2000); see also 25 C.F.R. 
Sec. Sec. 151.10 & 151.11 (setting forth criteria for on and off 
reservation trust acquisitions).
    Such a standard is grossly unfair to non-Indian residents affected 
by tribal trust land applications. Congress has a duty to the States, 
the local communities, and their citizens to ensure that the IRA 
includes meaningful, binding and judicially enforceable standards to 
protect their substantial interests when tribes seek to take land into 
trust.
II.B. Fair Process
    Connecticut's experience with the Interior Department's process for 
deciding trust land applications revealed substantial and significant 
flaws and inequities, undermining the public's confidence in any trust 
land decision.
      States and local communities are provided insufficient 
time to respond to an application for trust acquisition. Under existing 
regulations, States and local communities have only 30 days to comment 
on a trust application. That often is not enough time to formulate a 
meaningful response. A Government Accountability Office (GAO) report 
raises similar concerns adding that the Bureau of Indian Affairs (BIA) 
does not consistently allow for extensions of time where it is 
necessary to formulate a proper response. GAO, Indian Issues: BIA's 
Efforts to Impose Time Frames and Collect Better Data Should Improve 
the Processing of Land in Trust Applications 32 (July 2006).
      States and local communities are not given critical 
information necessary to adequately respond in a timely manner. The 
notice of a trust application contains neither the tribe's application 
nor its supporting materials. States and local governments are forced 
to independently obtain that information, whether through a Freedom of 
Information Act request or other means. Time needed to obtain that 
information further reduces the time those entities have to formulate 
and present their objections. Notices should therefore include all 
information the tribe submits in support of its application.
      Some states and local communities are not even notified 
of the trust application. The regulations only require the Secretary to 
``notify the state and local governments having regulatory jurisdiction 
over the land to be acquired.'' 25 C.F.R. Sec. 151.10(e) & 151.11. That 
notice requirement is too narrow, and could leave governments and 
individuals with significant interests unaware of the acquisition 
request until it is too late. Congress should require that the 
Secretary provide notice to all State and local governments with an 
interest, regardless of whether they have regulatory jurisdiction.
      States and local communities are provided no opportunity 
to comment on any material change in the use of the trust land. All 
tribal trust applications should fully disclose the intended use of the 
property and require a tribe seeking to change that use to undergo a 
new decision and comment process with the ability for affected parties 
to obtain judicial review. The concerns of State and local governments 
may depend greatly on the proposed land use. A Tribe should not be able 
to obtain trust land for one purpose and then use it for another 
without providing the impacted communities an opportunity to challenge 
the change. The clearest example of such a situation would be a tribe 
taking land into trust for a non-gaming purpose, and then seeking to 
use that land for gaming activity.
      States and local communities are not afforded meaningful 
judicial review of trust land decisions. Until 1996, the Department of 
the Interior took the position that its decisions were not subject to 
judicial review. Dep't of the Interior v. South Dakota, 519 U.S. 919, 
920 (1996) (Scalia, J., dissenting). Then, following the Eighth 
Circuit's decision holding that Section 5 was an unconstitutional 
delegation, the Department ``did an about-face with regard to the 
availability of judicial review under the APA,'' id., and gave 
aggrieved parties 30 days to seek judicial review. 25 C.F.R. 
Sec. 151.12(b). Congress must ensure that States and local communities 
are able to obtain judicial review of initial trust acquisitions and 
proposed use changes. Further, the Department has continued to take the 
position that ``action will continue to be barred by the [Quiet Title 
Act, 28 U.S.C. Sec. 2409a] after the United States formally acquires 
title.'' Dep't of the Interior, 519 U.S. at 920. To ensure that States 
and local communities--and other parties aggrieved by a trust 
acquisition or a change in the use of trust land--have the ability to 
obtain judicial review, Congress should waive the sovereign immunity of 
the United States as to claims arising out of trust acquisitions or 
decisions to permit a tribe to materially change the use of existing 
trust land.
    Procedural fairness and adequate opportunity to comment are 
essential to the public's confidence in these critical, often far-
reaching decisions.
    I appreciate the committee's continued concern regarding trust land 
procedures and look forward to working with it on this issue of 
critical importance to Tribes, communities and governments.
                                 ______
                                 
    Mr. Kildee. Thank you, attorney general.
    Our next witness is Mr. Steven Woodside, Sonoma County, on 
behalf of the California State Association of Counties, 
Sacramento, California.

STATEMENT OF STEVEN WOODSIDE, SONOMA COUNTY COUNSEL, ON BEHALF 
 OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES, SACRAMENTO, 
                           CALIFORNIA

    Mr. Woodside. Thank you, Mr. Kildee, Mr. Hastings, and may 
it please the Committee. Thank you for hearing from local 
government here today.
    My name is Steven Woodside, and I serve as County Counsel 
for the County of Sonoma. Some of you may associate the name 
Sonoma with great wine or with 100 miles of spectacular 
coastline north of the Golden Gate Bridge. But you may not know 
that the word Sonoma is from the Pomo language and has been 
translated into English in various ways. My personal favorite 
translation is that Sonoma means a gathering place of nice 
people.
    Speaking of nice people, we have five Federally recognized 
tribes in Sonoma County. Two of the tribes have continuously 
resided on lands held for their benefit by the Federal 
government since the 1930s, perhaps earlier. Another two tribes 
were recognized as a result of lawsuits, one in 1983, one in 
1991. And the fifth tribe was recognized directly as a result 
of an act of Congress in the year 2000.
    My office has been in litigation with, has negotiated with 
and participated in administrative proceedings involving these 
tribes and tribal trust lands. There are at the present time 
two applications to place land into trust. The Department of 
the Interior, however, does not allow us to review those 
applications at this time. So Sonoma County is frustrated, but 
we are not alone among county governments who are frustrated by 
the process by which lands are taken into trust.
    I appear before you today, as Mr. Kildee has said, on 
behalf of the California State Association of Counties. It is 
an organization that represents all 58 counties within 
California, in which more than 100 tribes have been recognized 
by the Federal government and in which there are about 70 
pending trust land applications.
    We submitted formal written testimony to the Committee and 
to your staff expressing our concerns about the fee to trust 
process and making suggestions on how the process can be fixed. 
But we respectfully submit that the fee to trust process is 
broken and that it is broken for all parties. It is fraught 
with uncertainty, delay and conflict.
    A so-called simple Carcieri fix does nothing to repair the 
underlying problems in the process. County governments are 
heavily impacted by fee to trust decisions. Trust acquisitions 
often increase demands for law enforcement, fire protection, 
health, social services, water and other resources provided by 
counties without providing any mitigation for the burdens that 
are created.
    When land is placed into trust, as General Blumenthal said, 
it reduces the property tax base for counties. It takes the 
property out of local land use jurisdiction. But, despite these 
impacts, the Department of the Interior does not provide 
sufficient notice regarding fee to trust applications. It does 
not accord county concerns adequate weight in the process. And 
perhaps most egregiously, as determinations are made whether 
property qualifies as Indian land, which is a critical 
determination with respect to a gaming application, counties 
are not notified of such determination requests. We strongly 
believe that the process would benefit greatly from local 
participation to ensure that there is a complete factual basis 
on which to make an objective decision.
    The Federal process is also flawed in that it does not 
require tribes to engage in good faith discussions regarding 
mitigation of environmental impacts of the tribal development 
or enter into enforceable mitigation agreements with local 
governments. Indeed, the Bureau of Indian Affairs will not even 
facilitate such discussions as it believes that its trust 
responsibility to tribes prevents it from fully engaging with 
local governments.
    These concerns are not just the concerns of California but 
also expressed in the National Association of Counties 
platform, which has also been submitted to the Committee. We 
submit that if Congress adopts a quick fix, it would be 
retreating from its Constitutional role under the Indian 
Commerce Clause and would be delegating this critical function 
without adequate direction to the executive branch. A quick fix 
would perpetuate the problems that have resulted in years of 
expensive and unproductive conflict between tribes and local 
governments.
    We want a real and lasting fix. In our view, an amendment 
to the 1934 Act that extends tribal trust land authority to the 
Secretary of the Interior should include: [1] adequate notice 
to local government, [2] a requirement to hear local government 
concerns, [3] a requirement that tribes and local governments 
work together, and, finally, to provide for cooperating 
agreements that are enforceable.
    The bills before you today fall short because they do not 
address the problems in the underlying trust process that have 
emerged during the last 75 years and instead they would 
authorize the Secretary to continue business as usual.
    California counties stand ready to work with this Committee 
and with the Administration to develop a new process that is 
founded upon mutual respect and encourages local governments 
and tribes to work together on a government-to-government basis 
in a manner that will benefit all parties. This is a historic 
opportunity. We urge you to work with counties across the 
Nation to ensure that this opportunity is not missed. Thank 
you.
    [The prepared statement of Mr. Woodside follows:]

  Statement of Steven M. Woodside, County Counsel for Sonoma County, 
       on behalf of the California State Association of Counties

    Chairman Rahall and Honorable Members of the Committee:
    This testimony is submitted on behalf of the California State 
Association of Counties (CSAC), which is the unified voice on behalf of 
all 58 of California's counties. For perspective on CSAC's activities 
and approach to Indian Affairs matters, we are attaching the CSAC 
Congressional Position Paper on Indian Affairs issued in March, 2009. 
Our intent in this testimony is to provide a perspective from 
California's counties regarding the significance of the Supreme Court's 
recent decision in Carcieri v. Salazar, and to recommend measures for 
the Committee to consider as it seeks to ``fix'' or address the 
implications of this decision in legislation. CSAC believes that the 
experience of our county government members in the State of California 
is similar to that of county and local governments throughout the 
nation where trust land issues have created significant and, in many 
cases, unnecessary conflict and distrust of the federal decision-making 
system for trust lands. The views presented by CSAC also reflect policy 
positions of many State Attorneys General and the National Association 
of Counties (NACo) all of whom are committed to the creation of a fee 
to trust process where tribal interests can be met and legitimate state 
and local interests properly considered (see attached policies).
    It is from this local government experience and concern about the 
fee to trust process that we address the implications of the Carcieri 
decision. On February 24, 2009, the U.S. Supreme Court issued its 
landmark decision on Indian trust lands in Carcieri v. Salazar. This 
decision held that the Secretary of the Interior lacks authority to 
take land into trust on behalf of Indian tribes that were not under the 
jurisdiction of the federal government upon enactment of the Indian 
Reorganization Act (IRA) in 1934.
    In the wake of this significant court decision, varied proposals 
for reversing or reinstating authority for trust land acquisitions are 
being generated, some proposing administrative action and others 
favoring a Congressional approach. Today's hearing is recognition of 
the implications of the Carcieri decision and appreciation of the need 
to consider a legislative resolution. We are in full agreement that a 
Congressional resolution is required, rather than an administrative 
one, but we urge that addressing the Supreme Court decision in 
isolation of the larger problems of the fee to trust system misses an 
historic opportunity. A legislative resolution that hastily restores 
the trust land system to its status before Carcieri will be regarded as 
unsatisfactory to counties, local governments, and the people we serve. 
Rather than a ``fix'' such a solution will only perpetuate the current 
problem. A situation where the non-tribal entities most effected by the 
fee to trust process are without a meaningful role, thereby ultimately 
undermining the respectful government to government relationships 
necessary for both tribes and neighboring governments to fully develop, 
thrive, and serve the people dependent upon them for their well being.
Recommendation
    Our primary recommendation to this committee, to our delegation, 
and to the Congress, is this: Do not advance an immediate Congressional 
response to Carcieri, which allows the Secretary of the Interior to 
return to the flawed fee to trust process. Rather, carefully examine, 
with oversight and other hearings which include participation by 
tribal, state and local governments, what reforms are necessary to 
``fix'' the fee to trust process and refine the definition of Indian 
lands under IGRA. Concurrently, request that the Secretary of the 
Interior determine the impacts of Carcieri, as to the specific tribes 
affected and nature and urgency of their need, so that a more focused 
and effective legislative remedy can be undertaken.
    What the Carcieri decision presents, more than anything else, is an 
opportunity for Congress to carefully exercise its constitutional 
authority for trust land acquisitions, to define the respective roles 
of Congress and the executive branch in trust land decisions, and to 
establish clear and specific Congressional standards and processes to 
guide trust land decisions in the future, whether made by Congress, as 
provided in the Constitution, or the executive branch under a 
Congressional grant of authority. It should be noted that Congress has 
power not to provide new standardless authority to the executive branch 
for trust land decisions and instead retain its own authority to make 
these decisions on a case by case basis as it has done in the past, 
although decreasingly in recent years. Whether or not Congress chooses 
to retain its authority or to delegate it in some way, it owes it to 
tribes and to states, counties, local governments and communities, to 
provide clear direction to the Secretary of Interior to make trust land 
decisions according to specific Congressional standards and to 
eliminate much of the conflict inherent in such decisions under present 
practice.
    CSAC will respectfully ask that our state delegation assume a 
leadership role to address both sides of the problem in any legislation 
seeking to re-establish the trust land process post-Carcieri: 1) the 
absence of authority to acquire trust lands, which affects post-1934 
tribes, and 2) the lack of meaningful standards and a fair and open 
process, which affects states, local governments, businesses and non-
tribal communities. As Congress considers the trust land issue to fix 
Carcieri, it should undertake reform that is in the interests of all 
affected parties. The remainder of our testimony addresses the trust 
land process, the need for its reform, and the principal reforms to be 
considered.
The Problem with the Current Trust Land Process
    The fundamental problem with the trust acquisition process is that 
Congress has not set such standards under which any delegated trust 
land authority would be applied by BIA. Section 5 of the IRA, which was 
the subject of the Carcieri decision, reads as follows: ``The Secretary 
of the Interior is hereby authorized in his discretion, to acquire [by 
various means] any interest in lands, water rights, or surface rights 
to lands, within or without reservations--for the purpose of providing 
land to Indians.'' 25 U.S.C. Sec. 465. This general and undefined 
Congressional guidance, as implemented by the executive branch, and 
specifically the Secretary of the Interior, has resulted in a trust 
land process that fails to meaningfully include legitimate interests, 
to provide adequate transparency to the public, or to demonstrate 
fundamental balance in trust land decisions. The unsatisfactory 
process, the lack of transparency and the lack of balance in trust land 
decision-making have all combined to create significant controversy, 
serious conflicts between tribes and states, counties and local 
governments, and broad distrust of the fairness of the system.
    All of these effects can and should be avoided. Because the 
Carcieri decision has definitively confirmed the Secretary's lack of 
authority to take lands into trusts for post-1934 tribes, Congress now 
has the opportunity not just to address the authority issue by 
restoring the current failed system, but to reassert its primary 
authority for these decisions by setting specific trust land standards 
that address the main shortcomings of the current trust land process. 
Some of the more important new standards are described below.
Notice and Transparency
    1) Require full disclosure from the tribes on trust land 
applications and other Indian land decisions, and fair notice and 
transparency from the BIA. The Part 151 regulations are not specific 
and do not require sufficient information about tribal plans to use the 
land proposed for trust status. As a result, it is very difficult for 
affected parties (local and state governments, and the affected public) 
to determine the nature of the tribal proposal, evaluate the impacts 
and provide meaningful comments. BIA should be directed to require 
tribes to provide reasonably detailed information to state and affected 
local governments, as well as the public, about the proposed uses of 
the land early on, not unlike the public information required for 
planning, zoning and permitting on the local level. This assumes even 
greater importance since local planning, zoning and permitting are 
being preempted by the trust land decision, and therefore information 
about intended uses is reasonable and fair to require.q
    Legislative and regulatory changes need to be made to ensure that 
affected governments receive timely notice of fee-to-trust applications 
and petitions for Indian Land Determinations in their jurisdiction and 
have adequate time to provide meaningful input. For example, the 
Secretary should be required to seek out and carefully consider 
comments of local affected governments on Indian gaming proposals 
subject to the two-part test determination that gaming would be in the 
best interest of the tribe and not detrimental to the surrounding 
community (25 U.S.C. 2719 (b)(1)(A)). This change would recognize the 
reality of the impacts tribal development projects have on local 
government services and that the success of these projects are 
maximized by engagement with the affected jurisdictions. Indeed, in 
most cases CSAC believes that the two-part process as provided in 
Section 20 of IGRA should be the process used for land applications for 
gaming purposes.
    Indian lands determinations, a critical step for a tribe to take 
land into trust for gaming purposes, is conducted in secret without 
notice to affected counties or any real opportunity for input. 
Incredibly, counties are often forced to file a Freedom of Information 
Act (FOIA) request to even determine if an application was filed and 
the basis for the petition.
    2) The BIA should define ``tribal need'' and require specific 
information about need from the tribes. The BIA regulations provide 
inadequate guidance as to what constitutes legitimate tribal need for 
trust land acquisition. There are no standards other than that the land 
is necessary to facilitate tribal self-determination, economic 
development or Indian housing. These standards can be met by virtually 
any trust land request, regardless of how successful the tribe is or 
how much land it already owns. As a result, there are numerous examples 
of BIA taking additional land into trust for economically and 
governmentally self-sufficient tribes already having wealth and large 
land bases.
    Our suggestion is that ``need'' is not without limits. Congress 
should consider explicit limits on tribal need for more trust land so 
that the trust land acquisition process does not continue to be a 
``blank check'' for removing land from state and local jurisdiction. 
CSAC does not oppose the use by a tribe of non-tribal land for 
development provided the tribe fully complies with state and local 
government laws and regulations applicable to all other development, 
including full compliance with environmental, health and safety laws.
    3) Applications should require specific representations of intended 
uses. Changes in use should not be permitted without further reviews, 
including environmental impacts, and approval or denial as the review 
indicates. Such further review should have the same notice and comment 
and consultation as the initial application. The law should be changed 
to specifically allow restrictions and conditions to be placed on land 
going into trust that further the interests of both affected tribes and 
other governments.
The Decision Process and Standards
    1) A new paradigm for working with counties and local governments. 
Notice for trust and other land actions for tribes that go to counties 
and other governments is very limited in coverage and opportunity to 
comment is minimal; this must change. A new paradigm is needed where 
counties are considered meaningful and constructive stakeholders in 
Indian land related determinations. For too long counties have been 
excluded from meaningful participation in critical Department of the 
Interior (DOI) decisions and policy formation which directly affects 
their communities. This remains true today as evidenced by new fee to 
trust policies now being announced by the Administration without any 
input from local government organizations.
    The corollary is that consultation with counties and local 
governments must be real, with all affected communities and public 
comment. Under Part 151, BIA does not invite, although will accept 
review and comment by third parties, even though they may experience 
major negative impacts. BIA only accepts comments from the affected 
state and the local government with legal jurisdiction over the land 
and, from those parties, only on the narrow question of tax revenue 
loss and zoning conflicts. As a result, under current BIA practice, 
trust acquisition requests are reviewed under a very one-sided and 
incomplete record that does not provide real consultation or an 
adequate representation of the consequences of the decision.
    To begin to address these issues, CSAC recommends that within the 
BIA an office be created to act as liaison for tribes and local and 
state government. This office would be a point of contact to work with 
non-tribal governments to insure they have the information necessary 
regarding DOI programs and initiatives to help foster cooperative 
government-to-government relations with tribes. As part of this 
paradigm shift, local governments would be consulted, in a manner 
similar to that as tribes, on proposed rule changes and initiatives 
that may impact counties and the people they serve.
    2) Establish standards that require that tribal and non-tribal 
interests be balanced in considering the impacts of trust land 
decisions. BIA requests only minimal information about the impacts of 
such acquisitions on local communities and BIA trust land decisions are 
not governed by a requirement to balance the benefit to the tribe 
against the impact to the local community. As a result there are well-
known and significant impacts of trust land decisions on communities 
and states, with consequent controversy and delay and distrust of the 
process. It should be noted that the BIA has the specific mission to 
serve Indians and tribes and is granted broad discretion to decide in 
favor of tribes.
    For this reason, any delegation of authority to the Secretary by 
Congress should consider placing decision-making responsibility for 
trust lands in some agency or entity without the mission conflicts of 
the BIA. However the delegation of authority is resolved, Congress must 
specifically direct clear and balanced standards that ensure that trust 
land requests cannot be approved where, considering the negative 
impacts to other parties, the benefit to the tribe cannot be justified.
    3) Limit the use of trust land to the tribe's declared purpose. One 
of the most problematic aspects of tribal trust acquisition is that 
once the land is acquired, BIA takes the position that the property can 
be used for any purpose regardless of what the initial tribal 
application proposed. For example, land acquired for tribal residential 
purposes can be changed to commercial use without any further review or 
comment by affected parties, regardless of the impacts. By allowing for 
un-reviewed changes in use, BIA has created an opportunity for the 
trust land acquisition process to be abused by tribes that seek to hide 
the true intent of their requests or that simply find it convenient to 
develop a different use after acquisition. In recent years the hidden 
purpose has often been the intent to develop a casino but avoid a real 
analysis of its impacts. The trust acquisition process should be 
reconstructed under Congressional direction to prohibit changes in the 
type of use unless a supplemental public review and decision-making 
process takes place or to otherwise allow restrictions and conditions 
to be placed on the land when it goes into trust status.
    4) For calculating tax losses for local governments, the valuation 
should be based on the proposed use of the land. BIA maintains that the 
evaluation of the tax loss impacts of taking land into trust should be 
based solely on the current use of the land, not what it will be 
developed for after acquisition. Often the current use is 
``undeveloped,'' with minimal tax value, whereas the proposed use is 
high-value commercial or gaming. We strongly suggest that when a tribe 
proposes a specific after-trust acquisition use of the land that is new 
or different from current use before the acquisition, BIA should be 
required to value the revenue loss to local governments on the proposed 
or intended basis to help support the county and other local government 
services that often will be provided to the new development.
Federal Sovereign Immunity
    BIA argues that once title to land acquired in trust transfers to 
the United States, lawsuits challenging that action are barred under 
the Quiet Title Act because federal sovereign immunity has not been 
waived. This is one of the very few areas of federal law where the 
United States has not allowed itself to be sued. The rationale for 
sovereign immunity should not be extended to trust land decisions, 
which often are very controversial and used to promote reservation 
shopping that enrich non-tribal investors at the expense of local 
governments. Third parties should have the right to challenge harmful 
trust land decisions, and BIA should not be allowed to shield its 
actions behind the federal government's sovereign immunity.
Intergovernmental Agreements and Tribal-County Partnerships
    CSAC has consistently advocated that Intergovernmental Agreements 
be required between a tribe and local government affected by fee-to-
trust applications to require mitigation for all adverse impacts, 
including environmental and economic impacts from the transfer of the 
land into trust. Such an approach is required and working well under 
recent California State gaming compacts. As stated above, if any 
legislative modifications are made, CSAC strongly supports amendments 
to IGRA that require a tribe, as a condition to approval of a trust 
application, to negotiate and sign an enforceable Intergovernmental 
Agreement with the local county government to address mitigation of the 
significant impacts of gaming or other commercial activities on local 
infrastructure and services.
    Under the new model advocated by CSAC, the BIA would be charged to 
assist tribes and counties to promote common interests through taking 
advantage of appropriate federal programs. For example, the BIA could 
play a productive role in helping interested governments take advantage 
of such programs as the Energy Policy Act of 2005 (to develop 
sustainable energy sources); the Indian Reservation Roads Program (IRR) 
(to clarify jurisdictional issues and access transportation funds to 
improve tribal and county roads serving tribal government); and Indian 
Justice System funding (to build collaboration between county and 
tribal public safety officials to address issues of common concern).
California's situation and the need for a suspension of fee-to-trust 
        application processing
    At present, there are over 70 applications from California tribes 
to take land into trust for purposes representing almost 7,000 acres of 
land (at least 10 of these applications seek to declare the properties 
``Indian lands'' and therefore eligible for gaming activities under 
IGRA). California's unique cultural history and geography, and the fact 
that there are over 100 federally-recognized tribes in the state, 
contributes to the fact that no two of these applications are alike. 
Some tribes are seeking to have land located far from their aboriginal 
location deemed ``restored land'' under IGRA, so that it is eligible 
for gaming even without the support of the Governor or local 
communities, as would be otherwise required.
    The U.S. Supreme Court's recent decision in Carcieri further 
complicates this picture. The Court held that the authority of the 
Secretary of the Interior to take land into trust for tribes extends 
only to those tribes under federal jurisdiction in 1934, when the 
Indian Reorganization Act (IRA) was passed. However the phrase ``under 
federal jurisdiction'' is not defined. CSAC's interpretation of the 
decision is that land should not be placed into trust under the IRA 
unless a tribe was federally recognized in 1934. This type of bright 
line rule provides clarity and avoids endless litigation.
    However, many California tribes are located on ``Rancherias'' which 
were originally federal property on which homeless Indians were placed. 
No ``recognition'' was extended to most of these tribes at that time. 
If a legislative ``fix'' is considered to the decision, it is essential 
that changes are made to the fee-to-trust processes to ensure improved 
notice to counties and to better define standards to remove property 
from local jurisdiction. Requirements must be established to ensure 
that the significant off-reservation impacts of tribal projects are 
fully mitigated. In particular, any new legislation should address the 
significant issues raised in states like California, which did not 
generally have a ``reservation'' system, and that are now faced with 
small Bands of tribal people who are recognized by the federal 
government as tribes and who are anxious to establish large commercial 
casinos.
    In the meantime, CSAC strongly urges the Department of the Interior 
to suspend further fee-to-trust land acquisitions until Carcieri's 
implications are better understood and new regulations promulgated (or 
legislation passed) to better define when and which tribes may acquire 
land, particularly for gaming purposes.
The Bills
    As stated above, while CSAC supports a ``Carcieri fix'' it most be 
one which addresses the critical repairs needed in the fee to trust 
process. Both H.R. 3697 and H.R. 3762, while redefining the word 
``now'' to resolve the question at issue in the Carcieri case, fail to 
set clear standards for taking land into trust, to properly balance the 
roles of tribes, state, local and federal governments in these 
decisions, and to clearly address the apparent usurpation of authority 
by the Executive Branch over Congress' constitutional authority over 
tribal recognition. H.R. 3742, in particular, serves to expand the 
undelegated power of the Department of the Interior by expanding the 
definition of an Indian tribe under the IRA to any community the 
Secretary of the Interior ``acknowledges to exist as an Indian Tribe.'' 
In doing so, particularly in California, the effect of the bill is to 
facilitate off reservation gaming by tribes and perpetuate the 
inconsistent standards that have been used to create tribal entities. 
Such a ``solution'' causes controversy and conflict rather than an open 
process which, particularly in California, is needed to address the 
varied circumstances of local governments and tribes.
Conclusion
    We ask that you incorporate these requests into any Congressional 
actions that may emerge regarding the Carcieri decision. Congress must 
take the lead in any legal repair for inequities caused by the Carcieri 
decision but absolutely should not do so without addressing these 
reforms. These are common-sense reforms that, if enacted, will 
eliminate some of the most controversial and problematic elements of 
the current trust land acquisition process. The result would help 
states, local governments and non-tribal stakeholders. It also would 
assist trust land applicants by guiding their requests to fair and 
equitable results and, in doing so, reduce the delay and controversy 
that now routinely accompany acquisition requests.
    We also urge the committee to reject any ``one size fits all'' 
solution to these issues. In CSAC's view, IGRA itself has often 
represented such an approach, and as a result has caused many problems 
in a State like California, where the sheer number of tribal entities 
and the great disparity among them, requires a thoughtful case-by-case 
analysis of each tribal land acquisition decision.
    Thank you for considering these views. Should you have questions 
regarding our testimony or if CSAC can be of further assistance please 
contact DeAnn Baker, CSAC Senior Legislative Representative, at (916) 
327-7500 ext. 509 or at [email protected].
                                 ______
                                 

          CSAC Congressional Position Paper on Indian Affairs

                               March 2009

    The California State Association of Counties (CSAC) is the single, 
unified voice speaking on behalf of all 58 California counties. Due to 
the impacts related to large scale tribal gaming in California, Indian 
issues have emerged as one of CSAC's top priorities. To address these 
issues CSAC adopted specific policy guidelines concerning land use, 
mitigation of tribal development environmental impacts, and 
jurisdictional questions arising from tribal commercial ventures 
(attached). There are at least two key reasons for this keen interest. 
First, counties are legally responsible to provide a broad scope of 
vital services for all members of their communities. Second, tribal 
gaming and other economic development projects have rapidly expanded, 
creating a myriad of economic, social, environmental, health, and 
safety impacts. The facts clearly show that the mitigation and costs of 
such impacts increasingly fall upon county government.
    In recognition of these interrelationships, CSAC strongly urges a 
new model of government-to-government relations between tribal and 
county governments. Such a model envisions partnerships which seek both 
to take advantage of mutually beneficial opportunities and insure that 
significant off-reservation impacts of intensive tribal economic 
development are fully mitigated. Towards this end, counties urge policy 
and legislative modifications which require consultation and adequate 
notice to counties regarding proposed rule changes, significant policy 
modifications, and various Indian lands determinations. As part of this 
effort CSAC favors creation of a Bureau of Indian Affairs (BIA) local 
government liaison to facilitate county tribal partnerships.
Introduction
    At the outset, CSAC reaffirms its absolute respect for the 
authority granted to federally recognized tribes and its support for 
Indian tribal self-governance and economic self-reliance. The 
experience of California counties, however, is that existing laws fail 
to address the unique relationships between tribes and counties.
    Every Californian, including all tribal members, depends upon 
county government for a broad range of critical services, from public 
safety and human services, to waste management and disaster relief. In 
all, California counties are responsible for nearly 700 programs, 
including sheriff, public health, child and adult protective services, 
jails and roads and bridges.
    Most of these services are provided to residents both outside and 
inside city limits. It is no exaggeration to say that county government 
is essential to the quality of life for over 35 million Californians. 
No other form of local government so directly impacts the daily lives 
of all citizens. In addition, because county government has very little 
authority to independently raise taxes and increase revenues, the 
ability to be consulted about and adequately mitigate reservation 
commercial endeavors is critical.
    The failure to include counties as a central stakeholder in federal 
government decisions affecting county jurisdictional areas has caused 
unnecessary conflict with Indian tribes. To address these issues CSAC 
has regularly testified and commented on congressional proposals and 
administrative rulemaking in this important area. Currently, three 
overall issues facing the new Administration and Congress are of 
preeminent importance.
Consultation and Notice
    A new paradigm is needed where counties are considered meaningful 
and constructive stakeholders in Indian land related determinations. 
For too long counties have been excluded from meaningful participation 
in critical Department of the Interior (DOI) decisions and policy 
formation which directly affects their communities. For example, Indian 
lands determinations, a critical step for a tribe to take land into 
trust for gaming purposes, is conducted in secret without notice to 
affected counties or any real opportunity for input. Incredibly, 
counties are often forced to file a Freedom of Information Act (FOIA) 
request to even determine if an application was filed and the basis for 
the petition.
    To begin to address these issues, CSAC recommends that within the 
BIA an office be created to act as liaison for tribes and local and 
state government. This office would be a point of contact to work with 
non-tribal governments to insure they have the information necessary 
regarding DOI programs and initiatives to help foster cooperative 
government to government relations with tribes. As part of this 
paradigm shift local governments would be consulted, in a manner 
similar to that as tribes, on proposed rule changes and initiatives 
that may impact counties.
    In addition, legislative and regulatory changes need to be made to 
insure that affected governments receive timely notice of fee to trust 
applications and petitions for Indian land determinations in their 
jurisdiction and have adequate time to provide meaningful input. For 
example, the Secretary should be required to seek out and carefully 
consider comments of local affected governments on Indian gaming 
proposals subject to the two-part test determination that gaming would 
be in the best interest of the tribe and not detrimental to the 
surrounding community (25 U.S.C. 2719 (b)(1)(A)). This change would 
recognize the reality of the impacts tribal development projects have 
on local government services and that the success of these projects are 
maximized by engagement with the affected jurisdictions.
Fee-to-Trust Acquisitions
Suspension of Fee-to-Trust Applications
    At present, there are over 70 applications from California tribes 
to take land into trust for purposes representing almost 7,000 acres of 
land (at least 10 of these applications seek to declare the properties 
``Indian lands'' and therefore eligible for gaming activities under 
IGRA). California's unique cultural history and geography, and the fact 
that there are over 100 federally-recognized tribes in the state, 
contribute to the fact that no two of these applications are alike. 
Some tribes are seeking to have lands located far from their aboriginal 
location deemed ``restored land'' under IGRA, so that it is eligible 
for gaming even without the support of the Governor or local 
communities, as would be otherwise required.
    The U.S. Supreme Court's recent decision in Carcieri v. Salazar 
(2009; No. 07-526) further complicates this picture. The Court held 
that the authority of the Secretary of Interior to take land into trust 
for tribes extends only to those tribes under federal jurisdiction in 
1934, when the Indian Reorganization Act (IRA) was passed. However the 
phrase ``under federal jurisdiction'' is not defined. CSAC's 
interpretation of the decision is that land should not be placed into 
trust under the IRA unless a tribe was federally recognized in 1934. 
This type of bright line rule provides clarity and avoids endless 
litigation.
    However, many California tribes are located on ``Rancherias'' which 
were originally federal property on which homeless Indians were placed. 
No ``recognition'' was extended to most of these tribes at that time. 
If a legislative ``fix'' is considered to address the decision, it is 
essential that changes be made to the fee-to-trust process that insure 
improved notice to counties, better defined standards to remove the 
property from local jurisdiction, and requirements that the significant 
off-reservation impacts of tribal projects are fully mitigated.
    In the meantime, CSAC strongly urges the Department of Interior to 
suspend further fee-to-trust land acquisitions until Carcieri's 
implications are better understood and new regulations promulgated (or 
legislation passed) to better define when and which tribes may acquire 
land, particularly for gaming purposes.
Mitigation Agreements
    CSAC has consistently advocated that Intergovernmental Agreements 
be required between a tribe and local government affected by fee-to-
trust applications to require mitigation for all adverse impacts, 
including environmental and economic impacts from the transfer of the 
land into trust. As stated above, if any legislative modifications are 
made, CSAC strongly supports amendments to IGRA that require a tribe, 
as a condition to approval of a trust application, to negotiate and 
sign an enforceable Intergovernmental Agreement with the local county 
government to address mitigation of the significant impacts of gaming 
or other commercial activities on local infrastructure and services.
Tribal County Partnerships
    Under the new model advocated by CSAC, the BIA would be charged to 
assist tribes and counties to promote common interests through taking 
advantage of appropriate federal programs. For example, the BIA could 
play a productive role in helping interested governments take advantage 
of such programs as the Energy Policy Act of 2005 (to develop 
sustainable energy sources); the Indian Reservation Roads Program (IRR) 
(to clarify jurisdictional issues and access transportation funds to 
improve tribal and county roads serving tribal government); and Indian 
Justice System funding (to build collaboration between county and 
tribal public safety officials to address issues of common concern.
    CSAC is committed to collaboratively addressing these important 
issues which so significantly affect our communities.
    For further information please contact DeAnn Baker, CSAC 
Legislative Representative at (916) 327-7500 ext. 509 or at 
[email protected] or Kiana Buss, CSAC Legislative Analyst at (916) 
327-7500 ext. 566 or [email protected].
                                 ______
                                 
    Mr. Kildee. Thank you very much, Mr. Woodside.
    Our next witness is Mr. Riyaz Kanji of Kanji & Katzen, on 
behalf of the Grand Traverse Band of Ottawa, Chippewa Indians. 
Mr. Kanji.

 STATEMENT OF RIYAZ KANJI, KANJI & KATZEN, PLLC, ON BEHALF OF 
  THE GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, ANN 
                        ARBOR, MICHIGAN

    Mr. Kanji. Chairman Kildee, Ranking Member Hastings, 
honorable members of the Committee, I very much appreciate the 
invitation to appear before the Committee today.
    I speak here on behalf of the Grand Traverse Band of Ottawa 
and Chippewa Indians, a tribe well known to Chairman Kildee. I 
was accompanied by the Band's Chairman, The Honorable Derrick 
Bailey, who unfortunately had to depart during the adjournment.
    I would like to touch very briefly on the Band's history 
and use it to illustrate what I believe to be the compelling 
reasons why H.R. 3697 and H.R. 3742 should be reported 
favorably out of this Committee and enacted into law. The 
Band's history tracks the fact pattern that Chairman Kildee 
alluded to in one of his questions earlier.
    The United States first recognized the Band in the 1795 
Treaty of Greenville and then entered into a series of 
subsequent treaties with the Band and other Michigan tribes in 
the 19th century, most notably the 1836 Treaty of Washington 
and the 1855 Treaty of Detroit.
    However, in 1872, Secretary of the Interior Columbus 
Delano, acting on his own, misread the 1855 Treaty of Detroit 
as calling for the termination of the relationship between the 
Federal government and the signatory tribes. And from that 
point forward, the Department of the Interior, acting without 
Congressional blessing, ceased to recognize any of those 
signatory tribes.
    The consequences of that action for the Grand Traverse Band 
and the sister tribes were devastating. The Band suffered 
through decades of increasing poverty and the destruction of 
its land base. But the Band maintained its cohesiveness and 
identity as a Native American tribe and fought ceaselessly to 
be restored to Federal recognition. Those efforts bore fruit in 
1980 when the Band was the first tribe to be acknowledged by 
the Department of the Interior under the new Federal 
acknowledgment process.
    Because Congress never terminated Federal jurisdiction over 
the tribe because it maintained its cohesiveness as a Native 
American tribe, the Band is confident that it can establish 
that it remained under Federal jurisdiction in 1934 and hence 
even under the terms of the Carcieri decision remains entitled 
to the protections of the IRA.
    However, the Band strongly urges the enactment of 3697 and 
3742 into law for several compelling reasons. First, it is 
unclear if or when the Department will act on the Band's 
submission that it remained under Federal jurisdiction and on 
its pending trust applications. We hear a lot about the trust 
process. The Attorney General referred to it as lawless. I 
think it is important to remember that many land-into-trust 
applications, which are the lifeblood of tribal governments, 
are noncontroversial, are nongaming related.
    The Band currently has eight applications pending before 
the Department. All are within the Band's historic territory. 
All are contiguous to existing trust lands. None are for gaming 
purposes. None are objected to by the State of Michigan or by 
any local unit of government. But action on those is stalled 
and will remain stalled unless either the Department acts or we 
get Congressional action. Even if the Department were to take 
favorable action, that would not relieve the Band of the 
specter of years of seemingly endless litigation, which 
threaten to continue to disrupt the Band's exercise of its 
sovereign powers.
    The attorneys general of 17 states in a letter to this 
Committee in April signaled their intention to take a very 
cramped view of the Carcieri decision as holding that only 
those tribes that were actually Federally recognized in 1934 
are entitled to the protections of the IRA. Litigation over 
that or other theories could endure for a decade or more and 
could forestall favorable resolution of these issues.
    Just by way of illustration, the Carcieri decision itself 
was filed in July of the year 2000. As this Committee knows, 
the Supreme Court handed down its decision in February of 2009. 
And as the Committee further knows, that Supreme Court decision 
raised more questions than it answered. So failure to act with 
legislation could threaten tribes and other units of government 
with a decade or more of further litigation.
    It would be fundamentally unfair and serve no good purpose 
I would submit to put the Band and similarly situated tribes 
through another decade or more of disruption that would be 
engendered by further litigation over the meaning of the IRA. 
The Band's history demonstrates in compelling fashion that it 
was not through any fault of its own, through none of its 
actions, through no issues having to do with its own identity 
that it was not Federally recognized as of 1934. To now deny 
the Band the protections of the IRA or to force it and 
similarly situated tribes through another decade of litigation 
would simply compound the historical injustices suffered by the 
band as the result of decades of misguided Federal action.
    The principal argument that we hear today and otherwise in 
opposition to the straightforward but fundamentally important 
corrective legislation that has been proposed is that the 
entire land-into-trust process should be reexamined as part of 
any Carcieri fix. I think that is tantamount to arguing that 
where a patient comes into a hospital with a severely injured 
knee the doctors should not operate on that knee but should 
take critical time to instead examine other parts of the 
patient's body and decide whether action needs to be taken 
there.
    The Bands, the tribes themselves, have fundamental concerns 
with the land-into-trust process. The tribes would support a 
reexamination of that process, but vindication of the 
fundamentally important principle that all tribes stand on an 
equal footing and are entitled to the protections of the IRA 
should not await that comprehensive reexamination, which could 
take years and which could just result in further delay and 
defeat. Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Kanji follows:]

           Statement of Riyaz A. Kanji, Kanji & Katzen, PLLC

    I very much appreciate the invitation to appear before the 
Committee today.
    By way of brief background, I graduated from the Yale Law School in 
1991, served as a law clerk to Justice David Souter of the United 
States Supreme Court in the October Term 1994, and have practiced and 
taught in the field of federal Indian law ever since.
    I speak here today on behalf of the Grand Traverse Band of Ottawa 
and Chippewa Indians (``GTB'' or the ``Band''). I am accompanied by the 
Band's Chairman, The Honorable Derek Bailey. Others have testified 
before this Committee regarding the flaws in the Supreme Court's 
holding in Carcieri v. Salazar, 555 U.S.__, 129 S.Ct. 1058 (2009), that 
the protections of the Indian Reorganization Act, 25 U.S.C. Sec. 461 et 
seq. (``IRA''), are restricted to those Tribes that were under federal 
jurisdiction on June 18, 1934, the date of the statute's enactment. I 
will not repeat that testimony here. Instead, using the Band and its 
history as an example, I will discuss the compelling reasons why the 
straightforward but critically important corrective legislation 
embodied in House Bills 3697 and 3742 should be reported favorably out 
of this Committee and enacted into law.
A Brief History of the Grand Traverse Band's Jurisdictional 
        Relationship With the United States
    The Band is a federally-recognized Tribe located near Grand 
Traverse Bay in the northwest Lower Peninsula of Michigan. It consists 
of approximately 4000 members who descend primarily from the Odawa 
(Ottawa) and Ojibwa (Chippewa) peoples of the northern Lower Peninsula 
and eastern Upper Peninsula of Michigan. As the Department of the 
Interior found in 1980, GTB (and its political forebears) have 
maintained ``a documented continuous existence in the Grand Traverse 
Bay area of Michigan since at least as early as 1675.'' Department of 
the Interior, Determination for Federal Acknowledgement of [GTB] as an 
Indian Tribe (``DOI Acknowledgement Determination''), 45 Fed. Reg. 
19321 (March 25, 1980).
    The United States first recognized and established a government-to-
government relationship with the Band through the Treaty of Greenville, 
7 Stat. 49, in 1795. See Grand Traverse Band of Ottawa and Chippewa 
Indians v. Office of U.S. Atty. for the Western District of Michigan, 
369 F.3d 960, 967 (6th Cir. 2004) (``Grand Traverse Band'') (``[t]he 
Band had treaties with the United States and a prior relationship with 
the Secretary of the Interior at least as far back as 1795''). The 
United States continued to exercise jurisdiction with respect to GTB 
through a series of nineteenth-century treaties, most notably the 1836 
Treaty of Washington, 7 Stat. 491, and the 1855 Treaty of Detroit, 11 
Stat. 621. Between them, those treaties provided for the cession of 
large swaths of land by GTB and its sister Tribes, reserved for the 
Tribes smaller areas of land for their continued occupation, and 
further reserved to them off-reservation hunting, fishing and gathering 
rights. The treaties also confirmed for the Tribes the provision of 
federal services, supplies and annuities, and explicit federal 
recognition and government-to-government relationships with the United 
States going forward. Grand Traverse Band, 369 F.3d at 961.
    In 1872, however, Secretary of the Interior Columbus Delano, in 
violation of the United States' solemn treaty obligations, ceased 
treating GTB and other signatories to the 1855 Treaty of Detroit as 
federally-recognized Tribes. As the Sixth Circuit explained in the 
Grand Traverse Band case:
        Ignoring the historical context of the treaty language, 
        Secretary Delano interpreted the 1855 treaty as providing for 
        the dissolution of the tribes once the annuity payments it 
        called for were completed in the spring of 1872, and hence 
        decreed that upon finalization of those payments ``tribal 
        relations will be terminated.'' Letter from Secretary of the 
        Interior Delano to Commission of Indian Affairs at 3 (Mar. 27, 
        1872). Beginning in that year, the Department of the Interior, 
        believing that the federal government no longer had any trust 
        obligations to the tribes, ceased to recognize the tribes 
        either jointly or separately.
Grand Traverse Band, 369 F.3d at 961 n.2. The Sixth Circuit concluded 
that, based on Secretary Delano's misreading of the Treaty of 1855, 
``the executive branch of the government illegally acted as if the 
Band's recognition had been terminated, as evidenced by its refusal to 
carry out any trust obligations for over one hundred years.'' Id. at 
968 (emphasis in original).
    The termination of GTB's federal recognition had dire consequences 
for the Band. ``Because the Department of Interior refused to recognize 
the Band as a political entity, the Band experienced increasing 
poverty, loss of land base and depletion of the resources of its 
community.'' Grand Traverse Band, 369 F.3d at 969 (internal quotation 
marks and citation omitted). The Band, however, maintained its 
cohesiveness and identity as an Indian Tribe in the difficult years 
that ensued, DOI Acknowledgement Determination, 45 Fed. Reg. 19321, and 
for over a century it sought to regain federal recognition. Its efforts 
bore fruit in 1980, when it became the first Tribe recognized by the 
Department of the Interior pursuant to the formal Federal 
Acknowledgment Process, 25 C.F.R. Part 54 (now Part 83). See 45 Fed. 
Reg. 19321-22.
    Since that time, the Department has consistently accorded the Band 
the benefits of the IRA. The Department approved the Band's 
Constitution in 1988, and has taken 43 parcels of land into trust for 
the Band totaling just over 1,000 acres. All of these trust 
acquisitions have fallen within the Band's historic territory 
surrounding Grand Traverse Bay and have been utilized by the Band for 
four critical governmental purposes: the provision of core governmental 
services (including tribal government offices, a health clinic, courts, 
law enforcement, social services, and natural resources management); 
housing (including elders housing constructed with HUD grants, and lot 
assignments to enrolled members for residences); economic development 
and diversification (two small-to-mid-sized casinos and related 
businesses); and treaty rights-related activities (preservation of 
lands utilized for the exercise of hunting, gathering and fishing 
rights reserved by the 1836 Treaty of Washington (7 Stat. 491)).
    While executive branch officials did not accord formal recognition 
to the Band between 1872 and 1980, Congress evidenced no intent during 
this period to terminate federal jurisdiction over the Band, 45 Fed. 
Reg. 19321-22, and the Band never removed itself from the purview of 
that jurisdiction by disbanding, dissolving or otherwise surrendering 
its own status as an Indian Tribe. Id. Indeed, Commissioner of Indian 
Affairs John Collier, the architect of the Indian Reorganization Act, 
engaged in correspondence with the federal Indian agent in Michigan 
shortly prior to the passage of the IRA in which he made clear his view 
that the Band remained under the jurisdiction of the federal 
government. See Attachment to GTB Submission on Carcieri's ``Under 
Federal Jurisdiction'' Requirement in Connection With Pending Fee-to-
Trust Applications (on file with the Committee). In 1994 legislation 
restoring two of the Band's sister Tribes (the Little River Band of 
Ottawa Indians and the Little Traverse Bay Bands of Odawa Indians) to 
federal recognition, the Congress likewise found that the three Bands 
had maintained a ``continued social and political existence'' 
subsequent to Secretary Delano's actions and that federal officials 
including Commissioner Collier had concluded that the Bands were 
eligible for reorganization under the IRA. See 25 U.S.C. Sec. 1300k 
(noting the shared history of the three Tribes) and Sec. 1300k(5); see 
also Grand Traverse Band, 369 F.3d at 962 (deeming the jurisdictional 
history of the Tribes to be ``essentially parallel.'')
    Accordingly, the Band is confident that it was ``under federal 
jurisdiction'' at the time of the IRA's enactment and hence that, 
pursuant to the Carcieri decision, it remains eligible for the 
protections of the IRA. As Justice Breyer put it in discussing GTB's 
jurisdictional history in his concurring opinion in Carcieri, that 
history serves as a prime example of the circumstance where ``later 
recognition [by the executive branch] reflects earlier ``Federal 
jurisdiction.'' Carcieri, 129 S.Ct. at 1070 (Breyer, J., concurring). 
In June of this year, the Band made a submission to the Interior 
Department in which it detailed these points.
Fundamental Considerations Support the Enactment of House Bills 3697 
        and 3742 into Law
    While the Band is hopeful that the Department will agree with the 
arguments made in its submission and continue to accord it the 
protections of the IRA, it urges the Committee to report favorably on 
House Bills 3697 and 3742. Several fundamental considerations support 
the enactment of those Bills into law.
    In the first instance, it is not clear if or when the Department 
will act on the Band's submission, or on the submissions that have been 
made by other Tribes in the wake of the Carcieri decision. The Band has 
eight fee-to-trust acquisition requests (totaling approximately 260 
acres) pending with the Department. All of these proposed trust 
acquisitions fall within the Band's historic territory and almost all 
are contiguous to existing trust lands. None are gaming-related. The 
Band intends to use the parcels for housing, the provision of 
governmental services, and economic development and diversification. 
See Exhibit A (GTB's Pending Trust Acquisition Requests (FY 2009)). 
None of the proposed acquisitions are objected to by the State of 
Michigan or any local unit of government and the Band understands that 
a number of these parcels were very close to being placed into trust by 
the Department. However, action on them has stalled in the wake of the 
Carcieri decision. The indefinite delay is hampering the Band in its 
efforts to function effectively as a sovereign and to provide its 
citizens with critical governmental and economic services, just as 
Carcieri-induced delays are thwarting the efforts of other Tribes 
around the country to carry out their governmental responsibilities 
effectively.
    Even if the Department does take favorable action on the Band's 
submission and pending trust applications, moreover, the specter of 
seemingly endless litigation will continue to haunt the Band and 
similarly situated Tribes absent the passage of corrective legislation 
by Congress. In a letter sent to this Committee in April of this year, 
the Attorneys General of seventeen States signaled their intention to 
take a cramped view of the Carcieri decision as holding that only those 
Tribes that were formally recognized as of 1934--rather than those 
Tribes that were under federal jurisdiction at that time--are entitled 
to the benefits of the IRA. While this is not a fair or accurate 
reading of the decision, litigation over that theory, or over other 
arguments raised in opposition to any decision by the Department to 
continue according the benefits of the IRA to the Band or similarly 
situated Tribes, would take years to unfold and would cause great 
uncertainty in the meantime.
    The history of the Carcieri litigation demonstrates vividly just 
how long the disruption could last. That case was filed on July 31, 
2000. The district court rendered its decision in September of 2003. 
The First Circuit handed down its first decision in February of 2005, 
and its en banc decision in July of 2007. The Supreme Court then ruled 
in February of 2009, and as this Committee knows, far from ending the 
controversy over the proper interpretation of the IRA, the Court raised 
more questions than it answered, including what it means for a Tribe to 
have been under federal jurisdiction in 1934.
    It would be fundamentally unfair, and serve no good purpose, to put 
the Band and similarly situated Tribes through another decade or more 
of the disruption that will be engendered by further litigation over 
the meaning of the IRA. The Band's history demonstrates in compelling 
fashion what is a common fact pattern for many Tribes in different 
parts of the country: the fact that the Band was not officially 
recognized in 1934 had nothing to do with its own actions or identity, 
but rather resulted from grievous errors (or malfeasance) committed by 
executive branch officials, whose actions imposed great hardship on the 
Band and its members. To now deny the Band the protections of the IRA, 
or to subject it to the time, expense and uncertainty associated with 
further litigation over the interpretation of the statute, would simply 
compound the harm that the Band suffered for decades as the result of 
misguided federal behavior. It would be a classic case of adding insult 
to injury, except that the terms ``insult'' and ``injury'' vastly 
understate the tremendous loss of life, land, and opportunity that GTB 
and its members experienced during the years when the federal 
government wrongly refused to honor the solemn treaty promises it had 
made to the Band and to recognize the Band as eligible for the 
protections of the IRA.
    The fundamental inequity of the situation is placed into even 
sharper relief when GTB's present position is compared to that of two 
of its sister Tribes in Michigan, the Little River Band of Ottawa 
Indians and the Little Traverse Bay Bands of Odawa Indians. As noted 
above, those Tribes share a similar jurisdictional history with GTB. 
All three were signatories to the 1836 Treaty of Washington and the 
1855 Treaty of Detroit, and all three were victims of Secretary 
Delano's misguided decision in 1872. However, while GTB was successful 
in being restored to federal recognition by the Department of the 
Interior in 1980, those two Tribes were stymied by the administrative 
process, and had to turn to Congress for help. Congress then enacted 
the 1994 legislation previously discussed, in which it restored the 
Tribes to federal recognition and explicitly made the benefits of the 
IRA applicable to them. 25 U.S.C. Sec. 1300(k)-2(a), 4. As a result, 
those sister Tribes have not had to live through the disruption or 
chaos engendered by the Carcieri litigation, and do not have to fear 
the specter of further such litigation. GTB does not begrudge them this 
fact one bit. Instead, the point is that all federally-recognized 
Tribes should be in the same position of enjoying the protections of 
the IRA without the need for an additional decade or more of litigation 
to secure those protections. If enacted into law, House Bills 3697 and 
3742 would provide all federally-recognized Tribes with that basic 
security.
    In doing so, the Bills would ratify the fundamental principle that 
all federally-recognized Tribes stand on an equal footing with one 
another. The Supreme Court and the Congress have long adhered to the 
equal footing doctrine in pronouncing that the fifty states enjoy the 
same basic sovereign prerogatives, regardless of the date of their 
admission into the Union. That same principle is of no less importance 
when it comes to federally-recognized Tribes, and Congress gave 
vigorous voice to that principle in enacting the 1994 Amendments to the 
IRA. See 25 U.S.C. Sec. 476(f) and (g). The Supreme Court ignored the 
principle in its Carcieri decision, but Congress, as the branch of 
government with plenary power over Indian affairs, has another 
opportunity in the form of the pending legislation to assert the 
paramount importance of equal tribal standing in federal Indian law.
    The arguments that have been advanced in opposition to the bills 
pending before this Committee pale in comparison to the fundamental 
considerations of fairness and security that support their passage. 
Those arguments fall into two basic categories.
    First, those opposed to tribal gaming oppose any Carcieri fix on 
the basis that thwarting such a fix may assist, albeit in a very 
indirect fashion, in curbing the further expansion of such gaming. 
However, as the Band's situation vividly illustrates, the issue of a 
Carcieri fix transcends the question of tribal gaming, and in truth has 
very little to do with it. As discussed above, the Band currently has 
eight land-into-trust applications pending with the Department. The 
Band seeks to have the parcels in question placed into trust in order 
that it can provide critically needed housing and other governmental 
services to its members, and in order that it can engage in economic 
diversification activities. Like many other Tribes around the country, 
the purpose of its pending trust applications is not to establish new 
gaming facilities.
    As this Committee well knows, Indian gaming is not governed by the 
IRA, but by the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et 
seq., and by regulations promulgated by the Interior Department and the 
National Indian Gaming Commission that have to do with such gaming. If 
there are concerns about Indian gaming that need to be addressed, IGRA 
and those regulations are the vehicle through which such concerns 
should be raised. Vindication of the critically important principle 
that all federally-recognized Tribes stand on an equal footing and are 
entitled to the protections of the IRA should not be derailed by any 
red herring, including the red herring of Indian gaming. To allow this 
to happen would again be to compound the historical injustices suffered 
by the Tribes that currently are confronting the disruption engendered 
by the Carcieri decision.
    Second, a number of States that have concerns about the land-into-
trust process have argued that Congress should not enact a 
straightforward Carcieri fix, but should instead perform a 
comprehensive examination of the land-into-trust process first. That is 
tantamount to arguing that where a patient comes into the hospital with 
a severely damaged knee, the doctors should not operate on the knee, 
but should instead devote critical time and attention to first 
examining potential problems that the patient may have in other parts 
of her body. The Carcieri decision gave tribal opponents the ammunition 
to argue that an entire class of Tribes should be removed from the 
protections of the IRA. Those protections transcend the land-into-trust 
process, and include the ratifications of the Tribes'' very 
constitutions and the chartering of Tribal corporations. While the 
Tribes too have significant concerns about the land-into-trust process 
(including the long delays that attend action even on unopposed trust 
acquisitions), the ratification of the simple but vitally important 
principle that all federally-recognized Tribes are entitled to the 
protections of the IRA should not be held hostage to the re-examination 
of that process. That is simply an argument for delay and defeat. If 
the land-into-trust process is to be re-examined, that re-examination 
can surely take place once the principle of equality is reaffirmed.
    In closing, the Grand Traverse Band would like to thank the 
Committee for the careful consideration it is giving to House Bills 
3697 and 3742, and to urge prompt and favorable action on those Bills.
[GRAPHIC] [TIFF OMITTED] 53253.001

                                 .eps__
                                 
    Mr. Kildee. Thank you very much. Just as an aside, my 
father lived in the area of where your reservation is, Buckley, 
Michigan. And I can recall I had a hearing up there one time or 
a meeting, and I had announced that I would be holding it on a 
sovereign territory of your tribe, and I found out at the 
beginning of the meeting we were in the wrong room, that the 
boundary line of your tribe at that time bisected a building, 
and this room was trust land and this room was fee land. So I 
insisted then we move into the trust land. So things get a 
little complicated at times, but I recall that hearing very, 
very much.
    I know the Attorney General has to leave shortly, so if you 
do not mind, without objection, the rest of you, I will address 
a question to the Attorney General first, not because of his 
title, although I respect that, but because of his schedule, 
which he has shared with us.
    Attorney General, you testified that the Indian 
Reorganization Act should only extend to those tribes Federally 
recognized in 1934. Yet there are numerous tribes for whom 
Congress ratified treaties, had and were providing benefits to 
but were allegedly not Federally recognized in 1934. Please 
explain how the relationship with these tribes was terminated 
given that Congress took no explicit action to terminate its 
authority over those tribes.
    Mr. Blumenthal. Well, thank you very much for the question 
and for accommodating my schedule. And I do apologize that I 
may have to leave early, although I will stay as long as I can.
    I believe either the Department of the Interior or the 
Congress has to clarify what is meant by that term, ``Federal 
jurisdiction'', because, as was observed earlier this morning, 
the Court did not do so in its opinion. Justice Thomas on 
behalf of the Court did not do so. Justice Breyer raised the 
issue in his concurring opinion. The Court agreed as to the 
basic principle, and they correctly decided that principle.
    But the Congress could clarify that issue in the context of 
a broader measure. In my view, that issue would be mooted if it 
adopted the recommendation that I have made, which is that it 
take back authority for all of these fee into trust decisions. 
And if it doesn't and if the current administrative process 
continues, then it should reform that process to provide 
notice, standards, adequate information, because right now 
there are none of the basic due process standards for 
communities, local governments, for state governments, not to 
mention for ordinary citizens.
    And I would just conclude by saying I accept the analogy to 
the surgical procedure that is necessary for someone coming 
into an emergency room. And there may be a need for immediate 
triage simply to stop the bleeding, but all the better if the 
surgical procedure is not a quick fix. And I think everyone 
testifying, pro and con, has referred to it as a fix. It is a 
quick fix that in the long term may do more harm than good.
    And I think that the medical analogy again would teach us 
first do no harm. And if we are worried about litigation, I can 
predict to you 10 more years of crippling litigation in the 
wake of these two measures because they leave the basic legal 
problems unresolved, one of which is involved in your question.
    Mr. Kildee. Thank you very much. The Chair recognizes the 
Ranking Republican Member of this Committee, Mr. Hastings.
    Mr. Hastings. Thank you, Mr. Chairman. I want to follow up 
on the question if I can, General Blumenthal. You mentioned in 
your oral testimony that the process is lawless and you 
somewhat reiterated that within Department of the Interior. Is 
the solution to that statutory or administratively in your 
view?
    Mr. Blumenthal. Excellent question, sir. I think it is 
both, and I could expound at greater length, but let me try to 
be as brief as possible.
    Mr. Hastings. Do it briefly, but submit if you would for 
the record some specifics. But if you would, please.
    Mr. Blumenthal. I will be happy to. The statute right now 
is exceedingly vague. The IRA says that the Secretary of the 
Interior may take land into trust ``for the purpose of 
providing land to Indians.'' End of statement of purpose. The 
regulations are equally in a sense open-ended because the 
Secretary has limited his discretion or one would say has 
expanded his discretion by saying that any of his regulations, 
any of his standards can be waived. He can waive or make 
exceptions to the regulations ``where permitted by law and the 
Secretary finds that such waiver or exception is in the best 
interest of the Indian.''
    Now the Secretary of the Interior is a trustee for the 
tribes. Legally he has a responsibility. When land is taken 
into trust and when a tribe is recognized Federally, for the 
well being of that land and that tribal nation, he is a 
trustee. He is responsible only to their interests. But, as you 
have heard and you know from dealing with your own 
constituents, there are a lot of other interests involved in 
taking land into trust, loss of taxation authority, but even 
more important than the money, jurisdictional issues, criminal 
enforcement, environmental and other civil enforcement.
    So these decisions are exceedingly important and right now 
in both law and regulation I think need clarification. And they 
are also procedurally defective because, again, states, 
citizens have difficulty getting any notice, any information, 
any voice in the process. So I think it is both.
    Mr. Hastings. In following up on that, and I know I am 
asking you to answer in a broad way, but all the other 
attorneys general that were involved in the Carcieri case and 
probably those that have communicated with you since then, do 
you think they too share a similar concern?
    Mr. Blumenthal. Very definitely, absolutely so, which is 
the reason why they feel so strongly about the Carcieri 
decision. Again, I would stress to you, sir, and to other 
members of the Committee, if you look at the decision, and I 
can give you the names of the states, but they are Republican 
and Democrat attorneys general with very differing views on 
almost any other issue. They are across the Nation 
geographically, ideologically, you know, dissimilar in many 
respects but united on this issue, and they strongly share 
these concerns.
    Mr. Hastings. Well, I said in my opening remarks that this 
is not a partisan issue, and that is evidenced by the fact that 
the sponsors of both the bills that we are having a hearing on 
today, one is a Republican and one is a Democrat. So I totally 
agree with you on that. My concern in asking this is sometimes 
an opportunity or a decision afford us an opportunity to look 
more deeply at some of the problems, and so that is the reason 
for my line of questioning. And with that, Mr. Chairman, thank 
you very much, and I will yield back.
    Mr. Kildee. Before I yield to the gentleman from New 
Mexico, just one brief comment. You mentioned that there seems 
to be a conflict within the Secretary's office of having a 
trust responsibility toward the Native Americans and also 
obligated to watch out for their well being. Well, that 
conflict exists throughout the Federal government, exists in 
this Congress.
    I am part of that trust responsibility. The trust 
responsibility is not just with the executive branch of 
government. The trust responsibility is with the entire U.S. 
Congress. That has been clear through the years. It is a trust 
responsibility where we are obligated to look out for their 
well being, look out for them in that area. But also we do have 
an obligation to see to their well being as citizens of their 
nation, as citizens of their state and as citizens of the 
United States.
    You and I, Attorney General, we have two citizenships. I am 
an 80-year citizen of the State of Michigan. I am an 80-year 
citizen of the United States. And that is it. But I bid the 
gentleman, Mr. Kanji, has three citizenships. He is not a 
tribal member, so we will say George Bennett, your former 
chief. George Bennett has three citizenships. He is a citizen 
of the State of Michigan. Has been not as long as I have been. 
He is a citizen of the United States, and members of that tribe 
have served dutifully in the armed forces, and he is a citizen 
of the tribe to which he belongs, the Grand Traverse Band of 
Ottawa and Chippewa.
    So the conflict you mention is going to stay there no 
matter what we do, no matter what legislation we write, how we 
restrict the Secretary. That conflict of being both trustee and 
having another role with the Indians is there. I appreciate the 
fact, though, that you raised it, and you raised it to one of 
our most savant members right here, Doc Hastings, who will mull 
that over very, very carefully.
    Mr. Blumenthal. May I just respond very, very briefly?
    Mr. Kildee. Absolutely, absolutely.
    Mr. Blumenthal. I apologize. And I would just say, with all 
due respect, sir, I recognize and respect the feeling of 
obligation that you feel and I share for the oppression and the 
injustice that has been visited by our nation on Native 
Americans over our history and the ongoing obligation to help 
address the concerns that have been raised here and the well 
being that again we share a concern for addressing.
    But the legal obligation as apart from that moral 
obligation with the Secretary of the Interior is different. It 
is the reason why he has been held, not this Secretary but the 
Office of Secretary, in contempt of Court by a Federal judge, 
because he has a trusteeship obligation that is different from 
yours and mine.
    So I agree with you that we have that obligation, but his 
legal obligation is a bit different. And I didn't mean to 
introduce that distracting element, but I think it raises the 
more important question of how do we strike a balance here and 
the larger, very profoundly important questions that we need to 
get right if we are going to change the system not through a 
quick fix that kind of puts a band aid on that broken knee but 
something that really addresses the broken knee.
    Mr. Kildee. I would say that I think the Secretary, of 
course, is the most exposed one to whom we assign specific 
responsibilities, so it is natural the attorney go after him or 
her.
    The gentleman from New Mexico.
    Mr. Heinrich. I thank the gentleman from Michigan. I wanted 
to ask Attorney General Blumenthal a related question and sort 
of follow up on some of the questions that my colleagues have 
already made.
    I wanted to ask you to clarify a statement that you make in 
your written testimony. You had said tribes recognized after 
1934 are unaffected by the failed Federal policies of the IRA 
that the IRA was intended to correct. No post-1934 tribes lost 
land because of the General Allotment Act of 1887.
    Now we have heard from representatives of several tribes 
that were either unrecognized in 1934, had an uncertain 
recognition status in that year. However, these tribes also 
recount very damaging actions by the Federal government that 
resulted in their tribes losing land prior to that year. I want 
to ask, is it really your assertion that these post-1934 tribes 
were unaffected by Federal Indian policy prior to that date?
    Mr. Blumenthal. No, sir. I apologize if my statement gave 
you that impression. But the Carcieri court, the United States 
Supreme Court in the Carcieri decision, said essentially one of 
the reasons why we believe it applies only to the tribes 
recognized or under Federal jurisdiction now, meaning then in 
1934, is that it very specifically was meant to remedy the 
problems created by that 1887 act of Congress, the General 
Allotment Act.
    There is no question that policies prior to 1934 and after 
1934 have created injustices and even immoralities that need to 
be addressed now by our nation, and one of the ways to do it is 
to put land into trust, but it should be by a system that is 
fair, accountable and transparent. And I did not mean to 
suggest that there had been no problems in Federal policy since 
1934 or pre-1934 that would affect tribes recognized since.
    Mr. Heinrich. I want to thank the general. I want to just 
make the point that, as the witnesses here testified today, 
many tribes were unrecognized in 1934 because of harmful 
Federal policies. And from my point of view, it hardly seems 
fair to declare that these tribes are outside the boundaries of 
the IRA simply because the Federal government had been more 
successful in its efforts to dilute their land base than it was 
with other tribes. And with that, I would yield back to the 
gentleman from Michigan.
    Mr. Kildee. Before I yield to the Ranking Member, my father 
was born in 1883, and he can recall vividly a tribe in Michigan 
whose reservation was burned to the ground by the sheriff. The 
Governor had put that land on the tax rolls illegally and 
without telling the tribe and exactly one year and one day 
later, when the taxes were not paid, came in to push the 
Indians off their own land and to make sure they did not return 
burned the town down to the ground. This was my dad's, he was a 
17-year old, remembered that all his life and told us kids how 
unfair the Indians were treated.
    So they in one sense lost their land base in fact, but I 
don't think so in law. They lost their land base. They are 
struggling now to get their land base back, and they are before 
the BIA right now and they are looking at all the records. The 
Catholic Church probably kept the best records of people who 
stayed there even though their village had been burned down.
    So a lot of times the land was lost not by law but by fact, 
and they are struggling to get that land back, and that is why 
we generally leave those things with the BIA to make that 
determination.
    But I will yield to the gentleman from Washington, and 
thank you for your patience.
    Mr. Hastings. Well, thank you, Mr. Chairman. I have no 
further questions, but I just want to say this is an immensely 
important decision, and I think that it is the responsibility 
obviously of this Committee and this Congress to try to seek 
some sort of resolution to it.
    That being said, as I mentioned in my opening statement, 
there were a number of people obviously on both sides of the 
issue, and the Supreme Court has ruled. If we are indeed a 
country of laws, then we have to make sure that we get it 
right. But I, again, having represented a district that has two 
tribes, well, one by the way that is not recognized at all, I 
think we need a solution to this.
    So I look forward to working with you on this issue, and I 
want to thank all of the witnesses, especially those tribes 
from my State of Washington, although you are on the wet side 
of the state and I am from the dry side of the state. We won't 
go into all of that, but thank you for making the trip out 
here. Thank you very much.
    Mr. Blumenthal. And if I may just comment, Mr. Chairman, on 
behalf of the Attorneys General, we are very eager and willing 
and ready to continue participating in this process, working 
toward a common solution. We are not saying by any means there 
is no need for a solution. Let us just make sure it is the 
right solution that respects the needs of citizens and 
communities and towns and cities and states as well as a fair 
process and also that recognizes the past injustices and the 
need to deal fairly and effectively with the problems of Native 
American sovereign tribes that are recognized by the Federal 
government.
    And I emphasize sovereign because that is a principle that 
we respect, and it is one of the reasons why we have to get it 
right when we make these changes in law.
    Mr. Kildee. I appreciate that, and as I mentioned before, I 
think the Ranking Member requested a longer answer, a more 
fulsome answer. We will leave the record open for another say 
14 days, and we will allow ourselves 10 days to submit 
questions to you.
    Mr. Blumenthal. Well, you know, Mr. Chairman, lawyers are 
always happy to give longer answers.
    Mr. Kildee. I am a Latin teacher, so I don't know.
    Let me ask Mr. Kanji a question. Do you believe that the 
legislation before us will have both a retroactive and 
prospective effect?
    Mr. Kanji. I do, Chairman Kildee, and I think that is 
critically important. I think the bills have been drafted both 
to provide the Secretary with the authority going forward to 
accord the protections of the IRA to all Federally recognized 
tribes but also to protect past Secretarial decisions against 
litigation.
    And I think there seems to be a common feeling on the part 
of everyone in this room that the avoidance of litigation is 
critically important to all the sovereign governments affected 
here and it does no one any good. It doesn't do the tribes any 
good, the state, the local units of government to spend years 
embroiled in the time and the expense and uncertainty, most 
importantly, the uncertainty that is associated with 
litigation.
    I am a litigator. I earn my living from litigating cases on 
behalf of tribes, but the last thing that the tribes in this 
country should have to do is to pay lawyers like me, firms like 
mine, in order to litigate the basic fundamental question as to 
whether all tribes are entitled to the foundational protections 
of the Indian Reorganization Act.
    The Attorney General well stated the principle that, you 
know, you shouldn't act in a way that does more harm than good, 
but it does no harm for this Congress to in a very 
straightforward manner that is reflected in the pending bills 
just reaffirm the foundational principle that all recognized 
tribes stand on an equal footing in this country and are 
entitled to the same basic protections of the laws other tribes 
are.
    As the Attorney General well knows and this Committee well 
knows, the Supreme Court, as in the context of the sovereign 
states, announced as a fundamental principle over the years 
that the equal footing doctrine ensures that all the sovereign 
states stand on an equal footing regardless of the date of 
their admission into the Union.
    And essentially the bills, the bill that you have sponsored 
and the bill that Representative Cole has sponsored, 
essentially embody that same equal footing principle. And, yes, 
in response to your question, I believe they do so both 
retroactively and prospectively.
    Mr. Kildee. I will say that the Attorney General and 
Secretary Salazar himself have gone over a letter to me 
supporting exactly this legislation--word for word--and feel 
that it is properly drafted. You are a litigator, and I want to 
ask you, do you want a long letter or a short letter from this 
Committee then since the Attorney General has indicated.
    This has been a very good hearing. This is a subject that 
is very dear to this Committee's heart. We are in effect the 
``Indian Committee'' in the Congress. We don't have an Indian 
committee as such, nor even an Indian subcommittee, but the 
full Committee on Natural Resources is the Indian Committee. So 
we have part of that trust responsibility too. We want to be 
fair to everyone. We legislate for the citizens of the tribes, 
legislate for all citizens of the United States, and we want to 
be fair and abide by the Constitution, abide by the treaties.
    The Constitution also tells us this treaty or this 
Constitution and all treaties entered therein shall be the 
supreme law of the land. John Marshall indicated that includes 
Indian treaties. The Indian treaties are the supreme law of the 
land. Andrew Jackson did not quite believe that and pushed 
people to Oklahoma, many of them. But I do believe it, and as 
long as I am Chairman, I am going to make sure that we 
recognize that the treaties are the supreme law of the land. 
And those post actions recognized in sovereignty have also 
always been upheld by the Congress and by the courts.
    So I appreciate all of you. All of you have been very good. 
All of you have been straightforward with the Committee, and 
all of you have spoken from your heads and your hearts, and 
both are important. We want justice. All of us I think are 
seekers after justice, and we hope this Committee can move us 
toward that justice.
    And unless you have any further statements, we will stand 
adjourned. And there is another hearing in this room after we 
adjourn, so we will, as I say, send in questions in writing. We 
will stand adjourned.
    [Whereupon, at 1:15 p.m., the Committee was adjourned.]

                                 
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