[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
                  H.R. 1291, H.R. 1234 AND H.R. 1421 

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

                          LEGISLATIVE HEARING

                               before the

                       SUBCOMMITTEE ON INDIAN AND
                         ALASKA NATIVE AFFAIRS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, July 12, 2011

                               __________

                           Serial No. 112-48

                               __________

       Printed for the use of the Committee on Natural Resources



         Available via the World Wide Web: http://www.fdsys.gov
                                   or
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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

            SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS

                        DON YOUNG, AK, Chairman
                 DAN BOREN, OK, Ranking Democrat Member

Tom McClintock, CA                   Dale E. Kildee, MI
Jeff Denham, CA                      Eni F.H. Faleomavaega, AS
Dan Benishek, MI                     Ben Ray Lujan, NM
Paul A. Gosar, AZ                    Colleen W. Hanabusa, HI
Raul R. Labrador, ID                 Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio

                                 ------                                
      



























                                CONTENTS

                                ----------                              
                                                                   Page

Hearing held on Tuesday, July 12, 2011...........................     1

Statement of Members:
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................     3
        Prepared statement of....................................     5
    Lujan, Hon. Ben Ray, a Representative in Congress from the 
      State of New Mexico, Prepared statement of.................    82
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts.....................................     9
        Prepared statement of....................................    10
    Young, Hon. Don, the Representative in Congress for the State 
      of Alaska..................................................     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Adams, Supervisor Susan, President, Marin County Board of 
      Supervisors, on behalf of the National Association of 
      Counties and California State Association of Counties, San 
      Rafael, California.........................................    57
        Prepared statement on H.R. 1291 & H.R. 1234..............    58
        CSAC Congressional Position Paper on Indian Affairs......    64
        Resolution Opposing the Congressional Reversal of 
          Carcieri v. Salazar....................................    66
    Barbry, Hon. Earl J., Sr., Chairman, Tunica-Biloxi Tribe of 
      Louisiana, Marksville, Louisiana...........................    17
        Prepared statement on H.R. 1291 & H.R. 1234..............    19
    Cole, Hon. Tom, a Representative in Congress from the State 
      of Oklahoma................................................     6
        Prepared statement on H.R. 1291..........................     8
    Cromwell, Hon. Cedric, Chairman, Mashpee Wampanoag Tribe, 
      Mashpee, Massachusetts.....................................    23
        Prepared statement on H.R. 1291 & H.R. 1234..............    25
    Laverdure, Donald ``Del,'' Principal Deputy Assistant 
      Secretary for Indian Affairs, U.S. Department of the 
      Interior, Washington, D.C..................................    12
        Prepared statement on H.R. 1291 & H.R. 1234..............    14
    Mitchell, Donald Craig, Attorney at Law, Anchorage, Alaska...    49
        Prepared statement on H.R. 1291 & H.R. 1234..............    51
    Schmit, Cheryl A., Director, Stand Up For California, Penryn, 
      California.................................................    67
        Prepared statement on H.R. 1291 & H.R. 1234..............    68
        Correction to July 12 prepared statement.................    71
    Skibine, Alexander Tallchief, S.J. Quinney Professor of Law, 
      The University of Utah, Salt Lake City, Utah...............    41
        Prepared statement on H.R. 1291 & H.R. 1234..............    43
    Swimmer, Ross O., Former Principal Chief, Cherokee Nation, 
      Tahlequah, Oklahoma........................................    28
        Prepared statement on H.R. 1421..........................    29

Additional materials supplied:
    List of documents retained in the Committee's official files.    83
                                     



LEGISLATIVE HEARING ON H.R. 1291, 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 FOR OTHER PURPOSES; H.R. 1234, 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. 1421, TO AMEND THE WATER RESOURCES DEVELOPMENT ACT OF 1986 TO 
CLARIFY THE ROLE OF THE CHEROKEE NATION OF OKLAHOMA WITH REGARD TO THE 
         MAINTENANCE OF THE W.D. MAYO LOCK AND DAM IN OKLAHOMA.

                              ----------                              


                         Tuesday, July 12, 2011

                     U.S. House of Representatives

            Subcommittee on Indian and Alaska Native Affairs

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 11:04 a.m. in 
Room 1324, Longworth House Office Building, The Honorable Don 
Young [Chairman of the Subcommittee] presiding.
    Present: Representatives Young, Denham, Benishek, Boren, 
Kildee, Lujan, Hanabusa, and Markey [ex officio].
    Also Present: Faleomavaega, and Pallone.
    Mr. Young. The Committee will come to order now that Mr. 
Boren is here. The Subcommittee will come to order. The Chair 
notes the presence of a quorum.
    The Subcommittee on Indian and Alaska Native Affairs is 
meeting today to hear testimony on two bills to overturn the 
Supreme Court holding in Carcieri v. Salazar, thereby 
designating authority to the Secretary of the Interior to 
acquire lands in trust for a tribe recognized at anytime.
    One bill sponsored by the Ranking Member, Mr. Boren, will 
facilitate the development of hydro projects of the Cherokee 
Nation.
    Under Committee Rule 4[f], opening statements are limited 
to the Chairman and the Ranking Member of the Subcommittee so 
they can hear from the witnesses more quickly. However, I ask 
unanimous consent to include any other Members' opening 
statements in the hearing record to be submitted to the clerk 
by the close of business today. Hearing no objection, so 
ordered.
    I also ask unanimous consent that the gentleman from New 
Jersey, Mr. Pallone, be allowed to join us on the dais and 
participate in the hearing. Without objection, so ordered.

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF ALASKA

    Mr. Young. Today the Subcommittee will study the 
legislation to reverse Carcieri v. Salazar. By now most Members 
should be familiar with the Supreme Court ruling in Carcieri, 
which is that the Secretary has no authority under Section 5 of 
the Indian Reorganization Act to acquire lands for tribes not 
recognized and under jurisdiction on June 18, 1934. This ruling 
came as a surprise to many of us who have worked with tribal 
issues for years.
    The Subcommittee will also receive testimony, as I 
mentioned, from Mr. Boren on his bill, H.R. 1421. The bill 
concerns Cherokee Nation development of hydroelectric 
facilities on the lock and dam project in the historic Cherokee 
lands. I will defer to Mr. Boren on the right time to complete 
the description of his bill and its need. Fortunately, what I 
know about the legislation if we can get it out of T&I, it 
should pass as good legislation.
    Let us now discuss H.R. 1291 and H.R. 1234. These bills 
overturn the effects of the Supreme Court decision by 
delegating authorities of the Secretary of the Interior to 
acquire lands in trust for tribes recognized at anytime. The 
bills also ratify and confirm lands that have been put in trust 
prior to the Supreme Court holding in February 2009. This 
eliminates the confusion over the status of countless tracts of 
trust lands, protects existing development on these lands in 
which tribes have invested large sums, and ends the number of 
costly legal challenges to the authority of the Department to 
continue holding land in trust for the benefit of tribes.
    Passage of this legislation is critical for recognizing 
tribes to build a land base which will spur economic 
development, housing, and education. I have seen few other 
issues that have brought tribes from all regions of the country 
together to press for legislation.
    The Committee must recognize, however, that the states, 
counties, and non-Indian people may have different views on the 
merits of this legislation. It is necessary to ensure their 
views are considered. Accordingly, the witness list contains a 
range of viewpoints. The witness list also includes two 
authorities on the history of Indian law and the development of 
the Indian Reorganization Act.
    One final note, the bills are similar enough with one 
difference. H.R. 1234 is a simple reversal of the Supreme Court 
ruling while H.R. 1291 includes a provision to affirm 
congressional policies that lands may not be acquired in trust 
in the State of Alaska. As set forth in Section 2[b] of the 
Alaska Native Claims Settlement Act of 1971, congressional 
policy for the settlement of all native land claims in Alaska 
would be achieved without creating a reservation system or a 
lengthy wardship or trusteeship, and that is exactly what the 
Alaska Claims Settlement Act does, although some people may 
disagree with me, that is the law. H.R. 1291 simply clarifies 
this policy as this is an issue the Department of the Interior 
has no business determining itself.
    I look forward to hearing from the witnesses, and now I 
recognize the good friend from Oklahoma, Mr. Boren, for any 
statement you may have.
    [The prepared statement of Mr. Young follows:]

Statement of The Honorable Don Young, Chairman, Subcommittee on Indian 
   and Alaska Native Affairs, on H.R. 1291, H.R. 1234, and H.R. 1421

    Today the Subcommittee will study legislation to reverse Carcieri 
v. Salazar. By now, most Members should be familiar with the Supreme 
Court ruling in Carcieri, which is that the Secretary has no authority 
under Section 5 of the Indian Reorganization Act to acquire lands for 
tribes not recognized and under jurisdiction on June 18, 1934. This 
ruling came as a surprise to many of us who have worked on tribal 
issues for years.
    The Subcommittee will also receive testimony on H.R. 1421, a bill 
sponsored by the Ranking Democratic Member, Mr. Boren. The bill 
concerns Cherokee Nation development of hydroelectric facilities on a 
lock and dam project on historic Cherokee lands. I will defer to Mr. 
Boren for a complete description of his bill and its need. Fortunately, 
based on what I know about it, it is a fine piece of legislation and I 
would hope it can be passed quickly in the House.
    Let me now discuss H.R. 1291 and H.R. 1234. These bills overturn 
the effects of the Supreme Court decision by delegating authority to 
the Secretary of the Interior to acquire lands in trust for a tribe 
recognized at any time. The bills also ratify and confirm lands that 
had been put in trust prior to the Supreme Court holding in February 
2009. This eliminates confusion over the status of countless tracts of 
trust lands, protects existing development on these lands in which 
tribes have invested large sums, and ends a number of costly legal 
challenges to the authority of the Department to continue holding land 
in trust for the benefit of tribes.
    Passage of this legislation is critical for recognized tribes to 
build a land base, which will spur economic development, housing, 
education. I have seen few other issues that have brought tribes from 
all regions of the country together to press for legislation.
    The Committee must recognize, however, that States, counties, and 
non-Indian people may have different views on the merits of this 
legislation, and it is necessary to ensure their views are considered. 
Accordingly, the witness list contains a range of viewpoints. The 
witness list includes also includes two authorities on the history of 
Indian law and the development of the Indian Reorganization Act.
    One final note. The bills are similar in effect, with one 
difference: H.R. 1234 is a simple reversal of the Supreme Court, while 
H.R. 1291 includes a provision to affirm congressional policy that 
lands may not be acquired in trust in the State of Alaska. As set forth 
in section 2(b) of the Alaska Native Claims Settlement Act of 1971, 
congressional policy for the settlement of all Native claims in Alaska 
would be done [quote] ``without creating a reservation system or 
lengthy wardship or trusteeship. . .'' [end quote].
    H.R. 1291 simply clarifies this policy as this is an issue the 
Department of the Interior has no business determining itself.
                                 ______
                                 

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

    Mr. Boren. Thank you, Mr. Chairman. I would like to start 
by thanking our witnesses who have joined us here today to 
share their knowledge and expertise on some very important 
pieces of legislation.
    H.R. 1421 would amend the Water Resources Act of 1986 to 
clarify the role of the Cherokee Nation of Oklahoma with regard 
to the maintenance of the W.D. Mayo Lock and Dam in Oklahoma.
    In 1986, the Cherokee Nation was authorized to build a 
hydroelectric facility at the W.D. Mayo Lock and Dam. The 
authorizing legislation required the U.S. Army Corps of 
Engineers to compensate the Cherokee Nation for the project and 
take control of the facility. H.R. 1421 eliminates the Corps of 
Engineers' obligation.
    This bill supported by both the Corps of Engineers and the 
Cherokee Nation will save the Federal Government money, provide 
much-needed jobs for those living in the surrounding area, and 
create a renewable energy resource. It is a straightforward, 
noncontroversial piece of legislation that will lessen the 
responsibility and involvement of the Federal Government while 
ensuring the resources remain in good hands.
    Today the Subcommittee will also consider two bills that 
address one of Indian Country's highest priorities in the 112th 
Congress, providing a legislative fix to the Carcieri v. 
Salazar decision. For the 75 years prior to 2009, the 
Department of the Interior under the authority under the Indian 
Reorganization Act, or IRA, place land into trusts for any 
tribe as long as it was Federally recognized at the time of the 
trust's application.
    In 2009, the Supreme Court held that the Secretary's 
authority did not extend to tribes that were not ``under 
Federal jurisdiction'' as of 1934, thereby excluding many 
tribes across the country from taking land into trust.
    I believe that the Carcieri case was wrongly decided and 
the legislation to restore the status quo prior to the Carcieri 
decision should be swiftly enacted. Since the Supreme Court's 
decision, both the Senate and House have held hearings on the 
impacts on Indian tribes and the need for a legislative fix. 
Indian Country, through tribal organizations, including NCAI, 
have mounted a vocal congressional campaign urging Members to 
enact legislation to correct this mistake.
    During this Congress, my colleagues, Mr. Cole and Mr. 
Kildee, introduced bills which are designed to provide clarity 
and certainty to the land in the trust process. Both 
Congressmen have impressive and long histories of working 
diligently on behalf of tribes across this country. I applaud 
both Mr. Cole and Mr. Kildee for introducing their bills, and I 
am proud to be a co-sponsor of both of them.
    To be sure, I have high hopes that we can move a Carcieri 
fix forward in the near term. However, I do have questions 
about the differences between the two bills. Section 1[a] of 
H.R. 1291 would prohibit the Secretary of the Interior from 
taking land into trusts in Alaska, a provision that is not 
contained in H.R. 1234. I am concerned that including such 
language might detract from the primary focus of the bill, 
which is to simply restore the pre-Carcieri status quo.
    H.R. 1291 also does not include a ratification clause. This 
clause would provide clear authority that land taken into trust 
by the Secretary for any tribe that was recognized in 1934 is 
ratified and confirmed as if Congress had specifically 
authorized that action.
    H.R. 1234 includes a ratification clause along with a 
provision ensuring the legislation would affect only the IRA. 
Further, H.R. 1234 would not limit the authority of the 
Secretary of the Interior under any Federal law or regulation 
other than the IRA.
    I look forward to hearing more about these noteworthy 
differences in today's hearing, and again I am a cosponsor of 
both bills. I think I would support either one, but I think we 
need to look into these differences.
    In conclusion, prohibiting certain tribes to take land into 
trust goes against our treaty obligation and fiduciary trust 
responsibility as a nation that violently expelled our trial 
neighbors from their aboriginal territories. Ensuring that 
tribes have access to land that they call home is essential to 
tribal self-determination and self-governance. I wholeheartedly 
support Secretary Salazar's statement in reaffirming his 
support for a legislative fix that: ``Homelands are essential 
to the health, safety, and welfare of the first Americans.''
    I yield back.
    [The prepared statement of Mr. Boren follows:]

 Statement of The Honorable Dan Boren, Ranking Member, Subcommittee on 
      Indian and Alaska Native Affairs, on H.R. 1234 and H.R. 1291

    Thank you Mr. Chairman. I would like to start by thanking our 
witnesses who join us here today to share their knowledge and expertise 
on some very important pieces of legislation.
    H.R. 1421 would amend the Water Resources Act of 1986 to clarify 
the role of the Cherokee Nation of Oklahoma with regard to the 
maintenance of the W.D. Mayo Lock and Dam in Oklahoma. In 1986, the 
Cherokee Nation was authorized to build a hydroelectric facility at the 
W.D. Mayo Lock and Dam. The authorizing legislation required the U.S. 
Army Corps of Engineers to compensate the Cherokee Nation for the 
project and take control of the facility. H.R. 1421 eliminates the 
Corps of Engineers obligation. This bill, supported by both the Corps 
of Engineers and the Cherokee Nation, will save the federal government 
money, provide much-needed jobs for those living in the surrounding 
area and create a renewable energy source. It is a straightforward, 
noncontroversial piece of legislation that will lessen the 
responsibility and involvement of the Federal Government while ensuring 
the resources remain in good hands.
    Today the Subcommittee will also consider two bills that address 
one of Indian Country's highest priorities in the 112th Congress--
providing a legislative fix to the Carcieri [CARCHERRY] v. Salazar 
decision. For the 75 years prior to 2009, the Department of the 
Interior under the authority under the Indian Reorganization Act (IRA) 
placed land into trust for any tribe as long as it was federally 
recognized at the time of the trust application. In 2009 the Supreme 
Court held that the Secretary's authority did not extend to tribes that 
were not ``under federal jurisdiction'' as of 1934, thereby excluding 
many tribes across the country from taking land into trust.
    I believe the Carcieri case was wrongly decided and that 
legislation to restore the status quo prior to the Carcieri decision 
should be swiftly enacted.
    Since the Court's decision, both the Senate and the House have held 
hearings on the impacts on Indian tribes and the need for a legislative 
fix. Indian Country, through tribal organizations including the 
National Congress of American Indians, has mounted a vocal 
congressional campaign urging members to enact legislation correcting 
the decision. During this Congress, my colleagues Mr. Cole and Mr. 
Kildee introduced bills which are designed to provide clarity and 
certainty to the land into trust process. Both Congressmen have 
impressive and long histories of working diligently on behalf of tribes 
across the country. I applaud both Mr. Cole and Mr. Kildee for 
introducing their bills, and I am a proud supporter and cosponsor of 
both H.R 1291 and H.R. 1234. To be sure, I have high hopes that we can 
move a Carcieri fix forward in the near term.
    However, I do have questions about the differences between the two 
bills. Section 1(a) of H.R. 1291 would prohibit the Secretary of the 
Interior from taking land into trust in Alaska, a provision that is not 
contained in H.R. 1234. I am concerned that including such language 
would detract from the primary focus of the bill, which is simply to 
restore the pre-Carcieri status quo. H.R. 1291 also does not include a 
ratification clause. This clause would provide clear authority that 
land taken into trust by the Secretary for any tribe that was 
recognized in 1934 is ratified and confirmed as if Congress had 
specifically authorized that action. H.R. 1234 includes a ratification 
clause along with a provision ensuring the legislation would affect 
only the IRA. Further, H.R. 1234 would not limit the authority of the 
Secretary of the Interior under any federal law or regulation other 
than the IRA. I look forward to learning more about these noteworthy 
differences in today's hearing.
    In conclusion, prohibiting certain tribes to take land into trust 
goes against our treaty obligations and fiduciary trust responsibility 
as a nation that violently expelled our tribal neighbors from their 
aboriginal territories. Ensuring that tribes have access to land that 
they can call home is essential to tribal self-determination and self-
governance. I wholeheartedly support Secretary Salazar's statement, in 
reaffirming his support for a legislative fix, that: ``Homelands are 
essential to the health, safety, and welfare of the First Americans.''
                                 ______
                                 
    Mr. Young. I thank the gentleman. I am glad you are a 
sponsor of both bills, especially H.R. 1291.
    [Laughter.]
    Mr. Young. At this time we have a panel, but first I would 
like to welcome Mr. Cole, the Congressman from Oklahoma who has 
been a leader on this issue for many, many years and we would 
like to hear from him first, and then we will go to the panel 
if you would like to stay for questions, Mr. Cole. Congressman, 
you are up.

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

    Mr. Cole. Thank you very much, Mr. Chairman, and thank you 
members of the distinguished panel. I appreciate you holding 
the hearing and I certainly thank you for allowing me to make a 
statement on the legislation that I introduced.
    The Supreme Court in 2009 turned the entire notion of 
tribal sovereignty on its head. By taking land into trust for 
the use of tribes, the Federal Government preempts state 
regulation and jurisdiction, allowing tribes as sovereign 
governments to deal directly with the United States on a 
government-to-government basis.
    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 the law was enacted in 1934.
    This decision effectively creates two classes of Indian 
tribes: those that can have land in trust and those that 
cannot. Many tribes in existence in that year were wary of the 
Federal Government and for good reason. Inclusion in that 
legislation bears no relationship to whether a tribe existed at 
this time or not. This two-class system is unacceptable and it 
is unconscionable for Congress not to act to correct the law as 
the Supreme Court interpreted it in the Carcieri decision.
    Mr. Chairman, the Carcieri decision overturns over 70 years 
of precedent and puts billions of dollars worth of trust land 
in legal limbo. Without a legislative fix, more billions of 
dollars and decades will be spent on litigation and disputes 
between tribes and state and local governments. My legislation 
would restore a system that has worked since 1934, and prevent 
costly and time-consuming disputes.
    You may hear many things about what having land into trusts 
leads to. You may hear that all of this is about gaming. The 
truth is of the nearly 2,000 requests for the Secretary to take 
land into trust over 95 percent of those requests are for non-
gaming purposes. Tribes are governments and conduct inherently 
governmental functions and need land to do so.
    In the case of the Narragansett Tribe, which was a party to 
the Carcieri decision, they were seeking land into trust for 
housing. This legislation does not grant tribes new rights but 
just restores the system that functioned since 1934, allowing 
tribes to provide governmental services.
    You may also hear that a Carcieri fix will allow tribes to 
take vast swaths of land into trust without regard to zoning or 
environmental regulations. It is true that local land use 
ordinance are not enforceable on trust land just as any other 
piece of Federal property. This does not mean that tribes will 
have a free range to build on or excavate land in the trust. 
Complex systems and environmental review as well as the 
secretarial approval for new construction or leasing make land 
regulations on trust land, if anything, more restrictive than 
in most, if not all, local ordinances.
    You may also hear that trust land is undercutting the 
state's tax base. Like any Federal land, trust land is not 
subject to state taxation. Neither is land housing military 
bases, national parks and national forests just to name a few. 
That is no reason to oppose this bill. Federal programs such as 
Impact Aid and Payment in Lieu of Taxes address the shortfalls.
    You may also hear that tribes are not subject to the 1934 
Act, or that you may hear that tribes not subject to the 1934 
Act are ``not real tribes'', but are new groups of people 
seeking recognition in order to receive Federal benefit. The 
truth is 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 in a trust. Many tribes recognized post-1934 have 
treaties that predate the existence of the United States. The 
Narragansett Tribe with treaties with the colony of Rhode 
Island is an example. To claim that they did not exist prior to 
1934 is simply preposterous.
    Mr. Chairman, if Congress fails to act the standards set 
forth in the Carcieri v. Salazar decision will be devastating 
to tribal sovereignty and economic development. Resolving any 
ambiguity in the Indian Reorganization Act is vital to 
protecting tribal interests and avoiding costly and protracted 
litigation.
    That concludes my statement, but if I may just quickly 
address a couple of the points that Mr. Boren raised, 
particularly with respect to Alaska.
    I added that provision, frankly, because I respected the 
Chairman's concerns and I wanted to be absolutely clear in that 
area. In the other areas actually Mr. Kildee and I have worked 
well together. We cosponsored one another's legislation in the 
last Congress. I am more than happy to continue to work with 
him. He has just done a terrific job on this issue as he does 
on all Native American issues. So if we can find common ground 
and move ahead that is fine by me. We have done that on many 
occasions.
    So, with that I again thank you, Mr. Chairman, thank the 
Committee for its indulgence.
    [The prepared statement of Mr. Cole follows:]

Statement of The Honorable Tom Cole, a Representative in Congress from 
                  the State of Oklahoma, on H.R. 1291

    Mr. Chairman, thank you for holding this hearing and thank you for 
allowing me to make a statement on this legislation that I introduced.
    The Supreme Court in 2009 turned the entire notion of tribal 
sovereignty on its head. By taking land into trust for the use of 
tribes, the federal government preempts state regulation and 
jurisdiction allowing tribes as sovereign governments to deal directly 
with the United States on a government to government basis.
    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 decision creates two classes of 
Indian Tribes: those that can have land in trust and those that cannot. 
Many tribes in existence in that year were wary of the federal 
government, and for good reason. Inclusion in that legislation bears no 
relation on whether a tribe existed at that time or not. This two-class 
system is unacceptable and it is unconscionable for Congress not to act 
to correct the law as the Supreme Court interpreted it in the Carcieri 
decision.
    Mr. Chairman, the Carcieri decision overturns over 70 years of 
precedent and puts billions of dollars worth of trust land in legal 
limbo. Without a legislative fix, more billions of dollars and decades 
will be spent on litigation and disputes between Tribes and state and 
local governments. My legislation would restore a system that has 
worked since 1934 and prevent costly and time consuming disputes.
    You may hear many things about what having land into trust leads 
to. You may hear that this is all about gaming. The truth is that, of 
the nearly current 2000 requests for the Secretary to take land into 
trust over 95% of those requests are for non-gaming purposes. Tribes 
are governments and conduct inherently government functions, and need 
land to do so. In the case of the Narragansett tribe which was a party 
to the Carcieri decision, they were seeking land into trust for 
housing. This legislation does not grant tribes new rights, but just 
restores the system that functioned since 1934 allowing tribes to 
provide government services.
    You also may hear that a Carcieri fix will allow tribes to take 
vast swaths of land into trust without regard to zoning or 
environmental regulations. It is true that local land use ordinances 
are not enforceable on trust land, just as with any other piece of 
federal property. This does not mean that tribes will have free range 
to build on or excavate land into trust. Complex systems of 
environmental review as well as secretarial approval for new 
construction or leasing make land use regulations on trust land more 
restrictive than most if not all local ordinances.
    You also may hear that trust land is undercutting states' tax base. 
Like any federal land, trust land is not subject to state taxation; 
neither is land housing military bases, national parks and national 
forests just to name a few. This is no reason to oppose this bill. 
Federal programs such as Impact Aid and Payment in Lieu of Taxes (PILT) 
address these shortfalls.
    You also may hear that tribes not subject to the 1934 act are not 
real tribes, but are new groups of people seeking recognition in order 
to receive federal benefits. The truth is 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. Many tribes recognized post-1934 have 
treaties that pre-date the existence of the United States. The 
Narragansett Tribe has treaties with the colony of Rhode Island. To 
claim they did not exist prior to 1934 is preposterous.
    Mr. Chairman, if Congress fails to act, the standard set forth in 
Carcieri v. Salazar will be devastating to tribal sovereignty and 
economic development. Resolving any ambiguity in the Indian 
Reorganization Act is vital to protecting tribal interests and avoiding 
costly and protracted litigation.
                                 ______
                                 
    Mr. Young. Thank you, Mr. Cole. You know my interest in 
passing this legislation through, and for those that say we 
have to have a clean bill, well, as far as I am concerned your 
bill is a clean bill in all due respects to Mr. Kildee, because 
I am going back to the law of the Alaska Native Land Claims Act 
which is to me supersedes the 1934 Act, and that is very 
crucial because there are those outside interests that would 
try to destroy the idea of the corporation and go back under 
reservation system on those corporate lands, and then we have 
split ownership of lands, and I hope everybody understands 
this. We have service land ownership and we have sub-service 
ownership of lands, and so this is a conflict issue. It is not 
one that I like to take on, but I will because I think a very 
successful act of 1971 called the Alaska Native Land Claims 
Act.
    I think you are absolutely right, Mr. Cole, in your 
position about the uncertainty. I believe at that time the 
existing Alaska lands language did not interfere until the 
Carcieri v. Salazar decision by the Supreme Court, and I do 
think we have to remedy that for all the tribes that request it 
and for the states that are involved.
    I would like to say one thing. Your comment about those 
that say, well, there is going to be a loss of tax base for the 
counties, et cetera. I don't know how many Congressmen, you 
know, when we had earmarks tried to get Federal buildings built 
in their district, Federal office buildings that pay no taxes, 
of which I never understood, but they did. Parks, they don't 
pay any taxes. I can go on down the line, and that does hurt 
the communities, too, so this should not be part of this 
argument. These are native lands, lands that has to be 
acquired. In fact, be under trust so that they can have an 
economic base.
    So, we will work to try to move this bill, I think, as 
rapidly as possible. With that, do you have any questions?
    Mr. Markey, after your comments yesterday about the new 
modern technology, about energy is going to be--we don't need 
fossil, I will still recognize you.
    [Laughter.]

    STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF MASSACHUSETTS

    Mr. Markey. Welcome to one of the longest standing skips in 
history. We are 35 years into this.
    Thank you, Mr. Chairman, very much. Thank you for 
recognizing me, and I would like to welcome all of our 
witnesses today, especially Mashpee Wampanoag Tribal Chairman 
Cromwell, for being here. His people have been in Massachusetts 
for 12,000 years, and we appreciate his willingness to be here 
today. The Mashpee people have shown great resiliency in the 
face of extreme hardship since first contact in the 1600s, and 
I look forward to hearing how the Carcieri decision has 
impacted the Tribe's quest to provide a tribal homeland for its 
people.
    I might want to point out that the he has informed me that 
his tribe is currently seeking land into trust to establish 
housing for members who lack means to purchase housing in 
Mashpee.
    The Supreme Court's Carcieri decision has created 
significant uncertainty for tribes trying to restore their 
tribal homelands. This uncertainty stems from the fact that the 
Supreme Court has essentially created two different classes of 
tribes: those who are under Federal jurisdiction as of 1934, 
and those who were not. This has led to meritless challenges in 
courts across the country, unnecessarily pitting tribes against 
their Indian and non-Indian Neighbors.
    Treaty tribes, executive order tribes, Federal 
acknowledgement tribes, and congressionally recognized tribes 
have all been hauled into court to defend their status so they 
can get the homeland back that was stolen from them centuries 
before. It is our responsibility as a country to make this 
right. This two-class system goes against not only executive 
policy but it is contrary to current law that prohibits Federal 
agencies from distinguishing between tribes based on how or 
when a tribe was Federally recognized. Our country turned its 
back on policies that created second class citizens like the 
Jim Crow laws of the South a long time ago. We must not return 
to those days.
    The Court majority, led by Justice Thomas, effectively 
ruled otherwise, I believe that establishing second class 
Indian tribes like second class citizenship has no place in our 
society. The major goal of any legislative fix to the Carcieri 
decision is to simply and cleanly reinstate the Secretary's 
statutory authority to take land into trusts for Indian tribes 
regardless of when they were Federally recognized, nothing more 
and nothing less.
    Last Congress the House moved a clean fix unanimously out 
of the Interior Appropriations Subcommittee and included it in 
the continuing resolution that passed the House in December of 
2010. I voted for that measure, and so did many of my 
colleagues on the Natural Resources Committee on both sides of 
the aisle, and the Administration this year included the very 
same language reflected in Mr. Kildee's bill in his proposed 
Fiscal Year 2010 budget. Language unrelated to correcting the 
Carcieri decision is unwelcome in remedial legislation. Last 
year's effort to pass a Carcieri fix failed in large part 
because of attempts to add other extraneous provisions to the 
legislation.
    Let me be clear. The Carcieri legislative fix is not about 
off-reservation gaming or any other issues affecting Indian 
Country. This bill is about getting tribes land on the high 
plains, not attracting more high rollers to blackjack tables. 
The majority of land into trust applications are not for gaming 
purposes. They are for housing, health care clinics, and Indian 
schools, and state and local governments have a voice in the 
land and to trust process.
    The Department's comprehensive regulations contain 
extensive procedures to guarantee that all interested parties 
consulted before land is taken into trust. Groups opposed to 
land into trust are that advocate for refining the land into 
trust process should look elsewhere for traction. If any 
changes are to be made in the land into trust process, it 
should not be through the Carcieri fix legislation.
    So, let us pass a clean fix to this judicially-created 
problem related to a centuries-old injustice and stop playing 
politics with tribes' ancestral homes.
    I thank you, Mr. Chairman, and I yield back the balance of 
my time.
    [The prepared statement of Mr. Markey follows:]

Statement of The Honorable Edward J. Markey, Ranking Member, Committee 
            on Natural Resources, on H.R. 1291 and H.R. 1234

    Thank you, Mr. Chairman. I'd like to welcome all our witnesses 
today, especially Mashpee Wampanoag Tribal Chairman Cromwell, whose 
people once occupied present day Provincetown, Massachusetts. The 
Mashpee people have shown great resiliency in the face of extreme 
hardship since first contact in the 1600s, and I look forward to 
hearing how the Carcieri decision has impacted the Tribe's quest to 
provide a tribal homeland for its people.
    The Supreme Court's Carcieri decision has created significant 
uncertainty for tribes trying to restore their tribal homelands. This 
uncertainty stems from the fact that the Supreme Court has essentially 
created two different classes of tribes--those who were ``under federal 
jurisdiction'' as of 1934 and those who were not.
    This has led to meritless challenges in courts across the country, 
unnecessarily pitting tribes against their Indian and non-Indian 
neighbors.
    Treaty tribes, Executive Order tribes, Federal Acknowledgement 
tribes, and congressionally recognized tribes have all been hauled into 
court to defend their status so they can get the homeland back that was 
stolen from them centuries before. It is our responsibility as a 
country to make this right.
    This two-class system goes against not only executive policy, but 
is contrary to current law that prohibits federal agencies from 
distinguishing between tribes based on how or when a tribe was 
federally recognized. Our country turned its back on policies that 
created second class citizens, like the Jim Crow laws of the South, a 
long time ago. We must not return to those days. While the Court 
majority, led by Justice Thomas, effectively ruled otherwise, I believe 
that establishing second-class Indian tribes, like second-class 
citizenship, has no place in our society.
    The major goal of any legislative fix to the Carcieri decision is 
to simply, and cleanly, reinstate the Secretary's statutory authority 
to take land into trust for Indian tribes, regardless of when they were 
federally recognized. Nothing more, nothing less.
    Last Congress, the House moved a ``clean'' fix unanimously out of 
the Interior Appropriations Subcommittee, and included it in the 
continuing resolution that passed the House in December 2010. I voted 
for that measure and so did many of my colleagues on the Natural 
Resources Committee--on both sides of the aisle. And the Administration 
this year included the very same language reflected in Mr. Kildee's 
bill in its proposed FY 2012 budget.
    Language unrelated to correcting the Carcieri decision is unwelcome 
in any remedial legislation. Last year's effort to pass a Carcieri fix 
failed in large part because of attempts to add other extraneous 
provisions to the legislation.
    Let me be clear: the Carcieri legislative fix is not about off-
reservation gaming or any other issue affecting Indian Country. This 
bill is about getting tribes land on the high plains, not attracting 
more high rollers to blackjack tables.
    The majority of land into trust applications are not for gaming 
purposes--they are for housing, health care clinics and Indian schools. 
And state and local governments have a voice in the land into trust 
process--the Department's comprehensive regulations contain extensive 
procedures that guarantee that all interested parties are consulted 
before land is taken into trust.
    Groups opposed to land into trust or that advocate for refining the 
land into trust process should look elsewhere for traction. If any 
changes are to be made in the land into trust process, it is not 
through Carcieri fix legislation.
    Let's pass a clean fix to this judicially-created problem related 
to a centuries-old injustice, and stop playing politics with tribes' 
ancestral homelands.
                                 ______
                                 
    Mr. Young. I do apologize to the rest of you. I said no 
other opening statements. I thought he was going to ask a 
question, but you did an opening statement. OK, good enough, 
but you know we are not doing it, just the Ranking Member and 
the Chairman. All right.
    Now at this time that Mr. Cole is gone we would like to 
introduce the first panel. We have Deputy Assistant Secretary 
Del Laverdure; Chairman Earl Barbry, Tunica-Biloxi Tribe of 
Louisiana; Chairman Cedric Cromwell of the Mashpee Wampanoag 
Tribe of Massachusetts; and Ross Swimmer, the former Principal 
Chief of the Cherokee Nation who will testify on H.R. 1421 
only.
    I recognize the Ranking Member to introduce Mr. Swimmer at 
this time.
    Mr. Boren. Thank you, Mr. Chairman. I want to thank my good 
friend Ross Swimmer for being here. Ross Swimmer has played an 
integral role in the Cherokee Nation throughout his lifetime as 
a member of the Cherokee Nation of Oklahoma. Mr. Swimmer was 
Principal Chief for three successive terms from 1975 until 
1985. Since leaving his post as Principal Chief, Mr. Swimmer 
has served as Assistant Secretary of Indian Affairs with the 
BIA, and in 2001, he was appointed by Administration to be the 
Director of the Office of Indian Trust Transition, working on 
issues that remain relevant to this Subcommittee such as the 
Carcieri case. Mr. Swimmer joins us today in his capacity as 
Tribal Relations Officer for the Cherokee Nation and a champion 
for H.R. 1421, which I can tell you he has been dogged on this 
issue and working with our office, our staff, and so this is a 
day that we are all celebrating that we are at this point, and 
Ross is a great friend and a great Oklahoman. Thank you.
    Mr. Young. Thank you. I think most of you know the rules 
about the five minutes, push your button on your microphone, 
you can read. When the orange starts slowing down or start 
speeding up, try to finish up as soon as you can, and at that 
time when we finish the total panel we will have a series of 
questions from the congressional side of this aisle and we will 
see what happens as we go down the line.
    So the very first witnesses we have, Mr. Del Laverdure, the 
Assistant Secretary. You are up.

    STATEMENT OF DONALD ``DEL'' LAVERDURE, PRINCIPAL DEPUTY 
ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                   INTERIOR, WASHINGTON, D.C.

    Mr. Laverdure. Thank you, Mr. Young, Ranking Member Boren, 
members of the Subcommittee. My name is Del Laverdure, the 
Principal Deputy Assistant Secretary for Indian Affairs at the 
Department of the Interior.
    Thank you for the opportunity to present the views of the 
Department on H.R. 1234 and H.R. 1291, bills to reaffirm the 
authority of the Secretary of the Interior to take land into 
trust for Indian tribes.
    In 2009, I testified before the House Natural Resources 
Committee on behalf of the Department in support of similar 
legislation. Since that time, leaders from the President's 
Administration have consistently expressed support for this 
type of legislation. President Obama included language in his 
Fiscal Year 2012 budget request to address the Carcieri 
decision, signaling a strong support for a legislative 
solution.
    I am pleased to once again testify that the Department 
strongly supports Congress's efforts to address the Supreme 
Court decision in Carcieri. Both H.R. 1234 and H.R. 1291 would 
reaffirm Congress's longstanding policy of treating all 
Federally recognized tribes equally. The Carcieri decision was 
inconsistent with the longstanding policy of the United States 
to assist all Federally recognized tribes in establishing and 
protecting a land base to allow them to provide for the health, 
welfare, and safety of tribal citizens. It was also 
inconsistent with the Congressional policy, which requires the 
Department to treat all tribes alike, regardless of their date 
of Federal acknowledgement.
    Both H.R. 1234 and H.R. 1291 would help achieve the goals 
of the Indian Reorganization Act by clarifying that the 
Department's authority under the Act applies to all tribes 
unless there is tribe-specific legislation that precludes such 
a result. We have been consistent in expressing our support for 
clean and simple legislation to reaffirm the Secretary's trust 
acquisition authority under the IRA in accord with the common 
understanding of this authority that existed for the 75 years 
preceding the Carcieri decision.
    In this regard, it is important to have a clear 
understanding of the facts on fee-to-trust. The Department is 
currently considering more than 1,300 fee-to-trust 
applications. As Congressman Cole noted, more than 95 percent 
of these applications are for the acquisition of lands within 
or contiguous to existing reservations. Many others are for 
tribes that have little or no land in trust. Only 26 of these 
applications are for Indian gaming. This legislation is not 
about gaming. It is not about annexation. It simply reaffirms 
the 75-year-old congressional policy of restoration of tribal 
homelands.
    Both bills would achieve the purpose of restoring certainty 
for tribes, states, and local communities. We do, however, 
prefer the language in H.R. 1234 over the language contained in 
H.R. 1291. The language in H.R. 1234 is identical to the 
language in the President's Fiscal Year 2012 budget request.
    While we support the objective of H.R. 1291, we do not 
support language in the legislation that goes beyond simply 
reaffirming the principles originally set forth by Congress 
through the enactment of the Indian Reorganization Act.
    In my 2009 testimony on similar legislation, I predicted 
that the uncertainty spawned by the Carcieri decision would 
lead to complex and costly litigation. Unfortunately, this 
prediction has come to pass, and the Department is engaged in 
litigation regarding how it has interpreted and applied Section 
5 of the IRA to particular tribes for whom it has acquired land 
in trust.
    As a result of this ongoing litigation I will not be able 
to answer some questions from members of the Subcommittee today 
regarding how the Department has and will apply Section 5 fee-
to-trust applications. I can say, however, that the Department 
will continue to work with members of the Subcommittee to enact 
legislation to address this uncertainty. We also continue our 
work to give effect to the congressional policy of protecting 
and restoring tribal homelands on a case-by-case basis.
    The power to acquire lands in trusts is an important tool 
for the United States to effectuate its longstanding policy of 
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 will 
clarify Congress's policy and the Administration's goal of 
tribal self-determination by allowing all tribes to avail 
themselves of the Secretary's trust acquisition authority.
    Finally, these bills will help the United States meet its 
obligations as described by the United States Supreme Court 
Justice Black's famous dissent in Federal Power Commission v. 
Tuscarora Nation. Great nations like great men should keep 
their word.
    This concludes my statement and I would be happy to answer 
any questions.
    [The prepared statement of Mr. Laverdure follows:]

   Statement of Donald ``Del'' Laverdure, Principal Deputy Assistant 
Secretary-Indian Affairs, U.S. Department of the Interior, on H.R. 1234 
                             and H.R. 1291

I. Introduction
    Chairman Young, Ranking Member Boren, and Members of the 
Subcommittee, my name is Del Laverdure and I am the Principal Deputy 
Assistant Secretary--Indian Affairs at the Department of the Interior. 
Thank you for the opportunity to present the views of the Department of 
the Interior on H.R. 1234 and H.R. 1291, 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 
strongly supports Congress's effort to address the United States 
Supreme Court (Court) decision in Carcieri v. Salazar, 129 S. Ct. 1058 
(2009). In addition, President Obama's FY 2012 budget proposal included 
Carcieri fix language signaling his strong support for a legislative 
solution to resolve this issue.
    The Carcieri decision was inconsistent with the longstanding policy 
and practice of the United States to assist all federally recognized 
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 their date of federal 
acknowledgment. The Carcieri decision has disrupted the fee-to-trust 
process, by requiring the Secretary to engage in a burdensome legal and 
factual analysis for each tribe seeking to have the Secretary acquire 
land in trust. The decision also calls into question the Secretary's 
authority to approve pending applications, as well as the effect of 
such approval, by imposing criteria that had not previously been 
construed or applied.
    In 2009, I testified before the House Natural Resources Committee 
on behalf of the Department in support of similar legislation. The 
Department continues to believe that legislation is the best means to 
address the issues arising from the Carcieri decision, and to reaffirm 
the Secretary's authority to secure tribal homelands for all federally 
recognized tribes under the Indian Reorganization Act. A clear 
congressional reaffirmation will prevent costly litigation and lengthy 
delays for both the Department and the tribes to which the United 
States owes a trust responsibility.
    In the two years since the Carcieri decision, the Department's 
leadership has worked with members of the United States House of 
Representatives, members of the United States Senate, their respective 
staffs, and tribal leaders from across the United States to achieve 
passage of this legislation. During that time, and absent congressional 
action reaffirming the Secretary's authority under the Indian 
Reorganization Act, the Department has had to explore administrative 
options to carry out its trust obligations under the Indian 
Reorganization Act.
II. Purposes of the Indian Reorganization Act
    In 1887, Congress passed the General Allotment Act with the intent 
of breaking up tribal reservations by dividing 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 many Indian reservations. Approximately 2/3 of tribal 
lands were lost as a result of the allotment process. The impact of the 
allotment process was compounded by the fact that many tribes had 
already 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's 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 under section 5. That section has been 
called ``the capstone of the land-related provisions of the IRA.'' 
Cohen's Handbook of Federal Indian Law Sec. 15.07[1][a] (2005). Thus, 
Congress recognized that one of the key factors for tribes in 
developing and maintaining their economic and political strength lay in 
the protection of each tribe's land base. The United States Supreme 
Court has similarly 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).
    This Administration has sought to live up to the standards Congress 
established eight decades ago, through protection and restoration of 
tribal homelands. 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.
    Even today, 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 offset 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 tribal culture and ways of life.
III. Consequences of the Carcieri Decision
        A.  The Carcieri decision was contrary to longstanding 
        congressional policy.
    In Carcieri, the Supreme Court was faced with the question of 
whether the Department could acquire land in trust on behalf of the 
Narragansett Tribe of Rhode Island for a housing project under section 
5 of the Indian Reorganization Act. The Court's majority noted that 
section 5 permits the Secretary to acquire land in trust for federally 
recognized tribes that were ``under federal jurisdiction'' in 1934. It 
then determined that the Secretary was precluded from taking land into 
trust for the Narragansett Tribe, who had stipulated that it was not 
``under federal jurisdiction'' in 1934.
    The decision upset the settled expectations of both the Department 
and Indian Country, and led to confusion about the scope of the 
Secretary's authority to acquire land in trust for all federally 
recognized tribes--including those tribes that were federally 
recognized or restored after the enactment of the Indian Reorganization 
Act. As many tribal leaders have noted, the Carcieri decision is 
contrary to existing congressional policy, and has the potential to 
subject federally recognized tribes to unequal treatment under federal 
law.
    In 1994 Congress was concerned about disparate treatment of Indian 
tribes and passed an amendment of the Indian Reorganization Act to 
emphasize its existing policy, and to ensure that all federally 
recognized tribes receive equal treatment by the federal government. 
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). Both H.R. 1234 and H.R. 1291 would reaffirm 
Congress's longstanding policy of treating all federally recognized 
tribes equally.
        B.  The Carcieri decision has led to a more burdensome and 
        uncertain fee-to-trust process.
    Since the Carcieri decision, the Department must examine whether 
each tribe seeking to have land acquired in trust under the Indian 
Reorganization Act was ``under federal jurisdiction'' in 1934. This 
analysis is done on a tribe-by-tribe basis; it is time-consuming and 
costly for tribes, even for those tribes whose jurisdictional status is 
unquestioned. It requires extensive legal and historical research and 
analysis and has engendered new litigation about tribal status and 
Secretarial authority. Overall, it has made the Department's 
consideration of fee-to-trust applications more complex. Without 
enactment of this pending legislation, both the Department and Indian 
tribes will continue to face this burdensome process.
    In the past year, the Department has been able to complete a 
positive analysis for a handful of tribes and acquire land in trust on 
their behalf. That group includes those tribes Justice Breyer described 
in his concurring opinion in Carcieri as examples of tribes under 
federal jurisdiction in 1934 that were not federally recognized until 
later.\1\
---------------------------------------------------------------------------
    \1\ ``[A] tribe may have been `under Federal jurisdiction' in 1934 
even though the Federal Government did not believe so at the time. We 
know, for example, that following the Indian Reorganization Act's 
enactment, the Department compiled a list of 258 tribes covered by the 
Act; and we also know that it wrongly left certain tribes off the list. 
The Department later recognized some of those tribes on grounds that 
showed that it should have recognized them in 1934 even though it did 
not. And the Department has sometimes considered that circumstance 
sufficient to show that a tribe was `under Federal jurisdiction' in 
1934--even though the Department did not know it at the time.'' 
Carcieri v. Salazar, 129 S. Ct. 1058, 1069-1070 (2009) (Breyer, J., 
concurring) (citations omitted).
---------------------------------------------------------------------------
    In my 2009 testimony before the House Natural Resources Committee 
on similar legislation, I predicted that the uncertainty spawned by the 
Carcieri decision would lead to complex and costly litigation. 
Unfortunately, this prediction has come to pass, and the Department is 
engaged in litigation regarding how it has interpreted and applied 
section 5 of the Indian Reorganization Act to particular tribes for 
whom it has acquired land in trust. As a result of this on-going 
litigation, I will not be able to answer any questions from members of 
this Subcommittee today regarding how the Department has and will apply 
section 5 to tribal applications for the acquisition of land into 
trust.
    I can say that the Department will continue to work with members of 
this Subcommittee to enact legislation to address this uncertainty, and 
that we will also continue our work to give effect to the congressional 
policy of protecting and restoring tribal homelands on a case-by-case 
basis.
    As we continue that work, tribes will spend even more time and 
money to restore portions of their homelands. We expect to see even 
more litigation as a result.
IV. H.R. 1234 and H.R. 1291
    Both H.R. 1234 and H.R. 1291 would help achieve the goals of the 
Indian Reorganization Act and tribal self-determination by clarifying 
that the Department's authority under the Act applies to all tribes 
whether recognized in 1934 or after, 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. 1234 over the language contained in H.R. 1291. The language in 
H.R. 1234 is identical to language in the President's FY 2012 budget 
proposal for a Carcieri fix.
    H.R. 1234 includes language that expressly ratifies actions taken 
by the Secretary of the Interior under the authority of the Indian 
Reorganization Act to the extent that such actions are based on whether 
the Indian tribe was under federal jurisdiction on June 18, 1934. In 
addition, H.R. 1234 provides that any references to the Act of June 18, 
1934 contained in any other Federal law is to be considered to be a 
reference to the Indian Reorganization Act as amended by the 
legislation. The Department believes both the ratification and 
reference provisions would be helpful in avoiding further litigation.
    H.R. 1291 expressly excludes Alaska native tribes and villages from 
the Indian Reorganization Act. The Department believes that this 
language is unnecessary. The Department's regulations at 25 C.F.R. 
Sec. 151.1 currently provide, ``[t]hese regulations do not cover the 
acquisition of land in trust status in the State of Alaska, except 
acquisitions for the Metlakatla Indian Community of the Annette Island 
Reserve or it members.''
    We have been consistent in expressing our support for clean and 
simple legislation to reaffirm the Secretary's trust acquisition 
authority under the Indian Reorganization Act, in accord with the 
common understanding of this authority that existed for the 75 years 
preceding the Carcieri decision. We have also been consistent in our 
support of the policy established by Congress in 1994 amendments to the 
Indian Reorganization Act, which ensures that we do not create separate 
classes of federally recognized tribes. While we support the objective 
of H.R. 1291, we cannot support language in the legislation that goes 
beyond simply reaffirming the principles originally set forth by 
Congress through enactment of the Indian Reorganization Act.
V. Conclusion
    The Carcieri decision, and the Secretary's authority to acquire 
lands in trust for all Indian tribes, touches the heart of the federal 
trust responsibility. Without a clear reaffirmation of the secretary's 
trust acquisition authority, a number of tribes will be delayed in 
their efforts to restore their homelands: Lands that will be used for 
cultural purposes, housing, education, health care and economic 
development.
    As sponsor of the Indian Reorganization Act, then 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's 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 questions.
                                 ______
                                 
    Mr. Young. Thank you, Mr. Secretary. Good testimony.
    Mr. Barbry.

STATEMENT OF HON. EARL J. BARBRY, SR., CHAIRMAN, TUNICA-BILOXI 
           TRIBE OF LOUISIANA, MARKSVILLE, LOUISIANA

    Mr. Barbry. Chairman Young, Ranking Member Boren, and 
Subcommittee members, thank you for the opportunity to testify 
today.
    I am Earl Barbry of the Tunica-Biloxi Tribe of Louisiana. I 
am also Chairman of the United South Tunica Tribe Task Force. I 
am pleased today to testify concerning H.R. 1291 and H.R. 1234, 
legislation that has been introduced to address the Supreme 
Court's decision in Carcieri v. Salazar. Tunica and its member 
tribes anxiously watched the progression of the Carcieri 
litigation through the Federal court system, recognizing they 
would have a significant impact for all of Indian Country by 
unsettling the Secretary's trust acquisition authority.
    USET is grateful for the leadership demonstrated by 
Representative Cole and Representative Kildee and introduce 
legislation on this issue. I also want to acknowledge the 
leadership of strong tribal advocate Chairman Young and Ranking 
Member Boren, and their willingness to hold this hearing.
    As this Subcommittee is well aware, the Carcieri fix is of 
paramount importance to Indian Country. I can think of no 
higher policy priority for tribes across the country. USET 
firmly believes the Supreme Court decision in Carcieri is a 
fundamental attack on tribal sovereignty. The court's decision 
creates two classes of Federally recognized tribes that would 
be treated differently under the Federal law--tribes that were 
under Federal jurisdiction in 1934 and tribes that were not. 
That result is inconsistent with the very terms of the Indian 
Reorganization Act which was appended in 1934 to clarify that 
all Federal agencies must provide equal treatment to all tribes 
regardless of how or when they receive Federal recognition.
    Further, the Carcieri decision opened the door to confusion 
by the status of tribal lands, tribal businesses and important 
civil and criminal jurisdiction issues.
    While my written testimony provides a number of technical 
points about why H.R. 1291 and H.R. 1234 contain important 
provisions for a Carcieri fix, I would like to spend some time 
this morning sharing some perspective on what it has meant for 
Tunica-Biloxi to have land acquired in trust under the IRA.
    At the time of the Louisiana Purchase in 1803, Tunica-
Biloxi lost tens of thousand of acres in Louisiana through 
fraud, deceit, encroachment and cold-blooded murder. Our land 
holdings dwindled to a fraction of that amount. For example, in 
1826, a Federal land commissioner said that we were savages, 
unable to manage our own land and stripped us of a Tunica 
settlement that included thousands of acres.
    Then in the 1840s, a local landowner who was regularly 
encroaching on Tunica land shot and killed Chief Melancon who 
confronted the landowner and protested his encroachment. Sadly, 
our chief lost his life because he was doing what the Federal 
Government neglected to do--protect Tunica land. And this 
continuing act of unfairness found elderly, uneducated, female 
tribal members who spoke no English were forced to negotiate 
Tunica land holdings but be savaged by the murderer landowners 
encroachment. Ultimately the Tribe's land holdings were reduced 
to 134 acres, which was the amount of lands we held when we 
were Federally acknowledged in 1980.
    Since that time through trust acquisitions we have been 
able to ensure a land base for current tribal members and for 
future generations, so to me Carcieri fix is about Tunica's 
survival. Through those acquisitions we have been able to site 
various economic development ventures on our land, including 
our gaming operation, all of which have helped revitalize the 
economy of Central Louisiana. We have created more than 2,000 
jobs from our business, the bulk of which are filled by non-
Indians. Another 3,000 jobs have been indirectly created in the 
surrounding communities based on the strong success of our 
economic ventures.
    Further, we have developed and maintained strong economic 
and social partnerships with the local governments which have 
strong appreciation for Tunica trust lands and the opportunity 
we have been able to create for Indians and non-Indians alike.
    Our request to this Subcommittee is simple. We urge you to 
approve a Carcieri fix that does nothing more than to restore 
the understanding of the IRA held by the Department of the 
Interior and tribes around the country for 75 years before the 
Carcieri decision. Congress's failure to act may have dire 
consequences. For example, Carcieri creates a significant 
threat to public safety. The decision complicates Federal 
prosecution of crimes committed in Indian Country as well as 
civil jurisdiction over much of Indian Country.
    Thank you again for holding this hearing today on these two 
important bill. The Carcieri decision has already gone far too 
long without a response from Congress. Only through a 
legislative response can the questions, confusion and problems 
arise from the Supreme Court decision be permanently resolved. 
I would be happy to answer any questions the Committee will 
have.
    [The prepared statement of Mr. Barbry follows:]

Statement of The Honorable Earl J. Barbry, Sr., Chairman, Tunica-Biloxi 
 Tribe of Louisiana, Chairman, USET Carcieri Task Force, on H.R. 1291 
                             and H.R. 1234

    Chairman Young, Ranking Member Boren and members of the 
Subcommittee, thank you for this opportunity to present testimony on 
two critical legislative proposals--H.R. 1291, introduced by Rep. Tom 
Cole (R-OK), and H.R. 1234, introduced by Rep. Dale Kildee (D-MI).
    I offer testimony on behalf of the Tunica-Biloxi Tribe of Louisiana 
and the United South and Eastern Tribes (USET). I have served as 
Chairman of Tunica-Biloxi since 1978. The Tribe is located in 
Marksville, Louisiana on land that my ancestors came to occupy in the 
late 1700s. In 1981, Tunica-Biloxi was federally acknowledged by the 
United States through the Department of the Interior's administrative 
acknowledgment process.
    Shortly after the U.S. Supreme Court handed down its decision in 
Carcieri v. Salazar in February 2009, a number of USET member tribes, 
including Tunica-Biloxi, recognized that urgent action was needed to 
address the significant issues left in the wake of Carcieri. I was 
asked to chair USET's Carcieri Task Force, which has been tasked with 
seeking legislative and administrative solutions to address the 
problems created by Carcieri. In that capacity, I provide this 
testimony on behalf of an inter-tribal organization representing 26 
federally recognized Tribes from Texas across to Florida and up to 
Maine. Particularly given this large geographic area, USET member 
tribes have incredible diversity. Still, offering a message that is 
being echoed loud and clear throughout Indian Country, our member 
tribes stand united in asking Congress to respond to the Carcieri 
decision.
    I am particularly grateful for the leadership demonstrated by Rep. 
Cole and Rep. Kildee on this issue. In the 111th Congress and in the 
current Congress, they both recognized the importance of remedying the 
concerns arising from Carcieri and introduced appropriate legislation. 
In the 111th Congress, that effort culminated in strong bi-partisan 
support for a Carcieri fix measure that was unanimously approved by the 
House Interior Appropriations Subcommittee, and included in the 
continuing resolution (H.R. 3082) that passed the House in December 
2010.
    The Obama Administration and the Senate Indian Affairs Committee 
have also demonstrated strong support for legislation that addresses 
the Carcieri decision. Along with including a Carcieri fix proposal 
among its list of top anomalies to be addressed in the continuing 
resolution that passed Congress at the end of 2010, the Administration 
has demonstrated that a Carcieri fix is a top priority in the 112th 
Congress by including language in its proposed FY 2012 budget that is 
identical to H.R. 1234. The Senate Indian Affairs Committee marked up 
an identical bill (S.676) and unanimously approved a slightly modified 
Carcieri fix measure on April 7, 2011.
Congress Should Swiftly and Comprehensively Amend The Indian 
        Reorganization Act of 1934 to Address Carcieri v. Salazar
    As you know, the Court held in Carcieri that the Secretary of the 
Interior has authority to take land into trust under the Indian 
Reorganization Act of 1934 (IRA) only for those tribes that were 
``under federal jurisdiction'' in 1934. USET and its member tribes 
closely followed the progress of the Carcieri litigation through the 
federal court system, recognizing that the litigation would have a 
significant impact for all of Indian Country by unsettling the 
Secretary's trust acquisition authority. Those concerns were well 
founded. Tribes that have been under active federal supervision for 200 
years or more are now facing Carcieri-based challenges to trust 
acquisitions, many of which are currently pending before the Interior 
Board of Indian Appeals. While we expect those challenges to fail, they 
effectively delay trust acquisitions by several years. I strongly 
believe that the Supreme Court's decision is a fundamental attack on 
tribal sovereignty and violates the federal government's trust 
responsibility to tribes.
    The Court's opinion is inequitable because it creates two classes 
of federally recognized tribes that would be treated differently under 
federal law--those that were ``under federal jurisdiction'' in 1934 and 
those that were not--and because it opens the door to considerable 
confusion and potential inconsistencies concerning the status of tribal 
lands, tribal businesses, and important civil and criminal 
jurisdictional issues. These concerns have been significantly 
heightened in light of the D.C. Circuit Court of Appeals recent ruling 
in Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2011). In that case, the 
D.C. Circuit found that the Quiet Title Act does not bar a challenge to 
the Secretary's decision to take land into trust for a tribe on several 
grounds, including the fact that the tribe at issue was allegedly not 
``under federal jurisdiction'' in 1934.
    For these reasons, and the additional points set out below, we 
respectfully ask the Subcommittee to give all needed consideration and 
due process to H.R. 1291 and H.R. 1234, and at the same time, move 
swiftly to ensure passage of legislation that will stem the harms 
arising from the Carcieri decision.
    The Proposed Bills Offer Important Features of a Comprehensive 
Carcieri Fix. I strongly support legislation that would amend the IRA 
to restore the status quo ante, i.e. a Carcieri fix should make clear 
the view held by the Department of the Interior and tribes across the 
country for decades that land can be taken into trust under the IRA for 
all federally recognized tribes. H.R. 1291 and H.R. 1234 include such 
language, and I whole-heartedly endorse the provisions included at 
Section 1(b)-(c) of H.R. 1291 and Section 1(a) of H.R. 1234.
    I also encourage the Subcommittee to consider the importance of the 
language included in H.R. 1234 Section 1(b)-(c). Section 1(b) offers an 
explicit ratification of the Secretary's previous actions under the IRA 
that would eliminate challenges based on claims that a tribe was not 
federally recognized or under federal jurisdiction in 1934. This 
language is crucial for thwarting the threat of needless and expensive 
lawsuits that have been further encouraged given the D.C. Circuit's 
Patchak decision. If Congress enacts an IRA amendment to ensure that 
all federally recognized tribes may have land taken into trust under 
the IRA in the future, the same legislation should also make clear that 
it is not Congress' intention to leave an open question about the 
legality of actions taken under the IRA before the amendment was 
passed.
    H.R. 1291 Section 1(c) offers an alternative, more streamlined 
approach for addressing this same concern. In its mark up of H.R. 1291 
and/or H.R. 1234, I encourage the Subcommittee to give significant 
consideration to the importance of clear and comprehensive language 
that would ratify the Secretary's past actions under the IRA to 
eliminate the threat of needless and baseless challenges.
    In most significant part, H.R 1234 Section 1(c) makes an explicit 
statement that a Carcieri fix amendment will not affect any law other 
than the IRA, nor will it alter the Secretary of the Interior's 
authority in any other way. This language simply clarifies that the 
amendment is not an attempt to inappropriately expand the reach or 
meaning of the IRA or the Secretary's trust acquisition authority. 
Rather, it is an amendment solely intended to codify the view long held 
by DOI and tribes concerning the Secretary's trust acquisition 
authority as it stood before the Carcieri decision was handed down.
    Two additional considerations are worth noting. First, the ``equal 
footing'' doctrine compels Congress to enact a Carcieri fix. The courts 
and Congress have long recognized that states enjoy the same basic 
sovereign rights, regardless of when they were admitted to the Union. 
Congress recognized the importance of applying that principle to Indian 
Country, and amended the IRA in 1994 to make clear that all federal 
agencies must provide equal treatment to all tribes regardless of how 
or when they received federal recognition. See 25 U.S.C. Sec. 476(f)-
(g). Unfortunately, the Supreme Court ignored this principle in 
deciding Carcieri.
    Second, Congressional action is needed to ensure permanent 
resolution of this issue. Although DOI may continue to acquire land in 
trust for tribes, any decisions to do so remain under the threat of 
Carcieri-based administrative and court challenges. Until Congress 
takes action to clarify that the Secretary's authority to take land 
into trust applies to all federally recognized tribes, Carcieri will 
undoubtedly be a source of controversy and challenge as DOI and the 
courts struggle to determine what it means to have been ``under federal 
jurisdiction'' in 1934--a question that the Supreme Court did not 
answer in Carcieri.
    Protecting Tribal Homelands and Promoting Self-Sufficiency. In 
enacting the IRA, Congress sought to reverse the devastating impact of 
the federal policies of allotment and assimilation that marred federal 
Indian policy in the late 19th and early 20th centuries. In place of 
that policy, the IRA offered comprehensive reform allowing for the 
establishment of tribal constitutions and tribal business structures, 
as well as land bases to be held in trust.
    DOI has used the IRA to assist tribal governments in placing lands 
into trust, enabling tribes to rebuild their homelands and provide 
essential governmental services through the construction of schools, 
health clinics, Head Start centers, elder centers, veteran centers, 
housing, and other tribal community facilities. Tribal trust 
acquisitions have also been instrumental in helping tribes protect 
their traditional cultures and practices. Equally important, tribal 
trust lands have helped spur economic development on tribal lands, 
providing much-needed financial benefits, including jobs, for tribal 
communities and nearby non-Indian communities as well. These important 
benefits should move Congress to ensure that tribal self-determination 
and tribal sovereignty are supported by clarifying that the Secretary's 
IRA trust acquisition authority extends to all federally recognized 
tribes.
    Tribal land bases are the foundation of tribal economies. Tunica-
Biloxi is a strong example, among many, of how tribal trust 
acquisitions promote tribal self-sufficiency and positively impact 
surrounding non-Indian communities. Avoyelles Parish, which is home to 
the Tribe's reservation, was once among the poorest areas in Louisiana 
and had alarmingly high unemployment rates. However, the Tribe's trust 
land acquisitions in the late 1980s and early 1990s allowed it to site 
gaming operations and other business ventures that have completely 
reversed the economic conditions of Avoyelles Parish and areas beyond. 
Today, Tunica-Biloxi can provide employment for any tribal member who 
wants a job. Tunica-Biloxi's economic ventures have created over 2,000 
new jobs in Louisiana, over 90 percent of which are held by non-
Indians. Currently, the Tribe pays about $40 million in employment 
wages annually. Over the last 16 years, it has paid more than $500 
million in employment wages. None of this could occur, however, if 
Tunica-Biloxi's land did not have trust status.
    Current Law and Regulations Address the Concerns of Trust Land 
Opponents. Some tribal opponents argue that a Carcieri fix that 
restores the Secretary's trust acquisition authority for all federally 
recognized tribes would lead to the proliferation of off-reservation 
gaming across the country. That notion lacks factual support. Although 
Indian gaming activities occur on trust lands, the IRA's land-into-
trust process is legally distinct and separate from determining whether 
Indian land is eligible for gaming.
    The Indian Gaming Regulatory Act (IGRA) establishes a general 
prohibition against gaming on lands placed in trust after 1988, making 
exceptions for gaming on lands acquired in trust after that date only 
in very limited circumstances. The most notable of these is a two-part 
test requiring the Secretary of the Interior to determine that gaming 
would be in the best interest of the tribe and not detrimental to the 
surrounding community, as well as the concurrence of the governor of 
the state where the proposed Indian gaming activity would occur. 
Further, DOI has promulgated strict regulations (25 C.F.R. Part 292) to 
guide the Secretary in determining whether Indian land meets an 
exception to the prohibitions set out in IGRA. As a result of these 
statutory and administrative limitations, only five tribes have gained 
approval to conduct off-reservation gaming since 1988.
    Those with concerns over the expansion of Indian gaming have every 
opportunity to oppose and possibly stop any off-reservation expansion 
under existing law and regulations. A Carcieri fix does not affect that 
balance of power between tribes and states struck in IGRA and should 
not become hostage to this concern. Ignoring the fact that IGRA governs 
gaming in Indian Country is dismissive of the federal law established 
to address such concerns.
    Others suggest that trust acquisition authority should not lie with 
DOI, and that local governments do not have adequate input on trust 
acquisition decisions. These concerns are also unfounded. Certainly, 
nothing prohibits Congress from taking land into trust for a tribe by 
legislative action. Still, Congress has already made clear in the IRA 
that it is appropriate to delegate tribal trust acquisition authority 
to DOI, the federal agency that for decades has served as the federal 
government's primary interface with tribes. To that end, DOI has 
implemented comprehensive regulations, see 25 C.F.R. Part 151, for 
exercising its trust acquisition authority.
    Further, those regulations ensure that non-Indian communities 
surrounding proposed trust acquisitions have significant input in DOI's 
trust acquisition decisions. In fact, as part of any trust acquisition 
analysis, the state and local governments having regulatory 
jurisdiction over the land to be acquired are given 30 days in which to 
provide comments on the acquisition's potential impacts on regulatory 
jurisdiction, real property taxes and special assessments. Also, the 
Secretary's trust application analysis must consider the impact on the 
state and local governments of removing the lands from the tax rolls, 
and any jurisdictional conflicts and potential conflicts of land use 
that could arise. These provisions should allay concerns that state and 
local governments lack a significant voice in the decision to acquire 
land in trust for tribes.
    Congressional Inaction Has Significant Consequences. Failing to 
restore the Secretary's trust acquisition authority will have 
tremendous negative impacts that reach far beyond tribal communities. 
One concern is that Carcieri creates a significant threat to public 
safety. By upending decades-old interpretations regarding the status of 
Indian lands, the Supreme Court has thrown into doubt the question of 
who has jurisdictional authority over the lands. The geographic scope 
of federal criminal jurisdiction depends upon the existence of Indian 
Country--a term that includes trust land. And the Supreme Court has 
used this same concept of Indian Country to define the complicated 
boundaries between federal and tribal authority on one hand and state 
authority on the other. Thus, the Carcieri decision could cast doubt on 
federal prosecution of crimes committed in Indian Country as well as 
civil jurisdiction over much of Indian Country.
    Likewise, failing to clarify the Secretary's trust acquisition 
authority deprives tribal governments of important benefits that the 
IRA was intended to provide. As noted, tribal land bases are a 
fundamental component of creating and sustaining tribal economic 
development. Federally recognized tribes that lack the ability to have 
land acquired in trust, or whose land holdings are threatened because 
of Carcieri, likewise lack the ability to promote economic development, 
attract investing businesses, and create jobs on their lands. This also 
harms surrounding non-Indian communities who also benefit from 
successful tribal economies.
    Further, the Carcieri decision creates uncertainty and promises 
years of legal wrangling as to all tribal land bases, even those held 
by tribes that were federally recognized in 1934. Those who oppose 
tribal sovereignty will use the Carcieri decision to challenge all 
trust acquisitions, even for tribes with long-standing treaty relations 
with the United States and clear federal recognition in 1934. As noted 
above, even lands currently held in trust for such tribes are now 
subject to challenge in court under the Patchak decision. Of course, 
the situation is even more uncertain for tribes that were not federally 
recognized in 1934. Each of us is obliged to comb through years and 
volumes of historical records to establish a standard--``under federal 
jurisdiction''--that remains a moving target. This uncertainty, both 
during and after trust acquisition by the United States, undermines the 
very purpose of the IRA. Congress must provide Indian Country certainty 
by enacting a legislative fix.
    The financial cost of Congressional inaction for American taxpayers 
and tribal governments is also noteworthy. In addition to spending time 
and resources in efforts to meet an undefined ``under federal 
jurisdiction'' standard, the federal government and tribes should 
expect to incur significant costs in defending against challenges to 
pending and existing trust acquisitions using Carcieri. Indeed, since 
the Supreme Court handed down the Carcieri decision, more than a dozen 
judicial and administrative disputes have arisen in which the ``under 
federal jurisdiction'' standard is at issue. American taxpayers will 
bear the burden of these legal fights, which will undoubtedly be 
protracted and costly, as the federal government will be called upon to 
defend its past and pending Indian trust acquisitions. Litigation of 
this nature will also be a costly burden to tribes whose lands are at 
issue, as they will likely want to intervene or act as amici in 
challenges to the trust status of their lands.
    Legislatively restoring the Secretary's trust acquisition authority 
for all federally recognized tribes and ratifying the Secretary's past 
acts under the IRA would fully address these harmful financial 
implications. It costs taxpayers nothing for Congress to pass a 
Carcieri fix. At the same time, a Carcieri fix eliminates the threat of 
significant litigation and mushrooming costs to taxpayers on the 
question of what ``under federal jurisdiction'' means. Particularly at 
a time when our country is looking to cut unnecessary government 
spending, this factor alone should offer Congress sufficient reason to 
amend the IRA to ensure its application to all federally recognized 
tribes.
Conclusion
    The work of this Subcommittee is critical to Indian Country. This 
observation is particularly true when considering what steps are needed 
to address the pressing issues arising from the Carcieri decision. Only 
Congress can provide a comprehensive and permanent resolution for these 
concerns. Tribes across the country are speaking loud and clear: a 
Carcieri fix is Indian Country's top legislative priority in the 112th 
Congress. I respectfully ask that this Subcommittee honor tribal 
sovereignty and the federal trust responsibility to tribes by giving 
all needed consideration to H.R. 1291 and H.R. 1234, and then moving 
swiftly to ensure that Congress restores the Secretary's authority to 
acquire land into trust for all federally recognized tribes.
                                 ______
                                 
    Mr. Young. Thank you. I will suggest one thing. Being from 
Louisiana you did very well.
    [Laughter.]
    Mr. Young. I gave you a little extra time, so thank you, 
sir.
    I just saw Billy Tauzin a little while ago in the hallway 
and it just reminded me of that.
    All right, we have Cedric Cromwell, you are up next.


STATEMENT OF HON. CEDRIC CROMWELL, CHAIRMAN, MASHPEE WAMPANOAG 
                 TRIBE, MASHPEE, MASSACHUSETTS

    Mr. Cromwell. [Greeting in native language.] That means 
good day. Good morning, [native language] my language. Chairman 
Young, Congressman Boren and members of the Subcommittee, I am 
Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribe in 
Massachusetts. I would like to thank Chairman Young for the 
invitation to speak here today and for your leadership on this 
and so many other important issues to Indian tribes. I would 
like also to thank Representative and Ranking Member Markey, 
and Representative Tsongas, members of the Committee from my 
home state of Massachusetts, for their friendship to our tribe.
    I appear here today to testify on H.R. 1291 and H.R. 1234, 
which seek to address a number of problems associated with the 
Carcieri decision. We support enactment of legislation to 
reaffirm the congressional intent of the Indian Reorganization 
Act of 1934. The Secretary must have clear authority to take 
land into trust for all tribes. As you know, Congress passed 
the IRA to remedy misguided policies designed to break up 
tribal lands and tribal communities. The most devastating 
policy was the allotment of land, meaning the individual 
parsing out of tribal lands once held in common by Indian 
tribes. This policy was implemented as part of the General 
Allotment Act of 1987. Commonly referred to as the Dawes Act, 
named after Massachusetts Senator Henry Dawes. You could say 
that my tribe was the test case for this effort.
    Our tribe was part of the Wampanoag Confederation whose 
territory extended throughout eastern Massachusetts and into 
parts of present-day Rhode Island. My people met the Pilgrims, 
the Wampanoag Nation did that. Even after the trouble caused by 
colonization, even after loss of most traditional Wampanoag 
territory, the Mashpee Wampanoag still held approximately 55 
square miles of land protected against sale for centuries.
    During that time tribal members actively resisted 
encroachment on this property. However, the last was ultimately 
too attractive and in 1842 the Commonwealth of Massachusetts 
passed a law that required our land, which had been held in 
common, be carved up and parsed out or allotted to individual 
tribal members. Desperately poor tribal members soon lost their 
parcels to tax takings or to pay off debts.
    The effect of this law was to destroy the Tribe's 
reservation and deprive the Tribe of thousands of acres of 
tribal common lands, ending our ability to protect our 
community and control our own destiny. Our experience 
foreshadowed the effect that the allotment act lent throughout 
Indian Country.
    Although our tribe's original deeds prohibited sale for our 
reservation, almost all of our land has now been acquired by 
outsiders, stripped of its natural resources and developed into 
resort communities. Tribal members cannot afford to live among 
the mansions, malls and golf courses that now crowd our 
coastline. Today, we lack a single acre of Federally protected 
land and territory. After waiting more than 30 years for the 
Interior Department to process and approve our petition for 
Federal acknowledgement, the Mashpee Wampanoag people are 
desperately lacking in government services.
    The tribe still is underfunded compared to other tribes, 
and we struggle to provide assistance for significant help, 
housing and educational needs. Because we do not have trust 
lands, we cannot get the funding we need for these programs. We 
need Federal trust lands to provide the services needed by our 
people to protect our cultural and religious heritage and to 
promote economic development and self-reliance.
    The confusion in the wake of the Carcieri decision has 
complicated our efforts to re-establish even a modest land 
base, one of the original goals of the IRA. Our tribe is 
confident that the Secretary of the Interior has the authority 
to take land into trust for our tribe, but the confusion caused 
by the Carcieri decision introduces substantial additional cost 
and delays.
    Our fear is not that the land cannot be taken into trust on 
our behalf. It is that we will bear the burden of frivolous 
lawsuits that will cost us time and money that we don't have. 
But there is a larger issue at stake here. We do not believe 
that Congress when rightly correcting the injustices of the 
allotment act intended to only correct those injustices for 
some tribes. We do not believe that Congress intended to create 
two classes of Indian tribes, those with land and those 
without.
    The Supreme Court decision cannot be read to keep one class 
of Federally acknowledged tribes landless and disadvantaged for 
ever. This legislation before you today is not just an 
opportunity for Congress to clear up the confusion caused by 
the Carcieri. It is an opportunity for Congress to once again 
reaffirm its commitment to ending the shameful legacy of 
allotment and to affirm its desire to provide justice for all 
Native Americans. It was the right thing to do back then, it is 
the right thing to do today.
    I applaud this Subcommittee today for this hearing and for 
your proposals to fix Carcieri. We look forward to working with 
you in the coming weeks and I welcome your questions. [Speaking 
in native language.]
    [The prepared statement of Mr. Cromwell follows:]

         Statement of The Honorable Cedric Cromwell, Chairman, 
          Mashpee Wampanoag Tribe, on H.R. 1291 and H.R. 1234

    Good morning, Chairman Young, Congressman Boren and members of the 
Subcommittee. I am Cedric Cromwell, Chairman of the Mashpee Wampanoag 
Tribe in Massachusetts. I would like to thank Chairman Young for the 
invitation to speak here today, and for your leadership on this and so 
many other issues important to Indian tribes. I would also like to 
thank Rep. Markey and Rep. Tsongas, members of the committee from my 
home state, for their friendship to our Tribe.
    I appear here today to testify on H.R. 1291 and H.R. 1234, 
introduced by Congressmen Cole and Kildee, respectively, which bills 
seek to ensure the Indian Reorganization Act (``IRA'') continue--as it 
has since 1934--to extend its intended relief to all federally 
recognized tribes. Congress enacted the IRA as a remedial statute to 
help all Indian tribes begin to recover from the devastating effects of 
the United States' allotment and assimilation policies and Congress's 
laws implementing those policies. Tribes had suffered from prior failed 
federal policies intended to dismantle tribal communities by destroying 
tribal land bases and traditional lifestyles.
    Indian tribes have always been, and today continue to be, land 
based cultures--communities inextricably connected to the soil, water, 
and air around us, to the plants and animals that ensure our survival, 
and to the places we call home. In our view, our lands hold much more 
than mere economic value but rather have great cultural, religious, 
and--in the modern era, especially--political significance. Our lands 
are where we live, where we gather together, and where we exercise our 
inherent sovereign rights as pre-Constitutional peoples.
    The Mashpee Wampanoag Tribe, whose government-to-government 
relationship with the United States was reaffirmed in 2007, once 
occupied a large land area throughout eastern Massachusetts and into 
parts of present day Rhode Island. Today, in sharp contrast, the Tribe 
lacks a single acre of protected territory (i.e., federal trust land) 
but must restore its land base and continue to strengthen its culture 
and community. The confusion in the wake of the Carcieri decision is 
substantially impeding our efforts to restore our land base.
ALLOTMENT, THE IRA, AND THE MASHPEE WAMPANOAG PEOPLE AS EARLY SUBJECTS 
        OF ALLOTMENT
    As you know, Congress enacted the Indian Reorganization Act in 1934 
expressly to repudiate the policy of allotting tribal land--which had 
reduced the Indian land base from 156 million acres in 1881 to 48 
million in 1934. To achieve its goal, the IRA empowered the Secretary 
of the Interior to acquire land in trust to begin to restore tribal 
land holdings.
    The process of allotting tribal lands was part of a massive effort 
to disrupt tribal common land tenure. The policy was implemented by the 
General Allotment Act of 1887, commonly referred to as the Dawes Act. 
Named after its principal sponsor, Massachusetts Senator Henry Dawes, 
the Act established the most powerful federal apparatus for 
dispossessing tribal communities of their lands. Senator Dawes was 
continuing an effort that had already proved successful in 
Massachusetts.
    It is important to understand that our tribe has long suffered the 
harms that the Indian Reorganization Act was intended to cure. Decades 
before the General Allotment Act, the Mashpee Wampanoag Tribe was among 
the first to be harmed by allotment policy. Massachusetts was among the 
first states to use that strategy to separate Native people from their 
homeland.
    The Mashpee Wampanoag, as part of the Wampanoag Confederacy, once 
exercised control over a land area that extended from Cape Cod to the 
Blackstone River and Narragansett Bay in present day Rhode Island and 
up to the Merrimack River near present day Gloucester, Massachusetts. 
The spread of disease, colonization and English settlement quickly 
decimated that base. For centuries, despite the trauma of first 
contact, the Mashpee Tribe still held approximately 55 square miles of 
land in common based on historic deeds to the Tribe. This was confirmed 
by deeds that the Plymouth Bay Colony re-executed and recorded as the 
Marshpee Plantation in 1671. The deeds provided that land could not be 
sold outside the Tribe without unanimous consent of the whole Tribe.
    The deed restrictions protected Tribal lands against alienation, 
helping to assure that the Wampanoags had a secure, if diminished, 
homeland that was capable of housing our people and providing them with 
food from the land and the waters. During that time, tribal members 
actively resisted encroachment, repeatedly petitioning the legislature 
to repel trespassers. Over the years, some but not all of those 
defenses were successful; archival documents demonstrate each 
generation's vigilance, including tribal efforts to raise money for 
lawsuits to recover land. Initially, the Colony and later the 
Commonwealth of Massachusetts respected the tribal right to possess but 
the tribal resources were, ultimately, too attractive, and the 
Commonwealth of Massachusetts removed the Tribe's right to control its 
destiny through an 1842 Act of the General Court that provided for the 
land to be divided up and then allotted in severalty to tribal members.
    In 1869, two votes in Mashpee were held seeking the Tribe's consent 
to this allotment policy. Tribal voters twice rejected the proposal. 
However, in 1870, each tribal member over 18 received 60 acres of 
land--freely alienable and fully taxable.
    The effect of this law was to destroy the Tribe's reservation and 
deprive the Tribe of thousands of acres of tribal common lands. This 
single act by the Massachusetts legislature seriously wounded our 
Tribe. But we have survived.
    The Mashpee experience thereafter foreshadowed the effect that the 
Allotment Act had throughout Indian Country. Once communally held lands 
were made alienable, desperately poor tribal members would in short 
time lose their parcels.
    By 1871, outsiders had acquired control of the choicest plots of 
land in Mashpee, immediately clear-cutting much of the last remaining 
hardwood in Massachusetts.
    Speculative development soon followed. Even though the Mashpee 
Tribe retained political control of the Town of Mashpee as long as 
outsiders were not permanent residents, the die was cast. By the late 
twentieth century, the Tribe had lost control of its land base.
    As Mashpee Town development accelerated, the Tribe and its members 
continued to lose land, the environment continued degrade, and the 
tribal members, forced out of Town government, received no benefit. 
Later arrivals developed the Town into its present identity as a resort 
community. Tribal members cannot afford to live among the mansions, 
marinas and golf courses that now crowd our coastline. Tribal efforts 
to establish housing have been delayed and frustrated by the inability 
to acquire trust lands.
    Even more, Indian tribes recognized through the Interior 
Department's regulatory process at 25 C.F.R. Part 83, such as the 
Mashpee Wampanoag, were required to demonstrate existence on a 
substantially continuous basis since 1900, which we easily satisfied. 
For Indian tribes acknowledged through this process, then, federal law 
recognizes our historical existence, and we therefore deserve all the 
same rights that our sister tribes have long enjoyed. The unfortunate 
and mistaken period of non-recognition should not impose a new and 
ongoing disadvantage to the Mashpee Wampanoag Tribe.
THE IMPORTANCE OF A FEDERALLY-PROTECTED LAND BASE
    The conversion of Mashpee from an exclusively Indian town to one 
controlled by outsiders is nearly complete. At this time, the Tribe 
seeks to recapture some of its former land base to permit it to 
establish housing for members who lack the means to purchase housing in 
Mashpee. We seek trust status for our administrative headquarters, the 
locus of tribal cultural, health and other governmental programs. We 
hope to acquire other land within our homeland in the Mashpee vicinity, 
so that Mashpee Wampanoag people can once again effectively govern 
themselves and protect their land, the birds, and the animals on that 
land and the fish in its waters from development. Moreover, we are 
seeking land for economic development in southeastern Massachusetts, 
tied to our historic origins in a region where many of our current 
members reside.
    As noted, tribal lands hold more than economic value to us. Because 
they are the places where we walk and where we worship, they are 
sacred. Because they are the places where we gather and where we dance 
and sing, they are vital to our cultures and communities. And because 
federally-protected lands are the places where we exercise our 
sovereign rights, they are critical to our legal and political 
survival.
    Specifically, a federal trust land base is vital. Unlike lands 
owned in fee, trust lands reflect a form of tenure closer to our 
original occupation of our homelands. Trust lands are communal and 
perpetual, and they are non-alienable and non-taxable. They cannot be 
used to profit some at the cost of others, and they will be there for 
our children's children and longer. And those tribal trust lands 
deliver a clear message to all that we exist not only as a people but 
as a nation.
THE CARCIERI EFFECT AND THE MISPERCEPTIONS IT HAS CAUSED
    After waiting more than thirty years for the Interior Department to 
process our petition for federal acknowledgment, the Mashpee Wampanoag 
are desperately lacking in government services. The Tribe is still 
underfunded compared to other tribes, and struggles to provide 
assistance for significant health, housing and educational needs. Our 
minimal fee land holdings are threatened with local taxation. And we 
must confront the controversy and impediments posed by the Supreme 
Court's decision in Carcieri v. Salazar. Federal policy and an express 
federal statute prohibit unequal treatment of Indian tribes. See the 
IRA amendments of 1994, at 25 U.S.C. 476(f).
    The Carcieri decision is the greatest threat to tribal sovereignty 
since the General Allotment Act, and opens the possibility of 
condemning tribes to live with the benighted Indian policies of the 
nineteenth century. Those who exaggerate the holding of the case argue 
that the Interior Department may not acquire trust land on behalf of 
tribes ``not recognized'' in 1934. The Court did not so hold, but 
referred rather to whether a tribe was ``under federal jurisdiction'' 
as of that time. But the Court didn't define the meaning of ``under 
federal jurisdiction,'' opening up extensive controversy and raising 
the specter of two classes of tribes, with one class permanently 
deprived of land. Along with other recently re-affirmed tribes, we are 
the ones who need land the most so we can begin to provide economically 
for our people.
    The Mashpee Wampanoag Tribe is confident that the Secretary of the 
Interior has authority to take land in trust for our Tribe, but the 
confusion introduces substantial additional costs and delays. Not only 
will we have to face direct challenges to our Initial Reservation, but 
we will also have to deal with the consequences of litigation arising 
in other areas of the United States.
    Recently, the United States Court of Appeals for the District of 
Columbia Circuit ruled in favor of challengers to the Secretary's 
acquisition of land in trust for the Gun Lake Band in Michigan. 
(Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2011)). The Appeals Court 
there determined that the challenge could go forward despite the 
precedent in other federal courts that the Quiet Title Act had barred 
such suits by specifically excluding challenges to Indian trust land 
from the permission of suits against the United States to dispute title 
to land. Moreover, the Court held that the challenging party, objecting 
to casino development, fell within the ``zone of interests'' of the 
Indian Reorganization Act--a technical requirement for standing to 
assert the objection in court.
    Thus, the confusion spreads. According to the D.C. Circuit's 
opinion, Indian trust land is no longer specially protected against 
outside challenge. And according to the D.C. Circuit's opinion, the 
fact that Indian gaming refers to Indian trust land, equates Indian 
gaming interests with tribal sovereignty issues. This is a common 
strategy, and as a practical matter, can succeed even when totally 
devoid of merit. The Carcieri decision is being used as a weapon for a 
much broader attack on tribal sovereignty, either to change applicable 
law, or to delay its rightful implementation. So long as the purpose 
and effect of the Indian Reorganization Act remain clouded, all of 
Indian Country faces expanding and unforeseen impediments to future 
well-being.
CONCLUSION
    I am greatly encouraged that this Subcommittee is moving forward 
today with a hearing on proposals to ``fix'' the Carcieri damage. I 
hope that this Subcommittee, and the Congress as a whole, can move 
forward promptly to enact legislation that provides a complete remedy, 
and does not impose any other constraints on the trust relationship. We 
hope you will support a clean Carcieri fix that clarifies and restores 
the authority of the Secretary of the Interior to extend the benefits 
of the Indian Reorganization Act to all federally recognized tribes. We 
ask that the task of rebuilding tribal homelands continue as before, so 
that tribes like ours will be able to enjoy benefits already afforded 
to other tribes.
    The Mashpee Wampanoag Tribe has been here since long before 1934. 
Despite centuries of protecting our homeland from encroachment, we were 
devastated by the first impact of forced allotment. In 1934, Congress 
recognized that allotment was a failed policy, unfairly destructive of 
tribal communities. We suffered that harm before 1934 and continue to 
suffer from it today. We ought to benefit from the actions and the 
assistance that Congress promised in 1934. We urge this Congress to 
take action to finish the job it started in 1934, and provide 
meaningful relief--to Mashpee and to all other Indian tribes as we have 
all been harmed in the past by the destructive federal policies and 
Congressional enactments that the IRA sought to remedy. In so doing, we 
urge you to take action to prevent an isolated but powerful decision of 
the Supreme Court from becoming the pivot that begins the new erosion 
of Tribal sovereignty and the government-to-government relationship 
with the United States.
                                 ______
                                 
    Mr. Young. Thank you. Mr. Swimmer?


STATEMENT OF ROSS O. SWIMMER, FORMER PRINCIPAL CHIEF, CHEROKEE 
                  NATION, TAHLEQUAH, OKLAHOMA

    Mr. Swimmer. Thank you, Mr. Chairman and Ranking Member 
Boren, for those kind comments, and for the Members that are 
here today. My bill is a little bit different than Carcieri. If 
I were to suggest a solution to the Committee, I would say pass 
Carcieri too. It is a pleasure to be here on behalf of the 
Cherokee Nation. I have appeared many times before this 
Committee on behalf of the Administration in the past.
    I am here today to speak to H.R. 1421. It is a simple bill. 
Normally it would be part of the Water Resource Development Act 
bill. My concern has been in talking to Members of Congress 
that there may not be a bill this year and may not be one next 
year for the water resources from the Transportation and 
Infrastructure Committee. As the Chairman noted, this bill is 
referred to both committees, the Natural Resources and the 
Transportation and Infrastructure Committees.
    That is why we have introduced a stand-alone bill, H.R. 
1421. We think that a stand-alone bill is appropriate in this 
particular situation. In 1970, three Indian tries--Cherokee, 
Choctaw and Chickasaw--were awarded title to the Arkansas River 
in eastern Oklahoma. On the Cherokee side of the river, there 
is a lock and dam known as the W.D. Mayo Lock and Dam No. 14. 
That is one of the only lock and dams on the river where 
hydroelectric power has not been added.
    Congress, in 1986, in an effort to give some value to the 
ownership of the river authorized the Cherokee Nation to have 
the exclusive right to put a hydroelectric facility on that 
lock and dam. Unfortunately, it has not been economically 
feasible to do so until recently. The legislation, however, in 
1986, required, in addition to the Cherokees designing and 
building the project, that we would then transfer the project 
to the Corps of Engineers for operation and maintenance, and 
that Southwest Power Administration would sell the power for 
us, pay us back, give us a royalty, and manage the project.
    What we are offering today is that we will do the entire 
project. It is the only way it can be done is to have the 
Cherokee Nation actually design, build, own, operate, maintain 
and sell the power. The two provisions in 1986 legislation that 
transfer the project to the Corps and have Southwest Power 
administer the sale of the electricity are the amendments that 
H.R. 1421 would do to the 1986 legislation that was passed 
authorizing the Tribe to do this.
    There is no more authorization necessary. We are already 
authorized. There is absolutely no cost to the government. We 
simply are eliminating the requirement of transferring the 
facility to the Corps of Engineers and eliminating the 
requirement that SWPA would have to market the power.
    The bottom line is at no cost to the United States the 
Cherokee Nation, if allowed under H.R. 1421, will build on its 
land a 30 megawatt hydroelectric facility at a cost of $140 
million on the Arkansas River. It will create 150 to 200 jobs 
during three years of construction and provide a significant 
economic boost to an area of high unemployment and will fulfill 
the purpose of Congress in 1986 of providing the Cherokee 
Nation with an opportunity to produce power from its own land.
    It is a very simple proposition. It is one that both the 
Corps of Engineers, Southwest Power Administration, Bureau of 
Indian Affairs, everybody is supportive of. We would like to do 
the project. The Corps of Engineers wants us to do the project. 
We will spend the $140 million. We could own and operate and 
sell the power, and all I need are two little technical 
amendments to the 1986 legislation that are contained in H.R. 
1421.
    So, I request this committee to consider that. I appreciate 
having this opportunity to have a hearing before this 
Committee, and I also would request the Chairman to consider 
this as he sits on the Transportation and Infrastructure 
Committee.
    Thank you very much for the opportunity to be here and very 
much appreciate Congressman Boren for his assistance in this. I 
have written testimony. I would like to submit it for the 
record, and thank again the Committee for its indulgence in 
allowing me to be here today.
    [The prepared statement of Mr. Swimmer follows:]

  Statement of The Honorable Ross O. Swimmer, Former Principal Chief, 
                     Cherokee Nation, on H.R. 1421

    Good morning. Thank you for the opportunity to testify before this 
Committee regarding the development of a hydroelectric facility by the 
Cherokee Nation to be located at Lock and Dam 14, known as the W.D. 
Mayo Lock and Dam on the Arkansas River in the Cherokee Nation.
    In 1970, the United States Supreme Court ruled that the Cherokee 
Nation, Chickasaw Nation and Choctaw Nation owned the bed and banks of 
the Arkansas River from Ft. Smith, Arkansas west and north to Muskogee, 
Oklahoma. Previously, it was believed that the State of Oklahoma held 
title as a result of a letter sent by the Secretary of the Interior 
soon after Oklahoma statehood, stating his belief that the State had 
title as a result of the ``equal footing'' doctrine applicable when 
Oklahoma gained statehood. Under this doctrine, it was understood that 
new states to the Union received title to the bed of navigable 
waterways in their state.
    Following the victory in the Supreme Court, a later decision by the 
U.S. District Court determined that the Cherokee Nation owned the north 
half of the river from Ft. Smith to the confluence of the Canadian 
River and the entire river from the Canadian to the town of Muskogee.
    In the 1950's, the United States Corps of Engineers (USACE) 
received Congressional approval and appropriations to construct what is 
known as the McClellan-Kerr navigation system along the Arkansas River. 
The project begins in Tulsa, Oklahoma and follows the Arkansas River 
south until it reaches the Mississippi River in Louisiana thereby 
enabling barge shipping from Tulsa to the Gulf of Mexico. Of course, 
unknown to USACE at the time, was the fact that the three Indian Tribes 
owned the land where the system of locks and dams was built that 
enabled the navigation by barge of the River. In addition to the locks 
and dams that were built, USACE also added hydroelectric generation 
components at the Robert S. Kerr and Webbers Falls lock and dams. Only 
the W.D. Mayo lock and dam in Oklahoma did not have a hydroelectric 
facility added beside it.
    After the court case against the State of Oklahoma was finally over 
and the location of tribal ownership established, the three Indian 
Nations asked that the River be appraised. The Bureau of Indian Affairs 
commenced an appraisal of all the known assets located in or on the 
River. These included the dam sites, electric generation, sand and 
gravel, rights-of-way, oil and gas production and the land itself. The 
appraised value of the River was estimated to be $177 million. At that 
point, the three Tribes began negotiations with the United States based 
on the government's use of the River assets and the apparent taking of 
land that belonged to the three Tribes by the United States for the 
construction of the navigation system. Approximately, 25 years later a 
settlement was entered into between the United States and the three 
Tribes. However, in 1981, the Cherokee Nation, as part of its 
settlement negotiations, asked Congress for the exclusive right to 
build a hydroelectric facility on its land at the W.D. Mayo lock and 
dam so that the Nation could receive some benefit from the ownership of 
its land. As a result, in 1986, as part of the Water Resource 
Development Act of 1986, Section 1117 was added that gave this right to 
the Cherokee Nation.
    The 1986 Act provided that the Cherokee Nation shall have an 
exclusive right to be the developer of the hydroelectric facility at 
the W.D. Mayo lock and dam. However, it also required that when the 
construction was completed, the facility would have to be transferred 
to USACE which would then manage, operate and maintain the facility and 
that Southwestern Power Administration (SWPA) would have to market the 
power from the facility so that the debt for construction would be paid 
and the Nation would receive a return on its investment and a royalty 
for all power sales from the facility. Unfortunately, the value of the 
potential power sales was not enough to cover the cost of the project, 
much less pay the Nation a royalty or return on its investment. While 
the Congress believed it was providing some compensation to the 
Cherokee Nation for its ownership of the River, it never materialized.
    Thirty years later has made quite a difference in the energy 
markets. The price of energy is significantly higher, ``open access'' 
has changed the dynamics of federal hydro power marketing and 
transmission, and the Cherokee Nation has access to capital that was 
not available then. However, to move the project forward requires some 
changes to the legislation that was enacted in 1986. First is the 
ownership. In the 1986 act, the ownership must be transferred from the 
Cherokee Nation to USACE after construction. Presumably, this was 
necessary so that USACE could operate and maintain the project. This is 
not necessary today. The Cherokee Nation needs to own the project after 
it's built in order to obtain financing, and will pay all costs of 
engineering, construction, operation, and maintenance of the project, 
thus relieving the United States of any financial burden for the 
project. In addition, it is no longer necessary that Southwestern Power 
Administration market the power from the facility. This also will 
become the responsibility of the Cherokee Nation and, again, the Nation 
will compensate the United States for any costs incurred in the 
transmission by SWPA, or other costs associated with the power 
marketing.
    The intent of H.R. 1421 is simple. Under these amendments, not only 
would the Cherokee Nation design and build the project, it would also 
retain ownership of the project and market the power produced from the 
project. In addition, there would be no cost to the government for the 
design, build, management and operation of the project as all costs 
would be paid by the Cherokee Nation, including any expenses of USACE 
or SWPA in the development and licensing of the project. The project 
will employ between 150 and 200 workers during construction, generate 
30 megawatts of renewable energy, have very little impact on the 
environment, create a recreation area nearby, support economic 
development opportunities for other businesses in the area during 
construction and enhance USACE's ability to manage the flow of the 
river better.
    The Cherokee Nation understands that amendments to previous WRDA 
bills are normally processed through subsequent WRDA bills. For three 
years, the Nation has attempted to obtain these simple amendments, but 
no WRDA bill has been enacted. The Nation has also been asked if it can 
proceed with the project using the 1986 authorization. Attached to our 
testimony is an email from the regional office of USACE that explains 
why the project cannot go forward without these amendments. In 
addition, if the 1986 authorization were used, USACE would have the 
burden of obtaining appropriations for the operation and maintenance of 
the project. The proposed amendments eliminate that requirement since 
the Cherokee Nation would be paying all the costs for the project.
    The Nation believes that it has a limited time to move this project 
forward due to financing costs and the escalating cost of building the 
project and purchasing the turbines. Cherokee also recognizes that 
renewable energy, increasing employment and economic development in 
Indian Country are critical needs at this time, and that these needs 
can greatly be advanced if these amendments are enacted.
    On behalf of the Cherokee Nation and its Principal Chief, Chad 
Smith, I ask for your support of this legislation and that it be moved 
as quickly as possible through the House processes and to the Senate 
for final enactment. Thank you for your consideration.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                 ______
                                 
EXHIBIT A
Testimony of Ross 0. Swimmer, Dune 22, 2011

Original Message
From: Russo, Ray S SWD
Sent: Wednesday, May 18, 2011 8:41 AM
To: Brittnee Preston
Cc:  Micik, John HQ02; Hostyk, Aaron H HQ02j Reynolds, Georgeie HQ02; 
Gore, Sandy L HQ02; '[email protected]\1\
Subject: WD Mayo Hydropower (UNCLASSIFIED)

Classification: UNCLASSIFIED Caveats: NONE

Brittnee,

    As discussed at our meeting last week, we have reviewed the W.D. 
Mayo Hydropower Project to determine if we could proceed without 
requirements for additional authorizing legislation. We investigated 
the potential to implement the project under the Federal Energy 
Regulatory Commission's Non-Federal Hydropower licensing program 
authorized by the Federal Power Act. Under this program, a non-Federal 
developer could receive a license/approval to construct, operate, 
maintain, and market the power generated at, a hydropower plant 
constructed at a Federal reservoir.
    FERC will issue a license to a non-Federal developer only if there 
is no Federal interest in developing hydropower at the facility. Based 
on the attached 2002 letter, the FERC has made a determination that it 
lacks jurisdiction to license a hydropower project at the federal W.D. 
Mayo Lock and Dam. This is due to the existing authorization contained 
in section 1117 of WRDA 1986, which authorizes the Cherokee Nation of 
Oklahoma to develop the hydropower potential of the W. D. Mayo Lock and 
Dam to the exclusion of other entities.
    As we discussed, use of the FERC licensing process could have 
achieved the overall goals of the Cherokee Nation on this project if 
the project had not been authorized under WRDA 1986. However, in 
talking with Mr. Swimmer, we have identified some other issues 
associated with proceeding under the FERC licensing process. Most 
notably, if section 1117 was to be repealed, the Cherokee Nation's 
application for a FERC license would be subordinate to other, pre-
existing applicants. This would seem to frustrate the intent of the 
Congress when it enacted section 1117 in 1986. Because of this 
information, it appears the best sole means to assist the Cherokee 
Nation in proceeding with this project is through the legislation that 
has been provided to you by Mr. Swimmer. Although the Army has not 
taken an official position on the legislation, we note that it is a 
budget-neutral proposal which protects the interests of the Federal 
Government. We also note that the proposed legislation shifts the 
financial obligation for operation and maintenance of the project from 
the Secretary of the Army to the Cherokee Nation.
    Congressman Lankford also asked us to check and see if this was a 
project specific proposal, or one that could be implemented nationally. 
The provisions authorized by section 1117 is specific to this project. 
Because of the special situation contained in the original authority, 
the Corps does not see a need for additional national authority. Based 
on our assessment, the national policy for non-Federal hydropower 
development at Federal projects is already covered by the Federal Power 
Act.
    Please let me know if you have any additional questions on this 
item, or on any other item of importance to Congressman Lankford.

Sincerely,

Ray Russo 214-263-8107

Classification: UNCLASSIFIED Caveats: NONE
                                 ______
                                 
    Mr. Young. Without objection, and thank you, Mr. Swimmer, 
for your testimony. This is a classic example of while we are 
trying to write transportation called the American Indian, 
Alaskan Indian Empowerment Act. I mean, this is silly. And I 
can guarantee this bill will move over to the other committee 
as quickly as possible, and then we have to negotiate with that 
committee. They have a lot of things on their plate right now, 
but this would be a positive thing for them to do.
    Like I say, I don't think there would be any objection 
anywhere to do it. It is just the fact we got caught in the 
original authorization language of having to transfer it over 
to the Corps to manage it. They don't want to do it anymore, 
and let you have the whole bag, so we will get it down. Now, I 
have to work with the other side, too. That is the dark hole 
over there.
    Mr. Swimmer. Yes, I understand, Mr. Chairman. Thank you 
very much.
    Mr. Young. I thank you. Mr. Boren, do you have questions 
for the panel?
    Mr. Boren. Mr. Chairman, I would like to, with your 
indulgence, yield one minute of my time to Mr. Kildee. He has 
got to run. He has got some things on his plate right now if 
that would be OK.
    Mr. Young. I will put it this way. I will recognize Mr. 
Kildee, and then I will recognize you so you don't lose your 
one minute.
    Mr. Boren. Thank you.
    Mr. Young. Mr. Kildee.
    Mr. Kildee. Thank you very much, Mr. Chairman, and Mr. 
Boren. I appreciate that.
    You know, from the beginning of the history of this nation 
there have been two shameful areas. One is how we treat our 
Native Americans and the Founding Fathers wrestled with that, 
never came to any good conclusion at all, and the other area is 
how we treat the African Americans. So the Indians of this 
country and the African Americans from the very beginning the 
Founding Fathers did not address the injustices that were 
inherent in their treatment of both those groups.
    Dred Scott reaffirmed our very bad relationship, immoral 
relationship with our African Americans. Carcieri illustrates 
again a bad relationship with our Native Americans. You know, 
it took the Civil War to set aside Carcieri. We right here have 
the power to remedy the injustice that took the Supreme Court--
took the Civil War I should say to set aside the--let me back 
myself up a bit here. It took the Civil War to really set aside 
Dred Scott. All we need here to set aside Carcieri is the 
action of this Congress. That is an enormous power but we have 
that power within our hands.
    So, as Dred Scott was a bad decision of the Supreme Court, 
Carcieri is a bad decision of the Supreme Court, and we have in 
our hands the power to remedy that injustice, and I yield back 
the balance of my time.
    Mr. Denham [presiding]. Thank you, Mr. Kildee. Mr. Boren.
    Mr. Boren. Thank you, Mr. Chairman. I also want to say 
again to the bills' authors, both Mr. Kildee and Mr. Cole, 
thank you for your leadership in Indian Country, and thank you 
both. I know Mr. Cole is not here, but I know that you will be 
working together and that hopefully this will get done. This 
something that we have tried to do, and we have gotten a little 
way in the last Congress, but feel that hopefully we can get 
something done this time. It seems like everyone is focused on 
the debt ceiling, but you know, if we can get this Carcieri fix 
that would be nice as well.
    I have a couple of questions. Let me start with Mr. 
Swimmer. I know we have this big crowd here for H.R. 1421. It 
is a great bill and I appreciate you working on it. Can you 
talk to us about--what would happen to the project if the 
Cherokees, if you built and you had to convey it back to the 
Corps of Engineers? Would it even remain feasible in that 
situation?
    Mr. Swimmer. It is literally impossible to do that. The 
Corps of Engineers would then have to seek appropriations to 
operate and maintain the project. They are not willing to do 
that. If we don't build the project as I described it where we 
would be able to build it, own it, finance it, and sell the 
power, this project will never get done. There will be 30 
megawatts of renewable energy that will never be produced on 
that river, and a lot of jobs that will go unfulfilled that 
could be hired right now in an area of high unemployment in 
Oklahoma.
    Mr. Boren. Well, it makes a lot of sense to me, and also, 
you know, the Corps of Engineers' budget is--you know, they 
have a lot of other things that they are working on so here is 
the Cherokee Nation willing to invest these dollars and do 
this, and I think it is the right thing to do, and it is my 
hope that we can get a markup on this bill in short order. So 
thank you for being here.
    I have another question for our panel, for Mr. Laverdure. 
One of the recommendations we have heard today is that specific 
congressional standards--that specific congressional standards 
to guide trust land decisions should be enacted with any bill 
to address Carcieri. What is the Administration's position on 
this recommendation?
    Mr. Laverdure. Thank you, Ranking Member Boren. The 
Administration views--we simply want a clean and simple 
Carcieri fix, and we do not support any deviations from that, 
and we view that as one of those deviations, and we think that 
local concerns, state and local governments are taken into 
account in the process as it is today.
    Mr. Boren. Another follow-up question. We have on the next 
panel Mrs. Schmit who is going to testify, but in her written 
testimony she argues that passing a clean Carcieri fix would 
again expand gaming nationally. Assuming she is referencing 
IGRA, do you agree that a clean Carcieri fix would in fact 
expand gaming on the national level?
    And, of course, we have heard from other Members on this 
Committee about the fact that this is not about just gaming. In 
fact, it is a small part. So could you expound on your theories 
there?
    Mr. Laverdure. Thank you for the question. No, we do not 
believe that it would expand gaming, and that this issue is 
much, much larger than gaming. Over 95 percent of the pending 
applications are for non-gaming-related issues, over half of 
which are agricultural and housing, over half of the pending 
applications.
    Also, we view the Carcieri--a simple clean Carcieri fix is 
returning to status quo, and that status quo would be that 
people would have the opportunity to be treated equally, all 
the tribes would be treated equally going forward.
    Mr. Boren. Last question, Chairman Barbry. What has it 
meant for Tunica tribal members to have their homelands 
restored through trust acquisitions under the IRA? And what has 
it meant to the surrounding non-Indian community?
    Mr. Barbry. It has meant that we restored a land base for 
our people, and provide a future for our children, provide 
housing, health care, economic development, provide a lot of 
employment for the surrounding area. As I said in my testimony, 
we have created thousands of jobs in the area, and the majority 
of those jobs are filled by non-Indiana.
    Mr. Boren. Right. Thank you. Thank you for your testimony. 
I yield back, yield back to the Chairman.
    Mr. Denham. Thank you. Mr. Laverdure, how many trust land 
applications have been approved since the Carcieri ruling was 
made in February 2009?
    Mr. Laverdure. I don't think we have a total number, and 
allow me to explain for a minute. Because of the Carcieri 
decision and the uncertainty that it created, we have sent out 
directives internally from the central office to the regional 
and the superintendent offices to include Carcieri-related 
information in their fee-to-trust applications in all 
instances, and that would deal with the Great Plains or treaty 
tribes, executive order tribes, congressional tribes, and we 
have asked for that evidence, and sometimes it may be as simple 
as we voted yes or no on the IRA, and documentation in those.
    But in terms of probably the more prominent cases I think 
that people attribute to the Carcieri decisions, which we began 
to do after the last Congress, was unable to get complete 
passage of the Carcieri fix, we have the Cowlitz Tribe which 
was announced last December, around Christmas, which is subject 
to litigation, and then the three tribes that were in the 
concurring opinion of Justice Breyer--Stillaguamish, Grand 
Traverse and Miluk--each of those have been completed in a 
positive Carcieri analysis.
    Mr. Denham. So how many total have been approved?
    Mr. Laverdure. I mean, the total number it varies day to 
day because we ask, for example, Lakota tribes to put in their 
IRA, so technically it is all the ones that have pending ones 
that have been approved have had to comply with the Carcieri 
analysis. The numbers--because as an administration, at least 
since the Obama Administration came in, there has been 450, 
roughly, fee-to-trust transactions, and since the Carcieri 
decision we have asked each and everyone of those to have a 
Carcieri statement as part of the 151 process. So, it would be 
roughly that number that have to comply with the Carcieri.
    Mr. Denham. OK, but there is a certain number that have 
been completely approved?
    Mr. Laverdure. Yes, that is correct.
    Mr. Denham. And what is that number?
    Mr. Markey. It is roughly 450 total fee-to-trust 
transactions in the last two years.
    Mr. Denham. You have 450 fee-to-trust, but not all of those 
have been through the entire process and been completely 
approved. There is a small number that have been completely 
approved, is that correct?
    Mr. Laverdure. Well, most of those have been approved at 
the regional level, and most of those have had to have the 
Carcieri statement in there, and those are varying levels from 
the Cowlitz decision with the record of decision, which speaks 
for itself, a very lengthy analysis on what it had to do in its 
unique history for Carcieri decision, and then the more simple 
ones where it is an IRA vote one way or another.
    Mr. Denham. And since the Carcieri ruling was made in 2009, 
how many lawsuits have been filed to block the Secretary from 
placing land in trust for a tribe pursuant to Section 5 of the 
Indian Reorganization Act, IRA?
    Mr. Laverdure. We have 11 lawsuits currently against the 
Department for Carcieri-related decisions.
    Mr. Denham. And are those lawsuits on behalf of individual 
states? Who are the lawsuits on behalf of?
    Mr. Laverdure. It is a variety of all of the above: non-
Indian states, local governments, and even tribes in limited 
circumstances.
    Mr. Denham. And on that issue the government has often been 
sued by tribes for mismanagement of their trust lands. What has 
the Secretary done to improve its mismanagement of the lands 
that have been taken into trust for the benefit of the Indians?
    Mr. Laverdure. Thank you for the question. I am recused 
from Cobell, but that would be the example that I would give, 
that settlement, and then the legislation going forward on the 
Commission and what they are going to do with the mismanagement 
piece of it all.
    Mr. Denham. Thank you. I yield back.
    Mr. Faleomavaega. Am I on, Mr. Chairman?
    Mr. Denham. Yes.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I do want to 
thank you both and our Ranking Member, Mr. Boren, for your 
leadership, and especially for calling this hearing which I 
feel is very, very important, these three pieces of legislation 
now pending.
    I do want to associate myself with the comments made 
earlier by the gentleman from Oklahoma concerning H.R. 1421, 
and I want to say for the record that I have absolute support 
for this piece of legislation by our colleague from Oklahoma, 
and I just have a couple of questions I wanted to ask just to 
make sure for the record that--Secretary Laverdure, the 
Administration absolutely supports this legislation?
    Mr. Laverdure. Yes, 100 percent.
    Mr. Faleomavaega. Good. Then that makes it even easier, 
solves about 50 percent of the problem there. I do want to say 
that I want to also associate myself with the comments made 
earlier by Mr. Kildee. Some of the historical problems that we 
have had in the legacy of the history of our country, and I 
would also add the fact of what happened to the Japanese 
Americans in World War II. I think is another piece of history 
that--this is the thing that I think, Mr. Chairman, gives back 
what I think is the beauty of our democracy of our country is 
our ability to correct our mistakes, and I think we are trying 
to do that constantly, and in that effect we did make a formal 
apology to this tremendous wrong that we did against the 
Japanese Americans during World War II.
    I wanted to ask Mr. Swimmer, from this given experience 
does he foresee any problems whatsoever in terms of--I have 
read the bill, and I just cannot see what would be any other 
possible area that would be some objection on both sides of the 
aisle as far as this proposed bill is concerned.
    Mr. Swimmer. Thank you. I have visited most all members on 
both sides of the aisle in committees both in the House and the 
Senate. I have yet to find the slightest opposition other than 
process, and the process of the Congress has been a little 
convoluted, but it is a bill that is unanimously supported, 
supported through the agency and supported through Congress, 
and it is just a matter of getting it done.
    Mr. Faleomavaega. Thank you. I was listening with some 
interest in terms of the concerns some people have about the 
bills that we are trying to take corrective action by the 
Supreme Court case, and this word ``gaming'' always seems to 
come through some sense of suspicion, and I amused by the fact 
that why we are so concerned about American Indians getting 
involved in gaming, but I have yet to hear one word of the fact 
that the states are fully free to do anything to do with 
gaming, and there seems to be no objection or any limits given 
to the rights of states to do gaming. Why are we pointing the 
finger just at the American Indians for some sense of 
suspicion?
    The fact that we are even controlled by Federal law, I mean 
the suspect that there may be some syndicate connections in all 
of this--totally outrageous, and I am looking forward to 
hearing from our witness that seems to express concerns about 
for fear that we are going to have gaming if we are going to 
reverse the Carcieri decision by legislatively correcting this 
awful decision that was made by the Supreme Court.
    Mr. Cromwell, you mentioned that for 30 years your tribe 
still has not been recognized through the FAP procedure?
    Mr. Cromwell. Our tribe was reaffirmed in 2007 as a 
Federally recognized tribe, but it was 30 plus years in court 
to get to Federal recognition, and historically we have always 
been there and everyone knows who we are. We know who we are. 
But the fact of the matter is that we are landless. You know, 
we are a Federally recognized tribe without a land base, and so 
that is not a good situation for us because for housing, health 
care and education we can't access those opportunities, those 
funding opportunities because a lot of funding follows the 
trust land to build those facilities, so it really puts us in 
an imbalanced situation of being able to be sovereign and be 
able to provide the sovereign services for our people.
    Mr. Faleomavaega. You remind me of another tribe that I 
have been involved in all these years. For over 100 years the 
Lumbee Indian Tribe of North Carolina are still trying to seek 
recognition which is just unbelievable in terms of what we have 
done in not helping this tribe out.
    Mr. Barbry, you mentioned something, you only have 124 
acres left after--
    Mr. Barbry. We only have 134 acres.
    Mr. Faleomavaega. I am sorry, my time is up, Mr. Chairman. 
I will wait for the second round. Thank you.
    Mr. Young. Ms. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chairman.
    First of all, Mr. Swimmer, I don't want you to be ignored 
in this process. I have no questions and I think your bill is 
fairly straightforward.
    But Mr. Laverdure, I do have questions of you. You say in 
your statements something that we have seen throughout this, 
which is this concept of a clean and simple legislation, and I 
assume by that you are saying you support H.R. 1234 over H.R. 
1291, is that correct?
    Mr. Laverdure. Yes, we do favor H.R. 1234.
    Ms. Hanabusa. Let me ask you something about H.R. 1291. It 
seems to me that the provision that you take issue with is the 
statement that ``In this section the term `Indian Tribe' means 
any Indian or Alaskan Native Tribe and Native Nation, Pueblo 
Village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian Tribe'', is that correct?
    Mr. Laverdure. That is one of the issues and we think that 
it is already handled within our existing regulations.
    Ms. Hanabusa. And what is the other portion that you take 
issue with?
    Mr. Laverdure. Well, just to reaffirm that we think that 
both bills are generally supportive of the position of 
restoring tribes--the policy of restoring tribes back to a 
position where they were before the Carcieri decision, but I 
think, as noted by Ranking Member Boren, the ratification 
clause, it would help alleviate the uncertainty of the 
positions of past trust lands taken in.
    Ms. Hanabusa. What I would not like to see us do is to 
leave a group out that could be clarified. So is there any 
Alaska Native Tribe that exists as an Indian Tribe that would 
fall in this definition that you are aware of?
    Mr. Laverdure. I think that there are at least from the 
past of the Department after the 1994 amendments to the IRA 
where it said ``for privileges and immunities that all tribes 
would be treated the same,'' there was an administrative 
recognition of the tribes in Alaska and there are some 230 plus 
that were Federally recognized.
    Ms. Hanabusa. In your statement also you reference 
Department Regulation 25 C.F.R. 6 and 151.1, and there you 
speak to that--I guess it does not cover the acquisition of 
land, certiorari really talks about the trust lands of the 
Secretary, except you have--I think it is the Metlakatla--am I 
saying that right?--Indian Community. I concede to you--the 
Annette Island Reserve and its members.
    It seems to me that we do have a group, whether it is the 
250 that you are referencing or the specific group that has 
been specifically identified in 25 C.F.R. 150, that is in need 
of clarification or should be further defined so that we are 
not caught back in this situation.
    So why then wouldn't H.R. 1291 be the better piece of 
legislation to address any loopholes that we may have?
    Mr. Laverdure. We have H.R. 1234 for the reasons stated 
earlier, and we think that the existing regulations which today 
prohibit the taking of land into trust provide the certainty.
    Ms. Hanabusa. But clearly by your own 25 C.F.R. 151.1 you 
have a specific group that is somehow carved out. So then the 
question is going to be as Congress in its wisdom passes 
another series of legislation which could arguably override 
that we may have a mess. So why wouldn't H.R. 1291 be the 
cleaner fix?
    Mr. Laverdure. Our position is that H.R. 1234, which only 
addresses the Section 5 issue of the IRA, which was the subject 
of the Carcieri decision, that that is the response most 
appropriate for the legislation.
    Ms. Hanabusa. I understand what you are saying, but you are 
still not answering my question. I am saying we obviously have 
a problem, we have an opportunity to clean it up, so why would 
you leave it to Congress in its wisdom to not mess it up?
    I mean, we have a habit of doing that, don't we, Mr. Chair? 
So why wouldn't we clean it up correctly when we are already 
going back to the Carcieri settlement so we know that we have 
problems? So that is my issue, and if you could I would like to 
get it in writing from you, Mr. Chair, if you would?
    Thank you very much. My time is up.
    Mr. Young. I thank the good lady. I want everybody to 
understand something, why my bill, H.R. 1291, is a better bill 
right up front because the Metlakatla situation, they are a 
tribe, they have been recognized, they have been--all these 
years they have never asked for anything else.
    We have a different situation. Ada Deer, when she was the 
Secretary of BIA, she made by a stroke of a pen 228 new tribes 
without any consultation with anybody else, and I have said all 
these years that originally we had 12 tribes in Alaska, and 
then they created these tribes and I believe sincerely that she 
wanted to destroy the concept of the Alaska Native Land Claims 
by creating so many different tribes and making them equal on 
basis to require monies from the BIA, thus causing a failure.
    Now, they have been smart enough now, mostly consolidated. 
Not all of them, but most of them have consolidated, 
recognizing that they are still tribes but recognizing their 
value is from unity, and yet we have interest groups that will 
come in, and especially I go back to the land ownership, 
surface versus subsurface. One belongs to the corporation, it 
is not a reservation, and the second one belongs to the village 
tribes. That is the surface part of it. The subsurface and 
surface.
    And again I go back to 1971, the Act is very clear. It says 
without creating reservation systems or lengthy wardships or 
trusteeships, and that is what we are basing the land 
suggested, and this is very strong. So my question to you is, 
Mr. Secretary, if we do not adopt my bill and adopt Mr. 
Kildee's bill, do you believe that the chances to apply for a 
land to be taken into trust by one of those recognized tribes 
under Ada Deer, would that be a threat and could it happen 
through the Department?
    Mr. Laverdure. Thank you, Chairman Young.
    We know that the Alaska Native situation has a variety of 
unique circumstances, including the LCSA law that you have been 
referring to from 1971, and there are circumstances that are 
different. As of today the regulations prohibit the fee-to-
trust acquisition, and we have no eminent plans to change those 
fee-to-trust regulations.
    And I also note that there is a pending case on that very 
question about whether the Department can prohibit the fee-to-
trust--
    Mr. Young. Which case is that?
    Mr. Laverdure. Let me find the citation here. It is, and 
you have to help me with the pronunciation here--the Akiachak 
Native Community--
    Mr. Young. Akiachak, yes.
    Mr. Laverdure. That is in the Alaska District Court, and 
the challenge is to the regulatory bar on trust land 
acquisitions in Alaska, and so that is as much as I can discuss 
about it because it is in litigation. The Solicitor's Office 
and DOJ aren't here, but it is in litigation.
    Mr. Young. OK. Well, again, do you believe if we pass the 
Kildee bill that there could be like an application of the 
Akiachak, a chance for application to take land into trust, 
thus breaking the Alaska Native Claims Act?
    Mr. Laverdure. They could apply but the regulations bar it 
today.
    Mr. Young. What if the Judge strikes down the regulation? 
Then I am screwed if you pardon that pun.
    [Laughter.]
    Mr. Young. But I mean, that is something we have to really 
think about. I mean, that is the interest because I have spent 
too much time and I have watched too much success to see this 
Act be destroyed by those interest groups that will go in and 
get one of the tribes to say, all right, now, this is the way 
we will file for a trust relationship with Interior, and thus 
there won't be any resource for the corporation because it will 
be disallowed. Is that correct?
    Mr. Laverdure. I don't know, Chairman Young.
    Mr. Young. Well, I am going to suggest that you--are you a 
lawyer?
    Mr. Laverdure. I check my bar license at the door when I--
--
    Mr. Young. OK. Well, I am curious because one of the things 
you have learned, one of the most telling things I have heard 
from all of you is we don't need any more lawsuits. We don't 
need to employ these people in the legal field to settle 
something this Congress I think can settle, so that is what I 
am trying to get at and see what we can do.
    Mr. Cromwell, it is all your fault.
    [Laughter.]
    Mr. Young. Massachusetts--I was going to say Mr. Markey. 
When you think about it if you said ``Don't land''.
    [Laughter.]
    Mr. Faleomavaega. Will the Chairman yield?
    Mr. Young. Yes, gladly.
    Mr. Faleomavaega. I recall there is a huge cartoon about 
these flying saucers that came down, the two Indian looking at 
this flying saucer and one said to the other ``Oh, no, not 
again.''
    [Laughter.]
    Mr. Young. Anyway, I want to thank the panel. We will be 
handling this--how do you pronounce it? Carcieri? Carcieri? We 
will be working, we will move this legislation, I am committed 
to do that, and I think it is vitally important to the Native 
Nations to make sure that this is set aside because there is 
too much investment, too much thinking that we were doing the 
right thing, investments, and so we will move this legislation.
    Now we are going to hear from other witnesses who don't 
support it, and I understand that, and we will try to take 
their comments and sincerity and see if we can't adjust this. 
If we can't do it, then that is the way it goes.
    I want to thank the panel. You are excused.
    [Pause.]
    Mr. Young. We now welcome Mr. Skibine, Professor of Law at 
the University of Utah; my good friend Don Mitchell, Attorney 
at Law in Anchorage, Alaska; Supervisor Susan Adams, President, 
Marin County Board of Supervisors, State of California; Cheryl 
Schmit with Stand Up for California. Again.
    I think you have heard my litany about the buttons and the 
timeframe. I think it has been very well done. Let us continue 
that. I would at this time recognize Mr. Skibine, Professor of 
Law at the University of Utah.

    STATEMENT OF PROFESSOR ALEXANDER TALLCHIEF SKIBINE, THE 
  UNIVERSITY OF UTAH, S.J. QUINNEY COLLEGE OF LAW, SALT LAKE 
                           CITY, UTAH

    Mr. Skibine. Thank you. I appreciate the opportunity to be 
here to discuss these important bills. They certainly are 
needed.
    Chairman Young, a special hello to Mr. Faleomavaega and Mr. 
Kildee that were members along with the Chairman of this 
Committee when I worked on the Committee from 1980 to 1990 
under the guidance of Chairman Udall. In fact, Chairman Young, 
it is 30 years ago I think this month that I went for the first 
time to Alaska with the Committee where we basically visited 
every national park, and I can tell you that it was a trip of a 
lifetime.
    Anyway, I am supporting the two bills. I think they are 
needed and they are basically needed for three reasons.
    First, the Carcieri decision was in effect a bad decision, 
and one of the reasons is that it did create two classes of 
Indian tribes. Number two, the legislation is needed because 
the Carcieri decision created some uncertainties concerning, 
you know, what tribes were under Federal jurisdiction as of 
1934. And finally, what I am going to talk about is that I 
would hope that the Committee would pass the bill as simple as 
they can get it in order to avoid some complications, 
especially in the other body.
    So, with this in mind, you know, I worked for 10 years at 
the Committee and then for the last 20 years I have been exiled 
to Utah where I have been teaching basically--I have been 
writing Federal Indian law, but I teach mostly constitutional 
law, administrative law, and legislation. With this in mind, 
let me talk just a bit maybe about the Carcieri decision, and 
why it was a bad decision.
    In my mind, you know, the law, reasonable people like my 
colleague here, we can disagree, but I think that the law as a 
result of the word being used ``now'' under Federal 
jurisdiction was ambiguous. So, usually what courts do, first 
they look at the plain meaning. If the plain meaning is 
ambiguous, then they look at the purpose to see of they can 
devise some clarity.
    The purpose of the IRA was to stop the allotment process, 
to establish a government-to-government relationship with 
Indian tribes so the tribes would reorganize, and number three, 
it was to encourage self-government and economic self-
sufficiency. None of those three purposes to me indicates that 
the law should be interpreted as being limited to tribes under 
Federal jurisdiction as of 1934. So, even looking at the 
purpose there could be an ambiguity.
    If there is still an ambiguity, normally the courts will 
look at canons of statutory construction, and here there are 
two substantive canons that should have decided the case in 
favor of the government. One is the so-called Chevron doctrine, 
which is a doctrine of deference. It basically says if the term 
is ambiguous, then we will give deference to a permissible 
interpretation of the law that is given by the administrative 
agencies in charge of implementing the law. OK, so it is a 
doctrine of deference but saying that Congress really delegated 
to the agency the first crack at figuring out the ambiguity.
    The court disregard the Chevron doctrine in this particular 
case. In effect, by doing this they really usurped the power of 
the executive department to implement legislation. So that is 
number one.
    Number two, you have a second canon which is the Indian 
canon of statutory construction, and, you know, in my testimony 
I turn professorial on you and talk about why this is a serious 
canon that has to do with the trust doctrine. It is a 
substantive canon, and as a result it is a canon that should 
not be disregarded.
    In effect, it is related to Congress's power over Indian 
affairs that is called plenary, and as a result when the court 
disregarded the canon, when there is an ambiguity in effect, 
they assert the role of Congress by, in effect, rewriting the 
statute the way they wish to have that it was written. OK, so 
that is basically why it is a bad decision.
    Number two, we need to resolve the uncertainties. The terms 
``now'' and ``under Federal jurisdictions'' are confusing, and 
as a result there will be, as the Assistant Secretary just 
said, a bunch of litigation. Until recently I thought the 
United States would have sovereign immunity in those cases, but 
in effect a recent case indicates that the Quiet Title Act is 
no longer a bar to those lawsuits, so we can look forward to 
more lawsuits.
    Finally, number three, I want to talk about trying to keep 
the legislation simple, and here there are certain things that 
can happen that will make the legislation more complicated.
    Number one, you know, obviously like what you are trying to 
do is to say it should not be applicable to Alaska. There are 
reasons that are legitimate to do this. My fear here is once it 
goes on the Senate side somebody is going to say, well, if 
Alaska, why not exempt California? Why not exempt Nevada? And 
that is a fear that I had if this happened.
    Number two, some other people may say that the IRA should 
be beefed up by having more standards that are legislatively 
designed. Again I would add some caution about this because if 
you start adding standards through the delegation of authority 
the question is, and this is like opening the flood gate in 
principle, you know, where do you stop. And from a simple bill 
it can become a very complicated bill.
    And number three, I would caution, like some previous 
witnesses have said, as far as trying to bring in other type of 
problems concerning, for instance, Indian gaming. Indian gaming 
has generated many problems, many complex problems. I will 
grant you this: this is not the bill to solve the problems with 
Indian gaming. This is an amendment to the IRA. It is not an 
amendment to the Indian Gaming Regulatory Act.
    With this in mind I will just conclude by saying that when 
I was a young staff on this committee at one point I wanted to 
amend SMCRA, you know, a lot of this is very familiar to you, 
and I said, you know, I told the senior counsel on the 
committee, you know, we should make a small Indian amendment to 
SMCRA. And I remember he looked at me, and he says, ``Alex, you 
foolish young man. Do you know where the bodies are buried in 
SMCRA?''
    I will never forget that, but in effect he basically said 
if we have an Indian amendment in SMCRA people are going to 
come out of the woodwork and come with a whole bunch of 
amendments that have nothing to do with Indians concerning 
SMCRA.
    I think the guy was wise and I think that I am afraid that 
if we start moving away from the Kildee bill, you know, the 
same thing may happen to this bill.
    Thank you very much for your attention.
    [The prepared statement of Mr. Skibine follows:]

  Statement of Alex Tallchief Skibine, S.J. Quinney Professor of Law, 
             University of Utah, on H.R. 1234 and H.R. 1291

    Mr. Chairman, members of the Subcommittee. Thank you for inviting 
me to testify on these important bills. They are needed in order to fix 
the uncertainties created as a result of the Supreme Court decision in 
Carcieri v. Salazar.
    I fully endorse H.R. 1234, sponsored by Congressman Kildee.
    The other bill, H.R. 1291 by Congressman Cole is a little bit more 
complicated. In addition to amending the definition of ``Indian'' by 
deleting reference to being a member of a tribe under federal 
supervision as of 1934, it also amends the definition of ``tribe'' to 
basically mean any tribe ``that the Secretary of the Interior 
acknowledges to exist as an Indian tribe.'' More importantly, however, 
it exempts Alaska from the provisions of section 5 of the IRA.
    I have no initial position or objection to the new definition of 
``tribe'' proposed in H.R. 1291. On the second point, I am not an 
expert on Alaskan Native issues but my understanding is that, at least 
in the past, the Department of Interior used to take the position that 
because of ANCSA, (the Alaska Native Claims Settlement Act), land 
cannot be taken in trust in Alaska pursuant to section 5. My first 
impression is that this part of H.R. 1291 seems to be a sort of pre-
emptive strike. It attempts to moot any current or future challenge to 
the current regulations. Legally speaking, I tend to believe that to 
the extent that ANCSA created an ambiguity, under the Chevron doctrine, 
deference should be given to the Agency's position and the courts 
should end up upholding the current regulations. This means that this 
pre-emptive strike may not be really needed. On the other hand, I also 
believed that the Court should have deferred to the agency's 
interpretation in the Carcieri case. As we all know now, the Court did 
not.
    I want to make a point perfectly clear. The two bills just restore 
the law the way it was understood by almost everybody before the 
Carcieri decision. It restores the law the way it had been functioning 
for many years and, in my opinion, restored the law the way Congress 
probably intended it to be since 1934. What the Court did in Carcieri 
was to rewrite the statute the way it wanted it to be written. Some may 
call this judicial activism.
    My testimony is going to cover the following four points.
        1.  Why Carcieri was, legally speaking, a bad decision.
        2.  Is there enough standards controlling the Secretary's 
        implementation of section 5?
        3.  Why it is a good idea to make the amendment retroactive as 
        of 1934.
        4.  Why this legislation should not attempt to address issues 
        relating to off reservation gaming.
1. Carcieri v. Salazar.
    The issue in the case was whether the Secretary could place land 
into trust for the benefit of the Narragansett Indian tribe using 
section 5 of the 1934 Indian Reorganization Act. This section allows 
the Secretary of the Interior to acquire land into trust ``for the 
purpose of providing land for Indians.'' 25 U.S.C. 479, however, 
defines ``Indian'' for the purposes of the Act to ``include all members 
of any recognized Indian tribe now under federal jurisdiction.'' The 
issue in Carcieri was the exact meaning of the words ``now under 
federal jurisdiction.'' Did ``now'' mean ``as of 1934'' when the Act 
became law or did it mean that the tribe had to be under federal 
jurisdiction at the time the land was taken into trust for its benefit? 
Speaking through Justice Thomas, the Court held that the unambiguous 
meaning of the words ``now'' meant as of 1934. This (in turn) meant 
that the Secretary could not use the authority given in section 5 to 
take land into trust for tribes, like the Narragansett Indian tribe, 
which were not under federal jurisdiction as of 1934.
    What persuaded Justice Thomas that the word ``now'' was meant to 
restrict application of the Act to Indian tribes under federal 
jurisdiction as of 1934?
    Evidently three things:
        1.  First he mentioned the ordinary meaning of the word 
        ``now.''
        2.  He mentioned the context of the IRA. Justice Thomas thought 
        it very meaningful that in section 468, the Congress used the 
        words ``now existing or and hereafter established'' when 
        referring to an Indian reservation.
        3.  He also mentioned one departmental letter which indicated 
        that the Executive Department had a different construction of 
        the Act at the time of enactment than it has now. This 1936 
        letter mentioned that the term ``Indian'' referred to all 
        Indians who are members of any recognized tribe that was under 
        federal jurisdiction at the date of the Act.
    These three arguments were enough to persuade the majority of the 
Court that there was no ambiguity whatsoever and, therefore, decades of 
Executive interpretation of the statute as allowing transfer of land 
into trust as long as the tribe was now, meaning at the time of the 
proposed land transfer into trust, under federal jurisdiction was put 
to an end. Although the Secretary of the Interior and the tribes argued 
that there was no policy reason whatsoever to limit the statute to 
tribes under federal jurisdiction as of 1934 and that such an 
interpretation went against the very purpose of the statute, the Court 
just bluntly stated ``We need not consider these competing policy views 
because Congress use of the word ``now'' speaks for itself.''
    Justice Stevens penned an interesting dissent where he took the 
position that since the word ``now'' only appeared in the definition of 
``Indian'' but not in the definition of ``Indian tribe,'' the 
restriction did not apply to tribes. Thus he concluded ``The plain text 
of the Act clearly authorizes the Secretary to take land into trust for 
Indian tribes as well as individual Indians, and it places no temporal 
limitation on the definition of Indian tribes.'' The Act defined 
``tribe'' as follows: ``The term ``Tribe'' wherever used in this Act 
shall be construed to refer to any Indian tribe, organized band, 
pueblo, or the Indians residing on one reservation.''
    There are many textual arguments, besides the arguments made by 
Justice Stevens, to support Justice Stevens' understanding of the Act. 
As pointed by one scholar, section 479 defines the term ``Indian'' to 
``include all members...'' In other words, the statute does not say the 
term Indians ``shall be limited to....'' \1\
---------------------------------------------------------------------------
    \1\ See Scott N. Taylor, Taxation in Indian Country after Carcieri 
v. Salazar, 36 Wm. Mitchell L. Rev. 590 (2010).
---------------------------------------------------------------------------
    At best, the use of the words ``now under federal jurisdiction'' 
made the section ambiguous. When faced with an ambiguity in a statute 
enacted for the benefit of Indians, courts are supposed to construe the 
statute liberally and resolve ambiguities to the benefit of the 
beneficiaries of the trust, the Indian tribes. So what is the meaning 
of Carcieri? To me, it means that if there is one tiny possibility to 
construe a statute to the detriment of Indians and Indian tribes, this 
Court will do it. In other words, the Indian canon of statutory 
construction has not been eliminated, it has been reversed: from all 
ambiguities being construed to the benefit of Indians, it has become 
``all ambiguities have to be construed to the detriment of Indians.'' 
The next section discusses the reasons for, and importance of, this 
canon of statutory construction.
The Indian canon of statutory construction and the trust doctrine.
    Under the Indian canon, statutes enacted for the benefit of Indians 
are supposed to be liberally construed and ambiguous expressions 
resolved in their favor. It is true that the Supreme Court has not used 
the Indian canon consistently, especially recently.\2\ Although one 
reason for this is that in many cases, the Court refused to find an 
ambiguity to start with, another reason is that some Justices think 
that the canon is just a technical or grammatical canon, just like some 
of these Latin phrase canons. Under this view, the Indian canon is not 
a substantive canon but one that courts are free to use or not, at 
their discretion. Proponents of this view take the position that the 
Indian Canon was first used out of judicial grace because Indians were 
``weak and defenseless.'' In other words, courts just felt sorry for 
the tribes. This position misunderstands the reasons for the Indian 
canon. As explained by the editors of the leading treatise on federal 
Indian law,
---------------------------------------------------------------------------
    \2\ See for instance, Chickasaw Nation v. United States, 534 U.S. 
84 (2001).
---------------------------------------------------------------------------
    Chief Justice Marshall grounded the Indian law canons in the value 
of structural sovereignty, not judicial solicitude for powerless 
minorities... The consequence of understanding the Indian law canons as 
fostering structural and constitutive purposes are quite significant. 
The implementation and force of the canons do not turn on the ebb and 
flow of judicial solicitude for powerless minorities, but instead on an 
understanding that the canons protect important structural features of 
our system of governance.\3\
---------------------------------------------------------------------------
    \3\ Cohen's Handbook of Federal Indian Law, 2005 Edition, at 123.
---------------------------------------------------------------------------
    As eloquently explained by the late professor Philip Frickey, Chief 
Justice Marshall treated treaties made between the United States and 
the Cherokees as quasi constitutional documents and interpreted them 
the way he would interpret a Constitution.\4\ Treaties made with Indian 
tribes can be viewed as documents incorporating the Indian nations into 
the United States political system as domestic dependent sovereigns. 
Marshall recognized that because of the commerce power, the treaty 
power and the war power, Congress had plenary authority over Indian 
tribes. As such, the United States was able to bargain with the tribes 
from a position of strength. Marshall also knew that the actions of the 
United States in this domain could not be judicially challenged. In 
order to counter the plenary power of Congress in this area, he devised 
rules of treaty interpretation which favored this under-enforced norm, 
incorporation of tribes as domestic dependent sovereigns through 
treaty-making. Eventually, the treaty power and the war power were no 
longer used by Congress to assume power over Indian tribes. However, 
the power remained plenary because of the trust doctrine.\5\ Pursuant 
to this trust power, Congress began to assert power over Indian tribes 
through regular legislation rather than through treaties. This explains 
why certain rules applicable to the interpretation of Indian treaties 
should also be applicable to Indian legislation.
---------------------------------------------------------------------------
    \4\ Philip P. Frickey, Marshalling Past and Present: Colonialism, 
Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. 
L. Rev. 381, at 408-411 (1993).
    \5\ See United States v. Kagama, 118 U.S. 375 (1884).
---------------------------------------------------------------------------
    At times, the Court has stated that the Indian canon are ``rooted 
in the unique trust relationship between the United States and the 
Indians.'' \6\ That is true enough but, unfortunately, some Justices 
also misunderstand the trust doctrine and think that the doctrine was 
created just because Indians are weak and defenseless.
---------------------------------------------------------------------------
    \6\ See Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)
---------------------------------------------------------------------------
    Where does the trust doctrine come from? \7\
---------------------------------------------------------------------------
    \7\ For an excellent exposition of the trust doctrine and its 
evolution, see Reid Chambers, Compatibility of the Federal Trust 
Responsibility with Self Determination of Indian Tribes: Reflections 
and Development of the Federal Trust Responsibility in the 21st 
Century, Rocky Mountain Min. L. Found. Paper No. 13A (2005).
---------------------------------------------------------------------------
    Some have traced its origin to Marshall's famous reference in 
Cherokee Nation v. Georgia, \8\ that the relationship between the 
United States and the tribes resembled that ``of a Guardian to a 
Ward.'' Others have stated that it comes from the huge amount of land 
transfers from the tribes to the United States.\9\ Under that theory, 
the trust doctrine is really derived from treaties and acts of Congress 
since that is the way such land transfers were effected. Other Scholars 
take the position that the trust doctrine originates from the Court's 
use of the doctrine of discovery according to which, the United States 
obtained ``ultimate'' title to all Indian lands within the United 
States.\10\ Under that theory, since the doctrine of discovery was a 
doctrine of international law, the trust doctrine can be considered as 
derived from international law, at least as conceived by Chief Justice 
John Marshall.
---------------------------------------------------------------------------
    \8\ 30 U.S. 1, at 54 (1831).
    \9\ See Mary Christina Wood, Indian Land and the Promise of Native 
Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471 
(1994).
    \10\ See Robert J. Miller, Native America, Discovered and 
Conquered, (2006) at 166 (Stating ``The trust doctrine plainly had its 
genesis in the discovery Doctrine.'')
---------------------------------------------------------------------------
    I think all these scholars are correct. The trust doctrine is of 
course a judicially created doctrine. However, the trust also did arise 
from both the treaties signed with the Indian tribes and doctrines of 
international law, such as the doctrine of discovery. Acts of Congress, 
while not creating the doctrine, have added specific trust duties and 
thus further refined the trust doctrine and defined its contours. It is 
my position that, properly understood, the trust doctrine is a doctrine 
of ``incorporation.'' It is the legal doctrine that succeeded to treaty 
making in politically and legally incorporating Indian tribes as quasi 
sovereign political entities within the federal system.
    The trust doctrine and therefore the Indian canon of statutory 
construction are closely connected to the constitutional power of 
Congress to enact statutes in Indian Affairs. Although the power of 
Congress over Indian Affairs is said to be plenary, the Court has given 
different reasons for such power. During the Allotment era (1880's--
1934), the power was thought to come from two sources: first, the 
Congress was the trustee for the Indian tribes, and secondly, under the 
doctrine of discovery, the United States had ``ultimate title'' to all 
Indian lands.\11\ Starting in the 1970's, the Court took the position 
that the power of Congress was really derived from the Indian Commerce 
clause and the treaty clause.\12\ The power was still plenary, except 
that Congress could no longer violate the constitutional rights of 
Indians,\13\ unless it was truly for their benefit.\14\ In other words, 
the trust doctrine still played a role in augmenting the power that 
Congress possessed over Indian affairs. The Indian Canon is a 
substantive rule of statutory construction because it is derived from 
the trust doctrine and therefore connected to the plenary power of 
Congress over Indian Affairs, itself derived from the Constitution's 
Commerce clause.
---------------------------------------------------------------------------
    \11\ See United States v. Kagama, 118 U.S. 375 (1886), Cherokee 
Nation v. Hitchcock, 187 U.S. 294 (1902).
    \12\ See Morton v. Mancari, 417 U.S. 535 (1974).
    \13\ See Delaware v. Weeks, 430 U.S. 73 (1977).
    \14\ See United States v. Sioux Nation, 448 U.S. 371 (1980),
---------------------------------------------------------------------------
    Why is the Court abandoning these traditional principles of federal 
Indian law? I have in previous writings suggested that it has to do 
with the Court's misconception about the trust doctrine, and its 
refusing to include Indian tribes under a third sphere of sovereignty 
within our federalist system.\15\ As tribes become more politically 
sophisticated, more economically self-sufficient, and as Indians become 
more educated, it has become hard to view them as weak and defenseless. 
If the Court takes the position that the trust doctrine, and all the 
legal principles derived from it, only exists to protect weak and 
defenseless Indians, then no wonder it has become reluctant to apply 
such legal principles. If Tribes are not viewed as quasi sovereign 
governmental entities within our Federalist system, then there is a 
real danger that the Court will view them as regular economic actors 
and will abandon the cardinal principles of federal Indian law.
---------------------------------------------------------------------------
    \15\ See Alex Tallchief Skibine, Redefining the Status of Indian 
Tribes Within ``Our Federalism'': Beyond the Dependency Paradigm, 38 
Conn. L. Rev. 667 (2006).
---------------------------------------------------------------------------
2. History related to section 5 of the IRA: from no standards to too 
        many standards?
    From 1778 until 1871, the United States signed treaties with Indian 
tribes. In those treaties, the tribes ceded millions of acres to the 
United States and acknowledged their political dependence on the 
militarily stronger nation. In return, the United States set aside 
reservations for Indian tribes and promised that it would secure such 
reservations for the exclusive use of the Indian tribes. Except for 
land purchased by tribes on the open market and held in fee simple, all 
lands held by Indian tribes, even tribal treaty lands, are said to be 
held in trust by the United States. It has been estimated that by the 
1880's, the amount of lands set aside for Indian tribes under such 
treaties was around 138 million acres.\16\
---------------------------------------------------------------------------
    \16\ See County of Yakima v. Confederated Tribes, 502 U.S. 251, 
255-56 (1992).
---------------------------------------------------------------------------
    Starting in the 1880's, the United States adopted a policy of 
trying to assimilate the Indians into the mainstream of American 
society. One aspect of this policy was to transform Indians from 
hunters into farmers. To this end, the United States enacted the 
General Allotment Act of 1887,\17\ the purpose of which was to break up 
the tribal land base by allotting Indian reservations. This meant that 
the tribal land base would be split up into allotments, generally of 80 
or 160 acres of land, and given to each individual tribal member. These 
allotments were to be held in trust for the individual tribal members. 
The rest of the tribal land was considered ``surplus'' and made 
available for sale to non-Indians.
---------------------------------------------------------------------------
    \17\ 25 U.S.C. 331 et seq.
---------------------------------------------------------------------------
    Initially, the United States believed that as a result of the 
treaties, the reservations could not be allotted without the consent of 
the tribes and therefore attempted to get the tribes to agree to the 
allotment of their reservations. The U.S. Supreme Court eventually 
held, however, that the treaties could be abrogated by the United 
States unilaterally even if such abrogation was alleged to be an 
unconstitutional taking of tribal property.\18\ Furthermore, the Court 
held that the constitutionality of such action was not justiciable 
because it amounted to a political question.\19\ It is estimated that 
as result of the allotment policy which was in effect between the 
1880's and 1934, Indian tribes lost over 90 million acres of land so 
that by the end of the allotment policy, the tribal land based had 
shrunk to 48 million acres.\20\
---------------------------------------------------------------------------
    \18\ Lonewolf v. Hitchcock, 187 U.S. 553 (1903).
    \19\ Id. at 565. The Court stated ``Plenary authority over the 
tribal relations if the Indians has been exercised by Congress from the 
beginning, and the power has always been deemed a political one, not 
subject to be controlled by the judicial department of the 
government.''
    \20\ See Readjustment of Indian Affairs: Hearings on H.R. 7902, 
House Committee on Indian Affairs, 73d Cong. 2d Sess. 16 (1934).
---------------------------------------------------------------------------
    Eventually, the allotment policy was deemed a failure and was 
repudiated with the enactment of the Indian Reorganization Act of 1934. 
Section 5 was enacted so that the Secretary of the Interior could start 
the process of correcting the wrongs inflicted on the tribes as a 
result of the Allotment policy
    Section 5 provides that the Secretary ``is hereby authorized, in 
his discretion, to acquire... any interest in lands...within or without 
existing reservations...for the purpose of providing land for 
Indians.'' \21\ There are some who argue that the Secretary has too 
much discretion in deciding to accept land into trust for the benefit 
of Indians. While this may have been true at one point, it is far from 
the truth today. In effect, from the tribes' perspective, the opposite 
is true.
---------------------------------------------------------------------------
    \21\ 25 U.S.C. 465.
---------------------------------------------------------------------------
    Earlier on, the Secretary took the position that his ``discretion'' 
on whether and when to take land into trust was absolute under the 
Act.\22\ Under this view, judicial review to question the exercise of 
his authority was lacking under the Administrative Procedure Act (APA) 
which provides that judicial review is not allowed in cases where the 
decision is left to the discretion of the agency by law.\23\ However, 
as a result of litigation challenging section 5 as a violation of the 
non-delegation doctrine,\24\ the Department eventually revised its 1980 
regulations in 1995.\25\ An examination of the 1995 amendments revealed 
that, if anything, it became more difficult for tribes to have lands 
placed into trust.
---------------------------------------------------------------------------
    \22\ See Florida v. Department of Interior, 768 F.2d 1248 (11th 
Cir. 1985). For an overview of the regulatory framework see Mary Jane 
Sheppard, Taking Land Into Trust, 44 South Dakota L. Rev. 681 (1998-
1999).
    \23\ See 5 U.S.C. 701 (a)(2) providing for no judicial review under 
the Act when ``agency action is committed to agency discretion by 
law.''
    \24\ See South Dakota v. United States, 69 F.3d 878 (8th Cir. 
1995), vacated at 117 S. Ct. 286. Under the non-delegation doctrine, 
Congress cannot delegate its legislative power to an agency without 
intelligible principles. See Whitman v. American Trucking, 531 U.S. 457 
(2001).
    \25\ See 45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, 
June 23 1995, and further amended at 60 FR 48894, Sept 21, 1995. The 
regulations are codified at 25 C.F.R. part 151.1 to 151.15.
---------------------------------------------------------------------------
    Since the 1980 regulations did not distinguish between on and off 
reservation acquisitions, a controversial part of the current 
regulations is the 1995 decision to treat on-reservation trust 
acquisitions differently than off-reservation acquisitions. Another 
controversial area are the criteria adopted by the Department in making 
its determinations to take land into trust. For on-reservation tribal 
acquisitions, there are 7 criteria (a-c, e-h).\26\ For off-reservation 
acquisition, the regulations add an additional 4 criteria, bringing the 
total to 11.
---------------------------------------------------------------------------
    \26\ Criterium (d) deals with trust acquisition for individual 
Indians which is not a topic of this paper.
---------------------------------------------------------------------------
    Some of these criteria are not controversial. For instance, 
concerning on-reservation (or contiguous) acquisition, the first 3 
standards ((a)-(c) as well as (g) are completely appropriate.\27\ Some 
other standards (e) and (f) may be more problematic. Under (e), the 
Secretary has to look at the impact on the State and its political 
subdivisions resulting from the removal of the land from the tax rolls, 
and under (f), at the jurisdictional problems and potential conflicts 
of land use which may arise.
---------------------------------------------------------------------------
    \27\ These standards are as follows: (a) The existence of statutory 
authority for the acquisition and any limitations contained in such 
authority; (b) The need of the individual Indians or the tribe for 
additional land; (c) The purpose for which the land will be used...(g) 
If the land to acquired is in fee status, whether the Bureau of Indian 
Affairs is equipped to discharge the additional responsibilities 
resulting from the acquisition of the land in trust status.''
---------------------------------------------------------------------------
    For off reservation trust acquisitions, the most controversial 
factor is (b) under which the Secretary is supposed to give greater 
scrutiny to the tribe's justification of anticipated benefits and to 
the concern raised by state and local officials, the farther the lands 
are from the reservation.
    Finally it should be noted that some in the Department must have 
been aware that the regulations were not perfect since the Department 
went through the lengthy and time consuming process of amending its 
prior regulations, publishing a final rule to this effect on January 
2001,\28\ only to have its implementation delayed until the rule was 
finally withdrawn on November 9, 2001.\29\ Among other things, the new 
regulation would have streamlined the process for on-reservation 
acquisitions while creating a strong presumption in favor of 
acquisition. The new regulation would also have created a procedure by 
which such presumption in favor of acquisition could be extended to 
tribes without reservations.
---------------------------------------------------------------------------
    \28\ 66 Fed. Reg. 3452.
    \29\ 66 Fed. Reg. 56608.
---------------------------------------------------------------------------
Should section 5 be amended to incorporate some standards curbing the 
        discretion of the Secretary?
    If there was no section 5 and we were enacting a new law today, I 
would support adding some standards controlling the discretion of the 
Secretary. However, we are here looking at more than 70 years of 
history implementing this section. In those 70 years, the Department 
has enacted comprehensive regulations curbing its discretion, and 
containing extensive procedures which guarantee that all concerned 
parties will be consulted before land is placed into trust under 
section 5.
    Make no mistake, I do not think the existing regulations are 
perfect, but the way to amend them is through other regulations as was 
tried in 2001.\30\ I am afraid that once we open the door to add more 
standards, the floodgates will open, the suggestions will pour in. 
There will be no end in sight. Some might even try to use this 
legislation to amend the Indian Gaming Regulatory Act of 1988. I think 
this Carcieri decision demands a quick and straight forward fix. There 
will be time, later, if it wishes to do so, for Congress to take a more 
comprehensive look at issues raised by the fee to trust program.
---------------------------------------------------------------------------
    \30\ For a summary of problems with the current regulations, mostly 
from a non-tribal perspective, see Amanda D. Hettler, Note, Beyond a 
Carcieri Fix: The Need for Broader Reform of the Land-Into-Trust 
Process of the Indian Reorganization Act of 1934, 96 Iowa L. Rev. 1377 
(2011).
---------------------------------------------------------------------------
3. The need to ratify the previous land transfers.
    Both bills have a retroactive provision which would ratify all the 
fee to trust land transfers made to tribes which may have not been 
``under federal supervision'' as of 1934. Until this year, I would have 
thought that these provisions may not have been necessary. However on 
January 21, 2011, the D.C. Circuit issued its decision in Patchak v. 
Salazar,\31\ where the court held, among other things, that the QTA 
(Quiet Title Act) did not preserve, in all circumstances, the sovereign 
immunity of the United States in a suit challenging a previous transfer 
from fee to trust to an Indian tribe. Although other circuits have held 
otherwise, I read this decision as creating a possibility that many of 
these land transfers can now be challenged, at least if the law suit is 
filed within the jurisdiction of the D.C. Circuit. Of course there may 
be other legal defenses available to the United States and I am not 
taking the position that these challenges would end up being 
successful.
---------------------------------------------------------------------------
    \31\ 632 F.3d 702.
---------------------------------------------------------------------------
4. Connection between section 5 and off reservations gaming issues.
    Many people these days are looking at transfer of land into trust 
for the benefit of Indian tribes through the prism of Indian gaming. 
The fear here is that Indian tribes will first obtain some trust land 
far from existing Indian reservations but in the midst of non-Indian 
communities and open up a casino in a previously quiet residential 
area.
    Indian gaming is of course regulated pursuant to another law, IGRA. 
Under IGRA, gaming can only be conducted on Indian land. Indian land 
has a technical definition.\32\ For present purpose, the relevant 
provision is section 2719 which contains a general prohibition for 
gaming on off-reservation lands acquired after enactment of IGRA in 
1988. However, there are exceptions. For our purpose, I think the more 
controversial issue is that the prohibition on gaming does not apply to 
lands taken into trust if: 1) They are part of a settlement of a land 
claim, or 2) They are taken as part of the initial reservation of a 
newly acknowledged tribe, or 3) If the lands are part of the 
restoration of lands to a restored tribe.\33\
---------------------------------------------------------------------------
    \32\ 2703 Defines Indian lands as land within Indian reservations 
and any trust lands over which an Indian tribes exercises governmental 
power.
    \33\ Gaming can also be conducted on newly acquired trust lands 
under the so-called two part Secretarial determination. Under this 
exception, the governor of the state has to agree with the 
determinations made by the Secretary of the Interior and these 
determinations can only be made after consultation with state and local 
officials. I think this exception is too far removed from the initial 
decision to take land into trust under section 5 because there are many 
other procedural hurdles and safeguards already in place under IGRA. It 
should not concern us here.
---------------------------------------------------------------------------
    However, the fact that there is no outright gaming prohibition on 
such lands does not mean that gaming can be conducted on such lands. 
Any casino type gaming, part of Class III gaming, can only be conducted 
pursuant to a tribal state compact. These compacts are only valid if 
approved by the Secretary and the governor and/or legislature of the 
state. Gaming under such compacts is controversial and complex, 
however, it should play no role in this particular simple legislation 
which just attempts to fix a discrete problem created by the Carcieri 
decision. So the only meaningful issue left is the possibility of 
having what is known as Class II gaming conducted on such newly 
acquired trust lands by a newly recognized or restored tribe. Class II 
gaming consists of bingo, and bingo like games, and certain non bank 
card games. Class II gaming is regulated by the tribes and the National 
Indian Gaming Commission.
    While I do not want to minimize the potential concerns relating to 
this issue, my view at this time is that any changes in the law 
concerning Class II gaming on newly acquired trust lands by newly 
recognized or restored tribes should more appropriately be dealt with 
by amending section 2719 of IGRA and not in a bill amending section 5 
of the IRA. Besides, 25 CFR Part 292 already contains extensive 
standards interpreting all the exceptions mentioned in section 2719 
(section 20 of IGRA).
                                 ______
                                 
    Mr. Young. Thank you, and now Mr. Mitchell. I will give you 
an extra two minutes, too, if you want it.
    Mr. Mitchell. Certainly, Mr. Chairman, I would be happy to 
have an extra two minutes.

 STATEMENT OF DONALD C. MITCHELL, ATTORNEY AT LAW, ANCHORAGE, 
                             ALASKA

    Mr. Mitchell. Thank you, Mr. Chairman.
    In April of 2009, when the Full Committee held its first 
hearing on this matter, then-Chairman Rahall and Ranking Member 
Hastings invited me to participate to make the case about 
whether it is a good or a bad policy result in the Twenty-First 
Century that the Supreme Court got it right with respect to 
what Congress intended in 1934.
    At that time, I was invited in because I was an honest 
broker. I did not have a dog in the fight, and people just 
wanted some straight analysis. As I have indicated in my 
written testimony, I now have a client interest in this matter 
and I wanted to make sure that the Subcommittee was aware of 
that.
    I would only make three points over and above the points 
made in my written testimony.
    First, the Indian Commerce Clause says that it is Congress, 
not the Bureau of Indian Affairs, not the Federal courts, but 
Congress that has exclusive authority to decide the nation's 
Indian policy. That is a truism. Everyone knows that, and then 
that observation of that very important constitutional 
principle is then observed too frequently in the breach.
    The Bureau of Indian Affairs, in my experience, which as 
the Chairman knows goes back over 30 years, the Bureau of 
Indian Affairs too frequently views Congress as either an 
institution to be ignored or an institution to be circumvented, 
and part of the problem--it is not that they are bad people--I 
have watched that in both Democratic and Republican 
Administrations--it is in the nature of the Bureau of Indian 
Affairs' bureaucracy.
    We saw that in the 110th Congress when, as you know, then 
Ranking Member Hastings asked the Department for the kind of 
information that this Committee would need in order to 
legislate rationally based upon the facts. You just had a 
colloquy with the last panel trying to get some facts about 
what are the implications of this. Well, Ranking Member 
Hastings asked for that information a year and a half ago, and 
he basically was stonewalled by the Department, and I think 
that that is an issue that is far beyond the merits of Indian 
legislation, and I have recommended in my testimony that no 
action be taken by the Subcommittee until such time as the 
Department gives the Subcommittee the information that it would 
need in order to know what the real ramifications of the 
Carcieri decision are. That is my first point.
    My second point is, as you know, there was a high degree of 
energy brought by the National Native American Community to 
convince the 111th Congress to legislate last year. Congress 
declined to do so. Well, if this is such a terrible decision 
and if all we are going to do is return to a wonderful status 
quo, why the push back from people like Senator Feinstein and 
others?
    I would suggest, as I have suggested in my written 
testimony, it is for two reasons. One, is because of the tribal 
recognition issue that has been going on in the Department; and 
the second is because under Section 5 of the IRA the experience 
has been, regardless of some of the rhetoric we heard this 
morning, that the Department views land into trust decision, 
when you get to the heart of the matter, as a quasi private 
matter between the Department and an Indian tribe that may just 
have been invented out of whole cloth.
    Now, until those two issues are faced up to and whether 
they should be faced up to is an issue for Congress, not for 
me, it is way above my pay grade, but I believe that until 
those two issues are faced up to by the Congress that the 
proponents of this legislation are going to continue to find 
that this legislation is going to get the same push back in the 
112th Congress that it got in the 111th Congress.
    And then the last thing I would like to say in a related 
vein is that what I just made to you were policy matters. On 
the tribal recognition issue, I have found out, being involved 
in the Cowlitz litigation, who are the members of the Cowlitz 
Tribe. According to the record of decision you can be 
considered a Cowlitz Indian if you can show that you are one-
sixteenth descendent. If you do the math, that means that you 
can have one great-great-great grandparent who was a Cowlitz 
Indian, and that makes you entitled to all of the benefits that 
are given to what I would call more traditional Indian tribes.
    Is that really a good policy result or a bad policy result 
in the twenty-first century? I don't know. It is not my 
decision. It is the Congress's. But if the Congress will not 
face up to that you are going to end up with the same snarl 
that you had during the 111th Congress. That is at least the 
way I see the dice rolling on this.
    Then the last thing I would like to say very briefly is 
that there is a legal reason for the Congress to face up to 
these issues.
    In 1977, there was an American Indian Policy Review 
Commission upon which the Chairman served, and in that 
Commission recommendation there is a recommendation on page 436 
that Congress enact legislation to establish a procedure for 
recognizing new Indian tribes. That was the recommendation of 
the Commission.
    Now, that may be a good policy thing to do, that may be a 
bad policy thing to do, but what it was it was consistent with 
the Indian Commerce Clause, which is that this is a matter for 
Congress, not for the Bureau of Indian Affairs.
    The Chairman of the Commission, Senator Abourezk, 
introduced a bill in 1977 that would have established a 
recognition procedure. There were two bills introduced over 
here. At that time, as the Chairman knows, Representative 
Roncalio from Wyoming was the Chairman of the Subcommittee. 
There was a hearing on--there were several hearings on those 
bills. In the middle of that congressional process the 
Department just decided to promulgate regulations establishing 
its own tribal recognition process.
    Well, there was a representative of the Solicitor's Office 
sitting exactly at this table, in 1978, who told Chairman 
Roncalio that, well, gee, you know, there is really no 
statutory authorization for these regulations, but we are going 
to do it anyway. You can look it up in your own hearing record, 
Mr. Chairman.
    Now I mention this because some day there is going to be 
litigation about this. There have been a couple of shots taken 
in the District Court that the entire recognition process is 
ultravirus. So far they have lost, but I would point out that 
Governor Carcieri list in the District Court. He lost in the 
First Circuit. But the way I see the jurisprudence of the 
present U.S. Supreme Court, if that issue ever gets to the 
Court, and all of a sudden the Court says that since 1978 the 
Department has never had any authority to be out creating more 
than 50 tribes, and I understand there are 60 more sitting in 
the can in California, if people think that Carcieri has 
destabilized their lives, they don't know about 
destabilization.
    Similarly, in Section 5 of the IRA----
    Mr. Young. Mr. Don, I love you, but let us not go through 
the whole history of this thing.
    Mr. Mitchell. Well, one last statement, Mr. Chairman, and 
then I will--I have overstayed my welcome as I always do. But 
Section 5 of the IRA has no standards for taking land into 
trust. That is also a legal problem in administrative law. That 
issue has also--there has been a shot taken in the District 
Court and that shot has not prevailed, but again, it took 11 
years to go from the record of decision to the U.S. Supreme 
Court decision in Carcieri. If all of a sudden we find out some 
day long after we are gone that Section 5 itself is an 
unconstitutional delegation of authority, and that every single 
land into trust acquisition that has been made since 1934 is 
void, that is a huge problem.
    Mr. Chairman, in conclusion, the reason I go into all that 
is that this is a congressional responsibility. If the Congress 
does not want to face up to the issues I have identified, that 
is its prerogative, but this issue is way more complicated than 
just give us a clean fix and pretend that the Carcieri decision 
never happened.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Mitchell follows:]

     Statement of Donald Craig Mitchell on H.R. 1234 and H.R. 1291

    Mr. Chairman, members of the Subcommittee, my name is Donald Craig 
Mitchell. I am an attorney in Anchorage, Alaska, who has been involved 
in Native American legal and policy issues from 1974 to the present day 
in Alaska, on Capitol Hill, inside the U.S. Department of the Interior, 
and in the federal courts.
    From 1977 to 1993 I was Washington, D.C., counsel, then vice 
president, and then general counsel for the Alaska Federation of 
Natives, the organization Alaska Natives organized in 1967 to urge 
Congress to settle Alaska Native land claims by enacting the Alaska 
Native Claims Settlement Act (ANCSA). From 1984 to 1986 I was counsel 
to the Governor of Alaska's Task Force on Federal-State-Tribal 
Relations and authored the Task Force's report on the history of Alaska 
Native tribal status. From 2000 to 2009 I was a legal advisor to the 
leadership of the Alaska State Legislature regarding Alaska Native and 
Native American issues, including the application of the Indian Gaming 
Regulatory Act (IGRA) in Alaska.
    I also have written a two-volume history of the federal 
government's involvement with Alaska's Indian, Eskimo, and Aleut 
peoples from the Alaska purchase in 1867 to the enactment of ANCSA in 
1971, Sold American: The Story of Alaska Natives and Their Land, 1867-
1959, and Take My Land Take My Life: The Story of Congress's Historic 
Settlement of Alaska Native Land Claims, 1960-1971.
    I presently am researching and writing a book on the history of the 
IGRA.
    On April 1, 2009 I was invited by the Committee on Natural 
Resources to testify at the hearing the Committee held on that date on 
the ramifications of Carcieri v. Salazar, the decision the U.S. Supreme 
Court issued on February 24, 2009 in which the Court interpreted the 
intent of the 73d Congress embodied in the phrase ``recognized Indian 
tribe now under Federal jurisdiction'' (emphasis added) in section 19 
of the Indian Reorganization Act (IRA), Pub. L. No. 73-383, 48 Stat. 
984 (1934).
    I also am one of the attorneys who represents Clark County, 
Washington, and the City of Vancouver, Washington, in Clark County v. 
Salazar, U.S. District Court for the District of Columbia No. 1:11-cv-
278, a civil action that requests the District Court to review a final 
agency action in which Assistant Secretary of the Interior for Indian 
Affairs Larry Echo Hawk is attempting to reverse the holding of 
Carcieri v. Salazar by agency fiat. However, I am not testifying this 
morning in that capacity, and the views expressed in this testimony are 
entirely my own.
    I very much appreciate the opportunity to offer my analysis of--and 
recommendations regarding--H.R. 1234 and H.R. 1291, bills that 
Representatives Dale Kildee and Tom Cole have introduced whose 
enactment would reverse the holding of Carcieri v. Salazar.
        A.  The Subcommittee Should Take No Action on H.R. 1234 and 
        H.R. 1291 Until Secretary of the Interior Ken Salazar Provides 
        the Subcommittee the Information That Chairman Hastings It 
        Requested Almost Two Years Ago.
    In Carcieri v. Salazar, eight-members of the U.S. Supreme Court 
held that the 73d Congress intended section 5 of the IRA to delegate 
the Secretary of the Interior authority to take land into trust for a 
``recognized Indian tribe'' only if that ``recognized Indian tribe'' 
was ``under Federal jurisdiction'' on the date of enactment of the IRA, 
i.e., on June 18, 1934.
    Between 1978 when the Secretary of the Interior (with no statutory 
authority to do so) promulgated regulations that established a 
procedure to enable the Secretary to by unilateral agency action 
designate a group of individuals of Native American descent as a 
``federally recognized tribe'' and 2010, Congress (through its 
enactment of statutes), the Secretary (through his and her utilization 
of the aforementioned administrative procedure), and U.S. District 
Courts in California (acting in violation of the Indian Commerce Clause 
and in contravention of the constitutional doctrine of separation of 
powers) created 52 new ``federally recognized tribes.'' Compare tribes 
listed at 44 Fed. Reg. 7235 (1979) with tribes listed at 75 Fed. Reg. 
60810 (2010).
    In addition, since 1993 the Secretary of the Interior has asserted 
that there are more than 200 ``federally recognized tribes'' in Alaska. 
And of the 277 ``federally recognized'' tribes that the Secretary says 
existed in 1978, 66 are groups composed of individuals of Native 
American descent in California that no treaty or statute has designated 
as ``federally recognized tribes.'' And the Secretary's 1979 list lists 
groups such as the Seminole Tribe of Florida whose website states that 
the Seminole Tribe of Florida was not ``formed'' until 1957--see 
http:www.semtribe.com/History/Timeline.aspx.
    It is reasonable to assume both that a number of those ``federally 
recognized tribes'' in the continental United States may not have been 
``under Federal jurisdiction'' on June 18, 1934, and that prior to the 
Carcieri v. Salazar decision the Secretary of the Interior may have 
taken land into trust for some of those tribes pursuant to section 5 of 
the IRA. But, to date, Secretary of the Interior Ken Salazar has 
refused to provide the Committee on Natural Resources with any tribe-
specific information about those trust land acquisitions.
    On November 4, 2009 the Committee held a hearing on H.R. 3742, a 
bill Representative Kildee introduced in the 111th Congress whose text 
is similar, although not identical, to the text of H.R. 1234.
    Prior to the November 4, 2009 hearing, in a letter dated October 
30, 2009, Representative Doc Hastings, who at the time was Ranking 
Member and who now is Chairman of the Committee, requested Secretary 
Salazar to provide the Committee with information about the 
consequences of the Carcieri v. Salazar decision. But Secretary Salazar 
refused to provide the information.
    Instead, in a letter dated January 19, 2010 the Legislative Counsel 
of the Department of the Interior sent Representative Nick Rahall, the 
Chairman of the Committee, a written response to the questions 
Representative Hastings had posed in his letter.
    In that response, the Legislative Counsel informed Representative 
Rahall (and Representative Hastings) that ``the Department has not 
made, and does not intend to make a comprehensive determination as to 
which federally recognized tribes were not under federal jurisdiction 
on June 18, 1934,'' that ``the Department has not created any lists of 
tribes negatively impacted by the Carcieri decision,'' and that ``the 
Department has not undertaken a review of what land was acquired in 
trust for tribes that may not have been under federal jurisdiction on 
June 18, 1934.''
    After the Legislative Counsel stonewalled Representative Hastings's 
request for information that the Committee on Natural Resources needed 
in order to legislate, the Committee took no further action regarding 
H.R. 3742 during the 111th Congress. However, in the Senate, on August 
5, 2010 the Committee on Indian Affairs reported an amended version of 
S. 1703, a bill Senator Byron Dorgan, the Chairman of the Committee, 
had introduced whose text was identical to the text of H.R. 3742.
    The version of S. 1703 that the Committee reported contained a 
subsection (d) which states:
        (d)  STUDY; PUBLICATION.--
                (1)  STUDY.--The Secretary of the Interior shall 
                conduct, and submit to Congress a report describing the 
                results of, a study that--
                        (A)  assesses the effects of the decision of 
                        the Supreme Court in the case styled Carcieri 
                        v. Salazar (129 S. Ct. 1058) on Indian tribes 
                        and tribal lands; and
                        (B)  includes a list of each Indian tribe and 
                        parcel of tribal land affected by that 
                        decision.
                (2)  PUBLICATION.--On completion of the report under 
                paragraph (1), the Secretary of the Interior shall 
                publish, by not later than 1 year after the date of 
                enactment of this Act, the list described in paragraph 
                (1)(B)--
                        (A)  in the Federal Register; and
                        (B)  on the public website of the Department of 
                        the Interior.
    In its report on S. 1703 the Committee on Indian Affairs explained 
the history of subsection (d) as follows:
        Senator [Tom] Coburn offered an amendment [during the mark-up] 
        to require a study be prepared by the Department of the 
        Interior and submitted to Congress identifying the impact of 
        the Carcieri decision on Indian tribes and tribal lands. The 
        offered amendment would have required the study to be completed 
        prior to S. 1703 becoming effective. A second degree amendment 
        was agreed upon which would require the study to be submitted 
        within one year of enactment of S. 1703. The Committee intends 
        that the study shall not limit the Secretary's authority to 
        take land into trust for any tribe that is federally recognized 
        on the date the Secretary takes the land into trust, or cause 
        any delay with regard to any trust land acquisition authorized 
        by law. (emphasis added).
S. Rep. No. 111-247, at 9.
    The report does not explain why the proponent of the second degree 
amendment and the other members of the Committee on Indian Affairs who 
voted for the amendment believed that the Secretary of the Interior 
should be directed to provide this Congress with the information the 
report required, but that the members of the Committee did not need 
that information before they decided whether the Committee should 
report S. 1703.
    This Subcommittee should reject the Committee on Indian Affairs's 
rush to legislate, and instead should take the more reasoned approach 
that Senator Coburn originally proposed.
    To that end, I would urge the Subcommittee to take no action on 
H.R. 1234 and H.R. 1291 until Secretary Salazar provides the 
Subcommittee with the information Chairman Hastings requested in his 
October 30, 2009 letter and which the Secretary would have been 
required to submit to the 112th Congress if the 111th Congress had 
enacted the version of S. 1703 that the Committee on Indian Affairs 
reported.
    Should Secretary Salazar continue to refuse to provide that 
information, since the refusal of the executive branch to provide 
Congress with the information it needs to legislate should be a matter 
of bipartisan concern, I would urge the Chairman and Ranking Member to 
jointly introduce the original Coburn amendment as a stand-alone bill.
    When Secretary Salazar provides the information that Chairman 
Hastings requested, I would urge the Subcommittee to then hold field 
hearings in California and other states in which land is located that 
is subject to land-into-trust applications that have been submitted to 
the Department of the Interior by ``federally recognized tribes'' that 
acquired that legal status after June 18, 1934.
        B.  The Need to Evaluate the Ramifications of the Carcieri v. 
        Salazar Decision Presents a Long Overdue Opportunity for the 
        Subcommittee to Review the Department of the Interior's Tribal 
        Recognition and Land-into-Trust Policies.

        1.  Carcieri v. Salazar Was Correctly Decided and Its Holding 
        Is Consistent With the Larger Intent of the 73d Congress.
    According to the Senate Committee on Indian Affairs,
        The Carcieri decision may have the detrimental effect of 
        creating two classes of Indian tribes--those who (sic) were 
        ``under federal jurisdiction'' as of the date of enactment of 
        the Indian Reorganization Act in 1934 for whom land may be 
        taken into trust, and those who were not.
    In making that policy argument, the Committee on Indian Affairs 
(and the National Congress of American Indians (NCAI), the National 
Indian Gaming Association, and other proponents of a Carcieri ``fix'') 
now only half-heartedly argue that the U.S. Supreme Court misconstrued 
the intent of the 73d Congress embodied in the word ``now'' in the 
phrase ``recognized Indian tribe now under Federal jurisdiction'' in 
section 19 of the IRA.
    For good reason.
    Since the 1970s the mythology that has swirled around the IRA is 
that in 1934 the 73d Congress intended the IRA to codify the 
abandonment of social and economic assimilation as the objective of 
Congress's Indian policy.
    Indeed, last month in testimony he presented to the Senate 
Committee on Indian Affairs, Professor Frederick Hoxie, the author of A 
Final Promise: The Campaign to Assimilate the Indians, 1880-1920 
(1984), told the Committee that:
        By ending the allotment policy and providing for the future 
        development, and even expansion, of reservation communities, 
        Congress endorsed the idea that individuals could be both U.S. 
        and tribal citizens. For the first time in the nation's 
        history, the federal government codified in a general statute 
        [i.e., in the IRA] the idea that tribal citizenship was 
        compatible with national citizenship and that ``Indianness'' 
        would have a continuing place in American life.
Testimony of Frederick E. Hoxie on ``The Indian Reorganization Act--75 
Years Later'' (June 23, 2011), at 2.
    But with all due respect to Professor Hoxie, his reading of the IRA 
and its legislative history misconstrues the intent of the members of 
the Senate and House Committees on Indian Affairs who wrote the IRA. 
Because the historical record reveals that the members agreed to stop 
the further allotment of Indian reservations not because the members 
had decided that social and economic assimilation should no longer be 
the objective of Congress's Indian policy, but rather because 
Commissioner of Indian Affairs John Collier convinced them that the 
allotment of reservations had been counterproductive to the achievement 
of Indian social and economic assimilation.
    Here is how Commissioner Collier explained his view of the 
situation in 1933 when he assumed office:
        It is clear that the allotment system has not changed the 
        Indians into responsible, self-supporting citizens. Neither has 
        it lifted them to enter into urban industrial pursuits. It has 
        merely deprived vast numbers of them of their land, turned them 
        into paupers, and imposed an ever-growing relief problem on the 
        Government.
Report of the Secretary of the Interior (1933), at 108.
    In making that case Commissioner Collier pointedly did not suggest 
that encouraging Indians to be ``responsible, self-supporting 
citizens'' should no longer be the objective of Congress's Indian 
policy.
    A year later when Commissioner Collier testified before the Senate 
and House Committees on Indian Affairs on the bills that the 73d 
Congress would enact as the IRA his testimony was intentionally 
disingenuous insofar as his private agenda to abandon social and 
economic assimilation as the object of Indian policy was concerned. The 
late Vine Deloria, Jr., a former executive director of NCAI and a 
scholar of deserved reputation, has described Collier's spin as 
follows:
        Throughout much of this discussion [during one of the hearings 
        the House Committee on Indian Affairs held on the IRA], Collier 
        concentrated on the difficulties inherent in the existing 
        governmental policy of assimilation--with much resistence from 
        the many committee members who favored integrating Indians into 
        white society. The commissioner tried to explain that the 
        ultimate goal of assimilation was not to be completely 
        abandoned; his argument seemed ambiguous by design.
The Nations Within: The Past and Future of American Indian Sovereignty 
(1984), at 83.
    The history of the difference between the views of Commissioner 
Collier on Indian social and economic assimilation and the views of the 
members of the Senate and House Committees on Indians Affairs remains 
relevant today because the definition of the term ``Indian'' in section 
19 of the IRA, i.e., the section that contains the phrase ``recognized 
Indian tribe now under Federal jurisdiction,'' was written by the 
Senate Committee on Indian Affairs. See H.R. Rep. No. 73-2049, at 8 
(1934)(IRA Conference Report explaining that in section 19 of the IRA 
``the definitions in section 18 of the Senate bill were agreed upon'').
    And no member of the Senate Committee on Indian Affairs was more 
outraged when he realized that he and other members of the 73d Congress 
had been conned by Commissioner Collier into giving the Bureau of 
Indians Affairs (BIA) authority to ``tribalize'' Indian policy than the 
Chairman of the Committee, Senator Burton Wheeler of Montana. As 
Senator Wheeler subsequently explained in his autobiography:
        I must confess that there was one bill I was not proud of 
        having enacted. It was drafted under the supervision of John 
        Collier, the new Commissioner of Indian Affairs, immediately 
        after FDR became President...I was then chairman of the Senate 
        Indian Affairs Committee and Collier asked me to introduce the 
        bill in the Senate. (Representative Edgar Howard of Nebraska 
        introduced a companion measure in the House.) I did so without 
        even having read the bill, which was being given a big 
        publicity buildup.
Yankee From the West: The Candid Story of the Freewheeling U.S. Senator 
From Montana, at 314-315 (1962).
    Senator Wheeler was so outraged that in 1937 he and Senator Lynn 
Frazier of North Dakota, who during the 73d Congress had been Ranking 
Member of the Committee on Indian Affairs, introduced S. 1736, 75th 
Cong. (1937), a bill whose enactment would have repealed the IRA.
    After holding hearings on the BIA's implementation of the IRA, in 
1939 the Senate Committee on Indian Affairs reported an amended version 
of the original Wheeler bill. In its report on the measure, the 
Committee railed that the BIA's implementation had
        Tend[ed] to force the Indians back into a primitive state; that 
        tribal ceremonials, native costumes and customs, and languages 
        are being both encouraged and promoted in the administration of 
        this act; that the educational program of the Bureau of Indian 
        Affairs has been revised to accomplish this purpose in place of 
        the regular school courses in white schools.
S. Rep. No. 76-1047, at 3 (1939).
    In its summary of the problems with the IRA the report concludes by 
noting that ``the act [i.e., the IRA] is contrary to the established 
policy of the Congress of the United States to eventually grant the 
full rights of citizenship to the Indians.'' Id. 4.
    Four years later, Senator Wheeler (and six cosponsors) introduced 
another repeal bill, S. 1218, 78th Cong. (1943), which the Senate 
Committee on Indian Affairs again reported.
    When the members of this Subcommittee are considering the policy 
choices that the sponsors of H.R. 1234 and H.R. 1291 are requesting the 
Subcommittee to recommend that the 112th Congress adopt, I would urge 
every member to read the Senate Committee on Indian Affairs's report on 
S. 1218 in its entirety. Among other reasons, because with respect to 
taking more land into trust, in its report the Committee--whose 
membership included Senator Wheeler and whose Chairman was Senator 
Elmer Thomas of Oklahoma, who had been a senior member of the Committee 
during the 73d Congress--recommended that:
        The authority for the Secretary of the Interior to create new 
        Indian reservations at this late day should be withdrawn by the 
        repeal of the act. The reservation system is obnoxious to all 
        thinking citizens and has been outlawed in the public mind for 
        50 years. There was no justification for his proclamation of 
        new reservations in the United States proper, and now he 
        proposes to proclaim new reservations in Alaska against the 
        protest of Indians and others there, his activities in this 
        matter should be curbed. The repeal of the act is the simplest 
        way to accomplish this.
S. Rep. No. 78-1031, at 15 (1944).
    The point here is not that Senators Wheeler and Thomas and the 
other members of the Senate Committee on Indian Affairs were correct 
that social and economic assimilation should be the objective of 
Congress's Indian policy. Reasonable individuals can have differing 
views regarding whether they were.
    Rather, the point is that in 1934 that was the policy objective 
that Senators Wheeler and Thomas and the other members of the Senate 
Committee on Indian Affairs intended the 73d Congress's enactment of 
the IRA to advance.
    On December 17, 2010, by which time it was clear that the 111th 
Congress would not pass S. 1703 or any other Carcieri ``fix'' before it 
adjourned sine die, Assistant Secretary Echo Hawk signed a Record of 
Decision in which he announced a final decision to take a parcel of 
land in Clark County, Washington, into trust for the Cowlitz Indian 
Tribe (CIT). The CIT is an organization whose membership is composed of 
individuals who may be 1/16 descendants--i.e., great-great 
grandchildren--of Indians who during the nineteenth century lived along 
the Cowlitz River.
    The validity of Assistant Secretary Echo Hawk's decision to take 
land into trust for the CIT is being litigated in Clark County v. 
Salazar. What can be said about Assistant Secretary Echo Hawk's 
decision here is that the members of the CIT did not become a 
``federally recognized tribe'' until the Secretary of the Interior 
declared them to be one in 2002. In order to find that section 5 of the 
IRA delegated the Secretary of the Interior authority to take land into 
trust for a ``federally recognized tribe'' that did not exist until 68 
years after the enactment of the IRA, Assistant Secretary Echo Hawk 
interpreted the intent of the 73d Congress embodied in the phrase 
``recognized Indian tribe now under Federal jurisdiction'' in section 
19 of the IRA as follows:
        [W]hatever the precise meaning of the term ``recognized Indian 
        tribe'' [in section 19 of the IRA], the date of federal 
        recognition does not affect the Secretary's authority under the 
        IRA. In Section 19 of the IRA, the word ``now'' modifies only 
        the phrase ``under federal jurisdiction'', it does not modify 
        the phrase ``recognized Indian tribe.'' As a result, ``[t]he 
        IRA imposes no time limit upon recognition'', the tribe need 
        only be ``recognized'' as of the time the Department acquires 
        the land into trust, which clearly would be the case here, 
        under any conception of ``recognition.'' The Cowlitz Tribe's 
        federal acknowledgment in 2002, therefore, satisfies the IRA's 
        requirement that the tribe be ``recognized.'' (emphasis added).
    It would be interesting to know what Senators Wheeler and Thomas 
and the other members of the Senate and House Committees on Indian 
Affairs during the 73d Congress would think of that interpretation of 
the intent of the 73d Congress embodied in the definition of the term 
``Indian'' in section 19 of the IRA.
        2.  Rather Than Making Its Own Decision Regarding the Intent of 
        the 73d Congress Embodied in the Phrase ``Recognized Indian 
        Tribe Now Under Federal Jurisdiction'' in Section 19 of the IRA 
        the Subcommittee Should Use Its Consideration of H.R. 1234 and 
        H.R. 1291 as a Procedural Occasion to Recommend to the 112th 
        Congress Tribal Recognition and Land-Into-Trust Policies That 
        Are Appropriate for the Twenty-First Century.
    The intent of the 73d Congress embodied in the IRA and the extent 
to which the U.S. Supreme Court correctly interpreted that intent in 
Carcieri v. Salazar are interesting--and indeed analytically 
fascinating--subjects. But the 73d Congress enacted the IRA 77 years 
ago in response to the social and economic conditions that existed on 
Indian reservations in 1934.
    Over the past three-quarters of a century those social and economic 
conditions have changed. In addition, since 1978 the BIA has been 
increasingly preoccupied with creating new ``federally recognized 
tribes'' that did not previously exist, and then in taking land into 
trust for the new tribes, frequently over the protestation of the 
county and local municipal governments within whose boundaries the land 
is located, and frequently for no purpose other than to enable a new 
tribe to contract with a non-Indian management company to construct and 
operate a gambling casino.
    For those reasons, it is past time for this Subcommittee to 
recommend to the Committee on Natural Resources that it recommend to 
the 112th Congress that it enact legislation that gives all interested 
parties clear guidance as to what Congress's Indian policy for the 
twenty-first century is insofar as tribal recognition and land-into-
trust acquisitions are concerned.
                                 ______
                                 
    Mr. Young. Thank you, Don, and I always love listening to 
you because you bring us a lot of perspective on the law, and I 
have to say that. I never even thought about that. Can you 
imagine all the tribes that were taken and all of a sudden they 
are not longer eligible? Holy boley, I ain't going to be 
Chairman I will tell you that for sure.
    The next witness we have, Susan Adams, please.

 STATEMENT OF SUPERVISOR SUSAN ADAMS, PRESIDENT, MARIN COUNTY 
          BOARD OF SUPERVISORS, SAN RAFAEL, CALIFORNIA

    Ms. Adams. Thank you, Mr. Chairman, and members of the 
Subcommittee. I want to thank you for the opportunity to be 
here today to address you.
    My name is Susan Adams. I am a Professor of Nursing, but I 
also currently serve as the President of the Marin County Board 
of Supervisors, and the testimony that I am going to provide 
for you today is on behalf of the California State Association 
of Counties and the National Association of Counties, of which 
I am an active member, and I currently serve on the CSAC Board 
of Directors.
    The brief time that I have before you today will be 
dedicated to just describing what we believe are major 
deficiencies in the fee-to-trust process, and to provide the 
Subcommittee with our recommendations for addressing these 
flaws. I would like to note that we have submitted formal 
written testimony to you for the record that includes 
additional details on our trust land reforms. We, of course, 
would welcome any opportunity to discuss these matters with you 
more fully with your staff in the future.
    County governments have long been frustrated with the 
process by which lands are taken into trust. The problem is 
that the fee-to-trust system is broken, and it is broken for 
all parties. Unfortunately, the so-called simple Carcieri fix 
embodied in the bills before the Subcommittee will do nothing 
to repair the underlying problems in the process.
    County governments and the people that we all serve are 
heavily impacted by fee-to-trust decisions. Trust acquisitions 
often increase demands for law enforcement, fire protection, 
health and social services, transportation, water, and other 
resources provided by counties without providing any mitigation 
for the burdens that are created. When a land is placed into 
trust it reduces the tax base and it takes a property out of 
local land jurisdiction.
    The fact is and the experience of local government is that 
despite these impacts the Department of the Interior does not 
provide sufficient notice regarding fee-to-trust applications 
to local government, and it does not accord county concerns 
adequately in the process, and perhaps most egregious, as 
determinations are made whether property qualifies as Indian 
Land, which is critical to a gaming application, counties are 
not notified of the determination requests, they are not 
consulted, and they are not invited to participate in the 
process.
    We believe that the process would benefit 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 the tribes to engage in 
good faith discussions regarding mitigation of the 
environmental impacts of tribal development or to 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 engaging in the local 
governments.
    And so these concerns exist in California and in many 
places throughout our country. They are expressed in the 
National Association of County's platform, which has been 
submitted to this Committee, and we maintain that if Congress 
adopts a quick fix it would be retreating from its 
constitutional role under the Indian Commerce Clause which 
would be delegating this critical function without any adequate 
direction to the Executive Branch. A quick fix would perpetuate 
the problems that I have just mentioned and that have resulted 
in years of expensive and unproductive conflict between the 
tribes and local government.
    We want a real and lasting fix. In our view, an amendment 
to the 1934 Indian Reorganization Act that extends tribal trust 
lands authority to the Secretary of the Interior should include 
clear direction to provide adequate notice to local government, 
to consult with local governments, to provide incentives for 
tribes and local governments to work well together, and to 
provide for cooperating agreements that are enforceable.
    The bills before you today do nothing to address this 
uncertainty, delay and conflict, and the underlying trust 
process that has emerged within the last 75 years, and instead 
would authorize the Department to continue business as usual.
    Counties stand ready to work with this Committee and the 
Administration to develop a new process that is founded on 
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 an historic opportunity, 
and we urge you to work with counties across the Nation and all 
constituents that Congress represents, whether tribal or non-
tribal, to ensure that this opportunity is not missed, and I 
did it in five minutes.
    Mr. Young. Congratulations. Well done.
    Ms. Adams. Thank you.
    [The prepared statement of Ms. Adams follows:]

   Statement of The Honorable Susan Adams, Supervisor, Marin County, 
 California, on behalf of the National Association of Counties and the 
  California State Association of Counties, on H.R. 1291 and H.R. 1234

    Thank you Chairman Young, Ranking Member Boren and Members of the 
Subcommittee for the opportunity to testify today on H.R. 1291 and H.R. 
1234. I also want to take this opportunity to thank Chairman Hastings 
and his staff for their continued accessibility and efforts to include 
county governments in the ongoing discussions involving the far-
reaching implications of the Supreme Court's Carcieri v. Salazar 
decision.
    My name is Susan Adams and I am a County Supervisor in Marin 
County, California and currently sit on the Board of Directors for the 
California State Association of Counties (CSAC). This testimony is 
submitted on behalf of the National Association of Counties (NACo) and 
CSAC, both of which have been actively involved in pursuing federal 
laws and regulations that provide the framework for constructive 
government-to-government relationships between counties and tribes.
    Established in 1935, NACo is the only national organization 
representing county governments in Washington, DC. Over 2,000 of the 
3,068 counties in the United States are members of NACo, representing 
over 80 percent of the nation's population. NACo provides an extensive 
line of services including legislative, research, technical and public 
affairs assistance, as well as enterprise services to its members.
    CSAC, which was founded in 1895, is the unified voice on behalf of 
all 58 of California's counties. The primary purpose of CSAC is to 
represent county government before the California Legislature, 
administrative agencies and the federal government. CSAC places a 
strong emphasis on educating the public about the value and need for 
county programs and services.
    For perspective on NACo's and CSAC's activities and approach to 
Indian Affairs matters, attached to this testimony is the pertinent 
NACo policy on the Carcieri v. Salazar decision and CSAC's 
Congressional Position Paper on Indian Affairs.
    The intent of this testimony is to provide a perspective from 
counties regarding the significance of the Supreme Court's decision in 
Carcieri and to recommend measures for the Subcommittee to consider as 
it seeks to address the implications of this decision in legislation. 
We believe that the experience of county governments is similar 
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 herein also 
reflect policy positions of many State Attorneys General who are 
committed to the creation of a fee to trust process where legitimate 
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. The 
Court 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 the Carcieri decision have been generated, some proposing 
administrative action and others favoring a congressional approach. 
Today's hearing is recognition of the significance of the Carcieri 
decision and the need to consider legislative action. We are in full 
agreement that administrative or regulatory action to avoid the 
decision in Carcieri is not appropriate, but we urge the Subcommittee 
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 returns 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 result would only perpetuate a broken system, where the 
non-tribal entities most affected by the fee to trust process are 
without a meaningful role. Ultimately, this would undermine the 
respectful government-to-government relationship that is 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 Subcommittee and to Congress is 
this: Do not advance a congressional response to Carcieri that allows 
the Secretary of the Interior to return to the flawed fee to trust 
process. Rather, carefully examine, with input from tribal, state and 
local governments, what reforms are necessary to ``fix'' the fee to 
trust process and refine the definition of Indian lands under the 
Indian Gaming Regulatory Act (IGRA). A framework for such reforms is 
outlined below. Concurrently, NACo and CSAC join in the request of 
Members of Congress 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. A clear definition of roles 
is acutely needed regardless of whether trust and recognition decisions 
are ultimately 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 the 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. The reforms 
suggested by NACo and CSAC are an important step in that direction.
    We respectfully urge Members of this Subcommittee to consider both 
sides of the problem in any legislation seeking to address the trust 
land process post-Carcieri, namely: 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, 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.
Legislative Background
    In 1934, Congress passed the Indian Reorganization Act (IRA) to 
address the needs of impoverished and largely landless Indians. The 
poverty of Indians was well-documented in 1934 and attributed in 
substantial part to the loss of Indian landholdings through the General 
Allotment Act of 1887 and federal allotment policy. Congress sought to 
reverse the effects of allotment by enacting the IRA, which authorizes 
the Secretary of the Interior to acquire land in trust for tribes 
through section 5. Acquiring land in trust removes land from state and 
local jurisdiction and exempts such land from state and local taxation.
    As envisioned by its authors, the land acquisition authority in the 
IRA allowed the Secretary to fill in checker-boarded reservations that 
had been opened to settlement through allotment, and create small 
farming communities outside existing reservations, to allow 
impoverished and landless Indians to be self-supporting by using the 
land for agriculture, grazing, and forestry. Western interests in 
Congress resisted even that modest land acquisition policy, because 
they did not want new reservations and did not want existing 
reservations, where non-Indians already owned much of the allotted 
land, to be filled in and closed. As a result, the IRA bill was 
substantially rewritten and stripped of any stated land acquisition 
policy, leaving the Secretary's authority to take land into trust 
unsupported by any statutory context. In fact, Western interests took 
the further step, after enactment, of restricting funding for the land 
acquisitions called for by the IRA. Even with full funding, the annual 
appropriations called for under the IRA would have allowed the 
Secretary to purchase only 200 160-acre farms per year. Funding for 
land acquisitions was eliminated during World War II. Following World 
War II, federal Indian policy moved back toward assimilation and away 
from creating separate Indian communities. These developments caused 
land acquisitions under the IRA to be infrequent and small in scope, 
producing relatively small impacts on state and local governments and 
rarely generating significant opposition.
    In recent years, the acquisition of land in trust on behalf of 
tribes, however, has substantially expanded and become increasingly 
controversial. The passage of the Indian Gaming Regulatory Act (IGRA) 
in 1988, in particular, substantially increased both tribal and non-
tribal investor interest in having lands acquired in trust so that 
economic development projects otherwise prohibited under state law 
could be built. The opportunities under IGRA were also a factor in 
causing many tribal groups which were not recognized as tribes in 1934 
to seek federal recognition and trust land in the past 20 years. 
Further, tribes have more aggressively sought lands that are of 
substantially greater value to state and local governments, even when 
distant from the tribe's existing reservation, because such locations 
are far more marketable for various economic purposes. The result has 
been increasing conflict between, on the one hand, the federal 
government and Indian tribes represented by the government in trust 
acquisition proceedings, and on the other hand, state and local 
governments.
Congressional Action Must Address the Broken System
    A central concern with the current trust acquisition process is the 
severely limited role that state and local governments play. The 
implications of losing jurisdiction over local lands are very 
significant, including the loss of tax base, loss of planning and 
zoning authority, and the loss of environmental and other regulatory 
power. Yet state, county and local governments are afforded limited, 
and often late, notice of a pending trust land application, and, under 
the current regulations, are asked to provide comments on two narrow 
issues only: 1) potential jurisdictional conflicts; and 2) loss of tax 
revenues. The notice local governments receive typically does not 
include the actual fee-to-trust application and often does not indicate 
how the applicant tribe intends to use the land. Further, in some 
cases, tribes have proposed a trust acquisition without identifying a 
use for the land, or identifying a non-intensive, mundane use for the 
land, only to change the use to heavy economic development, such as 
gaming or energy projects soon after the land is acquired in trust. As 
a result, state and local governments have become increasingly vocal 
about the inadequacy of the role provided to them in the trust process 
and the problems with the trust process.
    While the Department of the Interior understands the increased 
impacts and conflicts inherent in recent trust land decisions, it has 
not crafted regulations that strike a reasonable balance between tribes 
seeking new trust lands and the states and local governments 
experiencing unacceptable impacts. A legislative response is now not 
only appropriate and timely but critical to meeting the fundamental 
interests of both tribes and local governments.
    The following legislative proposal addresses many of the concerns 
of state and local government over the trust process and is designed to 
establish objective standards, increase transparency and more fairly 
balance the interests of state and local government in the trust 
acquisition process. It is offered with the understanding that a so-
called Carcieri ``fix'' which leaves the fee to trust system broken is 
ultimately counterproductive to the interests of tribes as well as 
local and state governments.
The Problem with the Current Trust Land Process
    The fundamental problem with the trust acquisition process is that 
Congress has not set standards under which any delegated trust land 
authority would be applied by the Bureau of Indian Affairs (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 
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, including 
litigation costly to all parties, 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 issue of the Secretary's 
authority under the current failed system, but to reassert its primary 
authority for these decisions by setting specific standards for taking 
land into trust that address the main shortcomings of the current trust 
land process. Some of the more important new standards are described 
below.
LEGISLATIVE REFORM FRAMEWORK
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, which implement 
the trust land acquisition authority given to the Secretary of Interior 
by the IRA, 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.
    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, 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.
    New paradigm required for collaboration between BIA, Tribes and 
local government. 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 providing input in critical Department 
of Interior decisions and policy formation that directly affects their 
communities. This remains true today as evidenced by new policies being 
announced by the Administration without 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 comment by third parties 
even though they may experience major negative impacts, although it 
will accept and review such comments. BIA accepts comments only 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. Broad 
notice of trust applications should be required with at least 90 days 
to respond.
    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.
    ``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. Our associations do 
not oppose a lower ``need'' threshold for governmental and housing 
projects rather than large commercial developments and further support 
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 other development.
    3) Applications should Require Specific Representations of Intended 
Uses. Changes in use should not be permitted without further reviews, 
including environmental impacts, and application of relevant procedures 
and limitations. Such further review should have the same notice, 
comment, and consultation as the initial application. The law also 
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 affected governments.
    There needs to be opportunity for redress when the system has not 
worked. 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 where 
tribes have changed, or proposed to change the use of trust property 
from what was submitted in the original request. These types of 
actions, which can serve to circumvent laws, such as IGRA, and the 
standard fee to trust review processes, should be subject to challenge 
by affected third parties.
    4) Tribes that Reach Local Intergovernmental Agreements to Address 
Jurisdiction and Environmental Impacts should have Streamlined 
Processes. The legal framework should encourage tribes to reach 
intergovernmental agreements to address off-reservation project impacts 
by reducing the threshold for demonstrating need when such agreements 
are in place. Tribes, states, and counties need a process that is less 
costly and more efficient. The virtually unfettered discretion 
contained in the current process, due to the lack of clear standards, 
almost inevitably creates conflict and burdens the system. A process 
that encourages cooperation and communication provides a basis to 
expedite decisions and reduce costs and frustration for all involved.
    5) Establish Clear Objective Standards for Agency Exercise of 
Discretion in making Fee to Trust Decisions. The lack of meaningful 
standards or any objective criteria in fee to trust decisions made by 
the BIA have been long criticized by the U.S. Government Accountability 
Office and local governments. The executive branch should be given 
clear direction from Congress regarding considerations of need and 
mitigation of impacts to approve a fee to trust decision. 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. 
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 the negative impacts to other 
parties outweigh the benefit to the tribe.
Intergovernmental Agreements and Tribal-County Partnerships
    NACo and CSAC believe that Intergovernmental Agreements should be 
encouraged 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, for 
example, under recent California State gaming compacts. As stated 
above, if any legislative modifications are made, we strongly support 
amendments to IGRA that facilitate a tribe, as a potential component of 
trust application approval, 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. Such an approach can 
help to streamline the application process while also helping to insure 
the success of the tribal project within the local community.
California's Situation and the Need for a Suspension of Fee-To-Trust 
        Application Processing
    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 fee-to-trust applications are 
alike. The diversity of applications and circumstances in California 
reinforce the need for both clear objective standards in the fee to 
trust process and the importance of local intergovernmental agreements 
to address particular concerns.
    The Supreme Court's decision in Carcieri further complicates this 
picture. As previously discussed, 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. 
However, the phrase ``under federal jurisdiction'' is not defined.
    Notably, 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 legislation to change the result in Carcieri is considered, it 
is essential that changes be 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, NACo and CSAC strongly urge the Department of the 
Interior to suspend further fee-to-trust land acquisitions until 
Carcieri's implications are better understood and legislation is passed 
to better define when and which tribes may acquire land, particularly 
for gaming purposes.
Pending Legislation
    As stated above, while our associations support legislation, it 
must address the critical repairs needed in the fee to trust process. 
Unfortunately, the legislation pending in the House (H.R. 1291, Rep. 
Tom Cole and H.R. 1234, Rep. Dale Kildee) fails to set clear standards 
for taking land into trust, to properly balance the roles and interests 
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. 1291, 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 
``acknowledges to exist as an Indian Tribe.'' In doing so, the effect 
of the bill is to facilitate off-reservation activities 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 states such as 
California, is needed to address the varied circumstances of local 
governments and tribes.
Conclusion
    We ask Members of the Subcommittee to incorporate the 
aforementioned 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 Supreme Court's action, but 
absolutely should not do so without addressing these reforms. NACo's 
and CSAC's proposals are common-sense reforms, based upon a broad 
national base of experience on these issues 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 towards a 
collaborative process and, in doing so, reduce the delay and 
controversy that now routinely accompany acquisition requests.
    We also urge Members to reject any ``one size fits all'' solution 
to these issues. In our view, IGRA itself has often represented such an 
approach, and as a result has caused many problems throughout the 
nation 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 NACo or CSAC can be of further 
assistance, please contact Mike Belarmino, NACo Associate Legislative 
Director, at (202) 942-4254, [email protected] or DeAnn Baker, CSAC 
Senior Legislative Representative, at (916) 327-7500 ext. 509, 
[email protected].
                                 ______
                                 

          CSAC Congressional Position Paper on Indian Affairs

                             112th Congress

    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 has adopted specific policy guidelines concerning land 
use, mitigation of tribal development impacts, and jurisdictional 
questions arising from tribal commercial ventures. 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 that seek both 
to take advantage of mutually beneficial opportunities and ensure that 
significant off-reservation impacts of intensive tribal economic 
development are fully mitigated. Toward this end, counties urge policy 
and legislative modifications that require consultation and adequate 
notice to counties regarding proposed rule changes, significant policy 
modifications, and various Indian lands determinations.
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 37 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 Administration and Congress are of preeminent 
importance.
Consultation and Notice
    A new paradigm is needed in which 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 formations that 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. In addition, local governments 
should be consulted, in a manner similar to that as tribes, on proposed 
rule changes and initiatives that may impact counties.
    Legislative and regulatory changes also 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 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 dozens of applications from California tribes 
to take land into trust representing thousands of acres of land (many 
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 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 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.
    It should be noted that 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 Carcieri decision, it is essential that changes are made to the 
fee-to-trust process to ensure 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 established 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, all of which 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].
                                 ______
                                 

 RESOLUTION OPPOSING THE CONGRESSIONAL REVERSAL OF CARCIERI V. SALAZAR 
   WITHOUT A COMPRENSIVE EXAMINATION AND REFORM OF THE FEE TO TRUST 
  PROCESS AND CALLING ON CONGRESS TO UNDERTAKE SUCH REVIEW AND REFORM

    Issue: On February 24, 2009, the United States Supreme Court 
decided the case of Carcieri v. Salazar which held that the Secretary 
of the Department of the Interior (DOI) lacks authority to take land 
into trust for tribes that were not ``under federal jurisdiction'' upon 
enactment of the Indian Reorganization Act (IRA) in 1934. This case has 
called into question practices of the DOI in recognizing tribes and 
placing land into trust without clear Congressional authorization. The 
decision has created uncertainty among some tribes regarding their 
status and land holdings and has led to introduction of legislation 
(S.1703, H.R. 3697, and H.R. 3742) calling for a ``quick fix'' to 
overturn the Supreme Court's action without addressing serious problems 
in the fee to trust process itself.
    Adopted Policy: NACo opposes S.1703, H.R. 3697, and H.R. 3742, and 
any other interim related action, and calls on Congress to address the 
Carcieri issues as part of a comprehensive examination and 
congressionally enacted reform of the fee to trust process.
    Background: NACo policy has recognized the serious shortfalls in 
the fee to trust process with respect to the failure to seriously take 
into consideration community interests. This is particularly 
problematic for counties, who generally exercise land use jurisdiction 
over lands that tribes seek to place into trust, thus removing them 
from local regulatory and jurisdictional control. NACo's Policy 
Platform calls for reform of the fee to trust process to insure: 1) 
meaningful notice to counties of trust applications; 2) good faith 
consultation with counties regarding fee to trust issues; and 3) 
agreements with counties to insure that the off reservation impacts of 
tribal development projects are mitigated (NACo Finance and 
Intergovernmental Affairs Platform Policies 4.9.3; 4.9.5; and 4.9.6.). 
NACo policies further support legislative changes to the trust process 
which include full compensation to counties for lost tax revenue 
resulting from taking lands into federal jurisdiction (Policy Platform 
1.6.2.).
    The current federal fee to trust process as exercised under the 
Indian Reorganization Act and as used under the ``restored lands'' 
exception to the Indian Gaming Regulatory Act is contrary to the 
original legislative intent; is without clear and enforceable 
standards; does not take into account county interests; and, at times, 
interferes with county ability to provide essential services to the 
community. The lack of: appropriate county consultation (or notice); 
transparency; balance; and clear standards in trust land decisions have 
combined to create significant controversy and unnecessary conflicts 
between federal, state, county and tribal governments, and broad 
distrust over fairness in the system. While the uncertainty created for 
many tribes by the recent Supreme Court decision should be addressed, a 
``quick fix'' which does nothing to repair the broken fee to trust 
system should be rejected.
    Fiscal/Urban/Rural Impact: The requirement of consultation and 
negotiated mitigation agreements and full tax reimbursement will reduce 
negative financial impacts to both rural and urban counties where land 
is taken into trust.
                                 ______
                                 
    Mr. Young. And Cheryl, you are up next.

             STATEMENT OF CHERYL SCHMIT, DIRECTOR, 
          STAND UP FOR CALIFORNIA, PENRYN, CALIFORNIA

    Ms. Schmit. Thank you. Mr. Chairman and members of the 
Subcommittee, thank you very much for the invitation to present 
information today on behalf of our organization and the many 
community groups that interact with us.
    In the audience today are two of the community group 
representatives, Mr. Jerry Uecker of Save Our Communities, 
whose community is facing a fee-to-trust acquisition that is a 
significant threat to the public safety and personal financial 
concerns of the citizens in that area. And Ms. Toni Hawley of 
the Blythe Boat Club who was recently evicted by the Colorado 
River Indian Tribe from property to which she actually holds a 
deed.
    Stand Up for California would be supportive of a fix if it 
required a credible process for state and local input that 
would be considered by the Secretary and not a pro forma step 
that simply will be ignored by the Secretary. We view the 
Carcieri v. Salazar ruling as a catalyst for the necessary 
reforms at the Federal level of government. Any proposed fix 
must restore the balance of authorities between tribes, states 
and local governments and the surrounding communities of 
citizens, and what I would like to do is give you a snapshot of 
what is going on in California and why I have made the 
statements that I have made.
    California is home to approximately 108 Indian tribes, and 
yet our tribal governments have the smallest population in the 
nation, probably about 32,000. Sixty-eight of these tribes 
operate gaming facilities and produce almost one-third of the 
nation's tribal having industry's revenue. We have 78 tribal 
groups that are now petitioning for Federal recognition, and I 
find it interesting because in 1998, before our state legalized 
slot machines on Indian lands, providing a monopoly for tribes, 
only 48 tribes had petitioned for tribal gaming, or excuse me, 
for Federal recognition.
    We currently have 135 fee-to-trust acquisitions in process 
for more than 15,000 acres of land, and while perhaps the 
majority of these are stated as non-gaming many of the lands 
are contiguous, and if you are familiar with the Indian Gaming 
Regulatory Act, then you know that contiguous lands are an 
exception for gaming, and quite often after lands are in trust 
our experience in California has been that the land use has 
changed to perhaps a gaming amenity if not gaming itself.
    I have six examples that I have put forward for you in my 
testimony, and they are concerns. They are areas that we would 
like to see greater discern by the Secretary of the Interior 
when it comes to taking land acquisitions.
    One acquisition will create three islands of non-Indian 
homeowners, about 1,200 persons living within trust land. They 
will be isolated. This will have an impact on city and county 
services to these citizens, and certainly many of them fear for 
their safety because of the conditions that already existed on 
this particular reservation.
    We have a similar example where significant amount of trust 
lands have been acquired by a tribe, and these homeowners, five 
of them, have been isolated within the trust land, and now the 
access to their property is significantly reduced. They may not 
even be able to sell their property to new owners for fear of 
losing access to the new owner.
    Off-reservation gaming, we have eight applications in-state 
right now. These applications, some are for restored lands, 
some are for two-part determinations. I am not so concerned 
about two-part determinations because if there is opposition at 
the local level it is possible that the tribe will not be able 
to get a compact, or if they do get a compact it will not be 
ratified by our State Legislature as our State Legislature has 
already done that in the past. But the restored lands is a 
significant issue, limiting the ability of local government and 
citizens to address the concerns in these fee-to-trust 
transfers.
    And the other issue that is of great concern is the bait 
and switch tactic that goes on in California where land is 
acquired for home land, for housing, and then later the use of 
the land is changed. The status of tribes in California is 
quite complicated. Many were recognized by stipulated 
agreements, of which the State of California was not a party, 
and that is creating some issues with the state with their 
current--they have been involved in litigation with the Big 
Lagoon Tribe, Rancheria in Northern California, and it is 
interesting, and the documents, according to the state, the 
members of this tribe that are now recognized are not heirs to 
the original owners of this Rancheria, so there has been an 
ongoing conflict for about eight years now. They are now 
currently in mediation for negotiations for a tribal state 
compact, but the question of whether or not this will be a 
casino for a legal tribe will still be out there.
    I would like to conclude by hoping that, Chairman Young, 
you would consider encouraging the Committee to come to 
California and hold a field hearing so that you could hear 
about some of the other unintended consequences that have 
occurred in California because of the fee-to-trust process. 
Thank you very much.
    [The prepared statement of Ms. Schmit follows:]

               Statement of Cheryl A. Schmit, Director, 
          Stand Up For California, on H.R. 1234 and H.R. 1291

    Mr. Chairman and Members of the Subcommittee, my name is Cheryl 
Schmit. I am the founder and director of Stand Up For California. Stand 
Up for California is a statewide organization with a focus on gambling 
issues affecting California, including tribal gaming, card clubs and 
the state lottery. We have been involved in the ongoing debate of 
issues raised by tribal gaming and its impacts for more than a decade. 
Since 1996, we have assisted individuals, community groups, elected 
officials, and members of law enforcement, local public entities and 
the State of California as respects to gaming impacts. We are 
recognized and act as a resource of information to local state and 
federal policy makers.
    With me today are two community group representatives that have 
interacted with Stand Up For California for several years. Mr. Jerry 
Uecker of Save Our Communities is here today as his community faces a 
significant threat to public safety and personal financial lost due to 
a fee to trust acquisition. Ms. Toni Hawley of Blythe Boat Club is here 
because she has been evicted by the Colorado River Indian Tribe from 
property to which she holds a deed since 1948.
    In 2009, Stand Up For California submitted comments on a proposed 
Carcieri Fix to both the House Resources Committee and the Senate 
Committee on Indian Affairs. In those comments our organization stated 
its full support for the language recommendations in the testimony of 
Attorney General Lawrence Long, Executive Director of the Conference of 
Western State Attorneys General.
    Attorney General Long's testimony addressed the unintended 
consequences that have been created by the lack of objective criteria 
and standards in the current fee-to-trust process. Moreover, the 
current fee-to-trust process is a program that has outlived its prior 
goals and purposes and must be reformed balancing the needs of tribes 
with the surrounding communities.
    Today, it appears a legislative solution is necessary to provide 
guidance to the Department of the Interior which has created and 
sustained the current trust land system. The development of the trust 
land system has been on a case-by-case basis, thus establishing weak 
procedures and ill-defined substantive standards. Since the Department 
has a special responsibility to Indians and tribes and no particular 
obligations to states, local governments and the surrounding 
communities of citizens, this explains why objective standards are so 
necessary.
    Congress must come to face the fact that it has essentially 
legalized gaming in the United States and dictated it from the federal 
level to states and municipalities. If Congress passes a ``clean fix'' 
it will again expand gaming nationally. Congress must deal wholly and 
fully with the impacts caused in states and local areas populated with 
communities of non-Indian citizens who will directly and financially 
suffer the impacts of federally created gaming.
    Tribal interests have established no case whatsoever that a Supreme 
Court decision should be reversed by a quick fix bill. The proponents 
have simply stated that the decision creates two classes of tribes. 
This simple reasoning is supposed to support the fix. What are the two 
classes of tribes? We already have tribes with casinos and tribes 
without, tribes with land and tribes without. The Indian Gaming 
Regulatory Act did not promise a casino to every tribe. Moreover, in 
reading the Secretary's review of the Cowlitz Determination, it plainly 
stated that a fix is not necessary for a determination that a tribe was 
under federal jurisdiction prior to 1934.
    If this committee is to recommend a quick fix, it should be based 
on real evidence that answers the question: What is the factual basis 
for passing a reversal of a United States Supreme Court Ruling? Only 
when we see serious answers to the 16 questions to Chairman Hastings 
letter of October 30, 2009 to the Secretary of the Interior, supported 
by evidence, will there be a basis for discussion on the merits of a 
``clean fix'' versus a ``well-reasoned overhaul'' of the entire fee-to-
trust process.
    The Carcieri v. Salazar ruling is a catalyst for necessary reforms 
at the federal level of government. Any proposed ``fix'' must restore 
the balance of authorities between tribes, states, local governments 
and the surrounding community of citizens.
    Let me give you a snapshot of California issues, the result of 
unintended consequences:
    California is home to 108 Indian tribal governments. California`s 
tribal governments have the smallest population of enrolled tribal 
members--approximately 32,000--as compared to other states. Yet, 68 of 
the 108 tribes operate casinos and collect about a third of the 
national tribal gaming industry revenue.
    California has approximately 78 tribal groups seeking federal 
recognition. In 1998 prior to the legalization of slot machines on 
tribal lands there were only 48 tribal groups petitioning for federal 
recognition. The prospect of gaming in California has significantly 
affected this process.
    Presently, California Tribes have 135 fee-to-trust applications 
encompassing more than 15,000 acres of land. While most fee-to-trust 
applications are labeled as non-gaming many of the lands are described 
as contiguous and adjacent lands. The described use of the contiguous 
and adjacent lands is sometimes vague, ambiguously stated or more 
importantly its use is changed once in trust, often for gaming. 
Contiguous lands meet the exception for gaming on after acquired lands 
and should be considered and processed as a gaming acquisition.
    California needs a ``programmatic policy'' due to: (1) the 
arbitrary administrative actions of the BIA in recognizing tribal 
governments in California, (2) unique federal Indian law specific to 
California and (3) the state's unique history of events in the 
development of statehood that make California unique in the nation.
    The following examples will illustrate the serious public interest 
implications of fee to trust acquisitions on surrounding jurisdictions, 
businesses and citizens as well as the impacts of administrative 
actions of the BIA recognizing tribes.
    1. The Soboba Band of Luiseno Indian's has a fee-to-trust 
application seeking an additional 600 acres of ``contiguous'' and 
adjacent lands to develop an expanded gaming complex and resort. 
(Current reservation is 5915.68+ ac.--Pop. Approx. 700). This fee-to-
trust acquisition will create 3 islands of non-Indian homeowners 
(approx. 1200) within the newly acquired trust lands. This creates 
significant life-safety and quality of life concerns for citizens 
living within the trust lands. The majority of these citizens are 
elderly and have nowhere to move.(Seniors: est. 70% over 55; Breakdown: 
10% over 80; 20% over 70; 20% over 60; 20% 55-60) The concerns are 
grave as these residents, if the fee-to-trust acquisition is approved, 
will be isolated in the middle of trust land governed by a Tribe that 
has over the last several years, according to a letter by Sheriff 
Stanley Sniff, Jr. to the NIGC in 2009, a ``history of crime 
incidents'' on the reservation.
    Placing aside the issue of public safety related to crime that have 
occurred on this particular reservation, what happens to these citizens 
in the event of a natural disaster such as an earthquake or flood? 
Access is one road across a two-lane bridge in a flood zone. This 
presents exigent circumstances over life-safety and emergency service 
issues that must be given consideration for continuous ingress and 
egress on trust lands.
    2. The Morongo Band of Mission Indians requested in 2000 that the 
County of Riverside vacate public interest in County roads ``within'' 
the reservation. However, the Morongo appear to be asserting authority 
over portions of a public road and the fee property of a non-Indian 
citizen that is clearly ``outside'' of the exterior boundary of the 
reservation as stated by the Solicitor of the BIA in 2004 in the Notice 
of Decision taking additional fee land into trust. Additionally, there 
are 5 other property owners who now appear to be landlocked within 
trust lands. These residents also state the Morongo is asserting 
authority over their free access and use of private property. They also 
note increased life safety concerns related to vandalism of their 
properties. This is the future of the citizens facing the Soboba fee-
to-trust acquisition.
    3. The Colorado River Indian Tribes (CRIT) of Arizona is claiming 
17 miles of land along the west bank of the Colorado River as 
reservation or trust land in California. However, there is no Act of 
Congress, as required by unique federal law in California, defining the 
reservation boundary. Nor has there been a fee-to-trust process over 
these claimed lands. CRIT has requested tribal state compact 
negotiations for a casino in California, but the State of California 
questioned where the reservation if any, in California is. In the 
meantime, CRIT asserts tribal authority over non-Indians living on 
federal Reclamation lands. Citizens residing along the river are 
victims of a 50 year unresolved dispute between the U.S. DOJ, the CRIT 
and the State of California. California and the United States need a 
vehicle to resolve this issue.
    4. Off Reservation Gaming--Four Tribes are requesting restored 
lands determinations for gaming and have pending fee to trust 
applications: Guidiville, Scotts Valley, Ione, and Cloverdale. These 
are Rancheria tribes that were restored by court-stipulated judgments 
or were administratively reaffirmed by the Secretary of the Interior. 
The State of California was never included as a party of interest in 
these determinations. There are an additional 4 fee-to-trust 
applications for gaming through the two-part determination: North Fork, 
Enterprise, Manzanita and Los Coyotes. These proposals are sponsored by 
out-of-state developers, gaming investors and some tribal gaming 
interests, both in and out of state. The proliferation of off-
reservation gaming has caused an ambiguity of not only the exceptions 
found in IGRA, but uncertainty over the application of the Indian 
Reorganization Act to California Rancheria Tribes.
    5. The Tule River Indian Tribe submitted a ``non-gaming'' trust 
application for property it owns in fee in downtown Porterville, Tulare 
County near the airpark. The land is about 20 miles from its 
reservation, established in 1864 by Congressional authority. The land 
was previously the subject of a gaming application, but the Tribe 
insisted that it was not and the BIA asserted that it was merely 
speculation that the fee-to-trust acquisition was for gaming. Yet, the 
Southern San Joaquin Valley radio station KTIP AM 1450 began 
broadcasting a daily advertisement from the Tule River Tribal Council 
indicating plans, ``. . .for the move of Eagle Mountain Casino to its 
intended home near the Porterville airpark. (Documented in the County 
of Tulare comments on the FONSI)
    This is not the first time a Tribe's application asserted a non-
gaming purpose, only to find that once in trust the land is used for 
gaming or other casino amenities. Several California tribes have 
acquired fee land with Housing and Urban Development Grants, 
transferred the land into trust and then used this land for gaming. 
Even some of our state's prominent tribes have stated the use of the 
land as non-gaming and then used the after-acquired lands for gaming or 
gaming amenities. This expands gaming operations without application of 
the relevant laws, most notably section 20 of Indian Gaming Regulatory 
Act and its provisions for protecting the delicate balance of authority 
between the tribe, state and federal government. California has been 
and continues to be severely affected by this ``bait and switch'' 
tactic.
    6. The Big Lagoon Rancheria has sued the State of California for 
bad faith negotiations in the development of a tribal-state gaming 
compact. The evidence obtain by the State so far indicates there is no 
linear connection between the original rancheria residents and current 
members, making the Tribe ineligible for the 1994 fee-to-trust 
acquisition. It also raises a material question whether the United 
States lawfully considers the Tribe as federally recognized. Big Lagoon 
demonstrates the arbitrary administrative actions of the BIA in 
recognizing tribal governments in California.
    Failure to work with affect communities of citizens and local 
governments has resulted in numerous impacts:
          Domestic and agricultural water outages that also 
        exacerbate fire protection needs
          Overdraft of ground water creating interference with 
        wells
          Denial of access to private property of non-tribal 
        citizens
          Proposed garbage dumps in sensitive environmental 
        locations
          Noise nuisance from the development of a new raceway 
        within 100 yards of an established neighborhood
          Numerous collisions on narrow unlit rural roads
          Increased drunk driving in rural residential areas
          Massive developments in agriculturally zoned areas
          Developments in ecologically sensitive areas that 
        disrupts wildlife migration, movement and connectivity
          A disruption of law enforcement services due to a mix 
        of jurisdictions between tribes and the state
          Unfair competition for local businesses that were 
        established in an area prior to the development of a new 
        reservation on after acquired lands.
    Stand Up For California and the many community groups and citizens 
that interact with our organization urges Congress to reform the trust 
land system and to the greatest extent possible provide all affected 
parties the opportunity to participate in a constructive, fair and 
objective process. We further urge the Sub-committee to advise the 
Natural Resources Committee to consider holding field hearings in 
affected States like California, so that all affected stakeholders are 
given an opportunity to present the many unintentional consequences of 
the current land into trust system as well as to offer suggestions to 
enhance and make more suitable the process.
                                 ______
                                 
  
Stand Up For California!
``Citizens making a difference''
www.standupca.org
P. O. Box 355
Penryn, CA. 95663

July 22, 2011

Honorable Don Young, Chairman
Subcommittee on Indian and Alaska Native Affairs
United States House of Representatives
1324 Longworth House Office Building
Washington, D.C. 20515
Fax: 202 225-5929

RE: Correction to statement made in the July 12th Hearing

Dear Chairman Young:

    I would like to personally thank you for the invitation to testify 
at the July 12th hearing. It was a significant opportunity for our 
statewide organization to present the often overlooked unintended 
consequences of the current fee-to-trust process affecting the daily 
lives of ordinary citizens. I sincerely appreciate the time you gave me 
to demonstrate why we believe the Carcieri v. Salazar ruling is a 
catalyst for necessary reforms at the federal level of government.
    Additionally, I write this letter to correct my response to a 
question that you asked of me. Specifically, has the Department of the 
Interior, Bureau of Indian Affairs ever denied an application for fee-
to-trust? I responded that in current time, I believed the Jamul Band 
of San Diego had been denied a fee-to-trust application for the purpose 
of gaming. However, after giving that a little thought and returning 
home to review my files, that is not exactly accurate and I wish to 
correct the statement for the record.
    The Jamul Tribe of San Diego (Tribe) submitted an application for 
107 acres contiguous to its 6 acre reservation on July 15, 2000. The 
purpose of the fee to trust acquisition was clearly stated for gaming 
under the exception of 25 USC 2719 (a) (1). The Tribe's investor at the 
time was, Lakes Entertainment of Minnesota. The Tribe faced significant 
opposition from the County of San Diego, a community group Jamulians 
against the Casino, tribal members who were residents of the 6 acre 
trust lands and the State of California.
    The Tribe became entwined in litigation with: (1) with the tribal 
residents facing removal from the only home they had known for decades; 
and (2) the California Transportation Department over casino access to 
Route 94. The litigation with Cal Trans required Lakes Entertainment in 
its annual report filed with the Securities and Exchange Commission to 
devalue its deal with the Tribe by an estimated $35 million. Further 
Lakes Entertainment had to acknowledge that the casino construction 
faced longer odds.
    The Tribe's application last appeared on the Bureau of Indian 
Affairs pending gaming application list in 2007. However, there is no 
formal letter of denial from the Bureau of Indian Affairs. On the 
surface, the application appears to have fallen into a black-hole. 
Nevertheless, further research evidences that the application is still 
on file at the Pacific Regional Office of the Bureau of Indian Affairs. 
It appears on the Quarterly Report per the Indian Affairs Manual Part 
52, Charter 12, Real Estate Services, and processing Discretionary Fee-
to-Trust Application, dated October 14, 2010. Just like the Tule River 
Indian Tribe's application that I commented on, the application has 
gone into a dormant or suspended state. If the application is not 
substantially changed, it can become active at any time without re-
notifying affected governments or the surrounding community of 
citizens.
    There appears to be no process or political-will by the Department 
of the Interior, Bureau of Indian Affairs for denying a fee-to-trust 
application even if it is not forthright in its stated purpose or the 
application totally disregards serious environmental impacts, 
significant social justice concerns, creates exponential economic or 
political impacts. This is further evidenced by one other fee to trust 
application that came close to ``almost being a denial''.
    In 1995, the Area Director of the Bureau of Indian Affairs 
submitted a notice of intent to take two tracts of land into trust for 
the Sycuan Band of Mission Indians. The stated purpose for the land use 
was agricultural. Instead the Sycuan paved a portion of the land and 
began using it as casino parking to enhance the Tribe's gaming 
enterprise.\1\ The Area Director in 1996 vacated its 1995 decision to 
acquire the land in trust. In the Sycuan's 1997 Appeal, the act to 
vacate the appeal was not interrupted as a denial for the tribes 
request for trust acquisition. Rather, it was viewed as the Area 
Director leaving open the possibly of a trust acquisition in the 
future. As of today, this property has been in trust for a number of 
years. (31 IBIA 238 (11/05/1997) Sycuan Band of Mission Indians v 
Acting Sacramento Area Director)
---------------------------------------------------------------------------
    \1\ It should be noted, that tribal casino gaming in California was 
illegal at this time (1995). California's State Constitution prohibited 
slot machines, until 2000 when the citizens voted to amend the 
Constitution to allow for a limited exception for slot machines on 
tribal lands with a negotiated tribal state compact ratified by the 
state legislature and approved by the Secretary of the Interior. 
Nevertheless, 39 tribes, Sycuan being one, were operating full service 
casinos without a tribal state compact in violation of 25 USC 2710 
(d)(1)(B). IGRA does not obligate a Governor of a state to negotiate 
for illegal gaming.
---------------------------------------------------------------------------
    In conclusion, there does not appear to be any denial of trust 
lands in California--ever. I apologize for my misstatement in a 
Congressional Hearing of such great import. I hope this letter is 
sufficient to correct the record. I would like to extend once again to 
you an invitation to hold Field Hearings in California. The 
subcommittee could gather firsthand knowledge of the many unintentional 
consequences of the current land into trust system and hear a variety 
of suggestions to enhance and make more suitable this important 
process.

Sincerely,

Cheryl Schmit--Director
916-663-3207
[email protected]
www.standupca.org

[NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Young. Thank you for your testimony and being 
originally from California I was wise enough to leave, but we 
might do that. That might be a good idea to take care of this.
    Mr. Boren.
    Mr. Boren. Thank you, Mr. Chairman. I have a couple 
questions. Let me start with Ms. Adams.
    In your written testimony you argue that the Executive 
Branch usurped Congress's constitutional authority over tribal 
recognition. Are you aware that Section 103 of the 1994 
amendments to the IRA, current and controlling law, codified 
Federal recognition of Indian tribes through administrative 
procedures?
    Ms. Adams. I am not aware of that.
    Mr. Boren. Not aware of that, OK. That is something that 
maybe we can get to you.
    A couple other questions for Ms. Schmit and also Ms. Adams. 
In the hearing on a Carcieri fix last Congress before the Full 
Committee on Natural Resources, my colleague, Mr. Cole, 
eloquently stated, and as it turns out accurately predicted, 
``Carcieri has the potential to become a revenue grab for 
states. It 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 
question for unnecessary litigation between tribal and state 
governments.''
    It appears that Mr. Cole was right. How is your 
organization, starting with Ms. Schmit, how is your 
organization's position objecting to a clean fix not a revenue 
grab for states, and how else can we explain the rampant 
litigation on Carcieri grounds brought by local governments 
against the Secretary? And then have Ms. Adams respond to that.
    Ms. Schmit. First of all, a revenue grab for states. 
Normally I think of revenue grab for states when we talk about 
gaming compacts with tribes, but I am not sure how a clean fix 
would affect the ability of a state to grab revenue from a 
tribe. You mean just the land is not in trust?
    Mr. Boren. Yes. Well, actually a tax base because you are 
taking land that--Mr. Cole actually talked about in lieu of 
taxes and some other ways that tribes, like in Oklahoma we do 
that, but in this instance what I am saying is this is revenue 
that the state and local governments would have if there had 
not been land into trust.
    Ms. Schmit. Let me give you an example. In Tulare County, 
we have a tribe who is acquiring approximately 40 acres in 
downtown Porterville, and one of the concerns of one of the 
community groups was that the tribe would develop a large gas 
station. Approximately 30 gas station owners in and around the 
City of Porterville organized to oppose the fee-to-trust 
transaction. The tribe already has an established reservation 
and an operating casino and a gas station at the reservation 
site, very successful. The state probably loses between two and 
three million dollars in sales tax on the gasoline from that 
station annually.
    The gasoline owners who have established businesses in and 
around the City of Porterville are very concerned about the 
unfair competition that they would face if a new gas station 
was built on the new fee land, so they could go out of 
business, some of these men could lose their businesses, their 
livelihoods, and the tribe would be able to develop tax free.
    Now, they are not saying don't develop the gas station but 
there needs to be some sort of mitigation developed with local 
government or with the state so that there can be some solution 
to their concerns.
    Mr. Boren. Well, I mean, taking that line of thinking all 
the way through, I mean, you could say, well, I just don't 
support tribal sovereignty. I mean, what I am saying basically 
is these entities, these tribes create economic development, 
whether it is building a gas station, whether it is gaming, 
whether it is manufacturing facilities, and, you know, just 
because they may not--these lands may not be on the tax rolls 
they pay in lieu of taxes--in my district alone there are roads 
built, there are monies that go to schools, and so I would say 
that it is not necessarily true that these tribes are just have 
an unfair advantage. In many cases they are giving tax dollars 
back to these local communities, particularly they are in 
Oklahoma, and that is why I think it is a revenue grab, because 
the states are trying to bring lawsuits to challenge the status 
of the tax land taken in their tax base, because, you know, 
they are just trying to get this money.
    I yield back, Mr. Chairman.
    Ms. Adams. Did you want me to respond?
    Mr. Boren. Sure, go right ahead.
    Ms. Adams. You said both of us.
    Mr. Boren. Yes. Yes, Ms. Adams.
    Ms. Adams. Because as a representative for NACO and CSAC 
certainly there are some of our counties that work very well 
with their tribes and they have a great relationship and the 
tribes are working very closely, and that is because of mutual 
beneficial interest.
    The problem is when there isn't that same relationship and 
there are no standards to help guide that relationship for both 
sides, either side if they are not amenable to working well, 
and I will give an example.
    In Roma Park in Sonoma County there is a tribe that is 
currently looking at building a large casino and it is an area 
where they may be using wells in a large community where wells 
are going dry, and the issues around water and how do we ensure 
that we are all using and sharing water well needs to be a 
conversation that we have together. So, it is not an issue 
about, you know, whether we are trying to take money or grab 
money, it is about how do we work together so that the tribes 
can fulfill the goals that they need and the communities that 
are existing in those communities can also be good neighbors.
    Another example is a tribe that is trying to take land into 
trust in the heart of Richmond, which is in the heart of San 
Francisco Bay area, in a very urbanized area at the foot of a 
Chevron refinery, and there are some concerns from Chevron 
about safety issues related to the refinery, and how are we 
able then to have the guidelines to have those conversations 
about how do we ensure safety, how do we address traffic 
mitigations, how do we address the other resources that 
sometimes are called into play, and so those are the concerns. 
There is not an argument from NACO or CSAC that tribes 
shouldn't have their sovereign land and economic vitality. It 
is how do we work together to make sure that everybody is 
benefitting.
    Mr. Boren. One final comment, Mr. Chairman?
    Mr. Young. Yes.
    Mr. Boren. Well, I mean, we have had successful--I am glad 
you pointed out--there are successful relationships between 
tribes, local governments, states. As I said in many cases they 
are mutually beneficial, but we have to respect the fact that 
these are sovereign nations, and that there is a--you know, 
dealing with a state as an example, you have compacts, and it 
is not just, you know, a local community can go in and do 
something like this. This is a company. This is a nation. So 
these are very sensitive negotiations, and I think the beset 
results are when there is mutual respect and that there are, 
you know, these type of commitments.
    Ms. Schmit. May I add one comment, please?
    Mr. Young. Make it very short. It is three minutes and 21 
seconds over this gentleman's time.
    Ms. Schmit. I am sorry. I agree, and I think that I cut my 
teeth on the very issue that you are talking about in 1998 when 
the United Auburn Indian Community negotiated a mutually 
beneficial agreement with Placer County. The citizens were 
deeply involved in that negotiation, and in that situation the 
tribe does pay in-lieu of taxes, and that is probably one of 
the most successful tribes in our state, and being sovereign 
has not impacted them at all for paying in-lieu of taxes or for 
being accountable to the greater community and mitigating the 
impacts their facility has created.
    Mr. Young. All right, thank you. The gentleman from 
American Samoa.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I certainly want 
to personally welcome Professor Skibine in testifying this 
morning in our hearing, and Mr. Mitchell, I was quite taken by 
your testimony as you made reference, and I think you said it 
quite well, in terms of the recognition process that seems to 
have impacted the whole situation with the tribes.
    I recall distinctly about 15 years ago we had the fellow 
who wrote the regulation of these seven criteria that the 
tribes have to comply with before they then become Federally 
recognized, and knowingly it is a regulation. It is not even by 
congressional statute, and the fellow admitted that even he 
would not have been recognized if he went through the process. 
This is how terrible the process has been, and I think we have 
tried several times to try to write legislation congressionally 
and see how we can make the process a little more proficient. 
Many tribes couldn't afford the bill that they have had to pay 
just to be recognized.
    I recall the recognition of the Lumbee Indians is a classic 
example of how the FAP system has become a total failure in my 
humble opinion, and an embarrassment, too, in try to determine 
who his an Indian. To me, it is a joke.
    But I wanted to ask you, do you think this push back came 
as a result, as you had mentioned, I think Senator Feinstein, 
was one of the leaders that resisted for the simple fact that 
there are some 100, as I recall, about 108 Indian tribes who 
are not recognized Federally, and that is another mess that we 
haven't gotten into that yet, and I wanted to ask you, you seem 
to suggest that the Carcieri decision could be better done in 
another way?
    I mean, you suggest that we have to do this statutorily and 
not depend on the Interior Department for these regulations 
that has been in process now since the Indian Review Commission 
in 1977?
    Mr. Mitchell. Right. Well, Mr. Chairman, I guess I was 
saying two things. First, there is an administrative law issue 
which is basic first year law student stuff that a Federal 
agency, whether it is the Bureau of Indian Affairs or whether 
it is the Department of Defense, only has that authority that 
has been delegated to that agency by Congress in a statute. 
There is no statute as I said in my original presentation, 
there is no statute that delegates the Secretary of the 
Interior the authority to be out on his own or her own in the 
case of Assistant Secretary Deer, running around creating new 
Indian tribes. That is a serious, and in my legal judgment, I 
don't know what Professor Skibine thinks of it, but that is a 
serious problem, but that is a legal question.
    Then there is the policy question of if Congress was going 
to address that and create such a statute that would delegate 
that authority and fix that mess, is it a good idea for 
Congress to be encouraging the creating of new tribe in the 
Twenty-first Century, and if it is in some circumstances, what 
should those circumstances be described as in the statute? As I 
indicate----
    Mr. Faleomavaega. I hate to interrupt but I know my time is 
really running out.
    Mr. Mitchell. But that is a policy question. There is a 
tribe in California, the St. Augustine Tribe, that consisted 
initially of one member who was actually an African American 
from Compton that people found that there was a spare 
reservation sitting unused in Indio, California, in a----
    Mr. Faleomavaega. I know. You have made your point quite 
well. This is how ridiculous the whole situation has been, and 
Ms. Adams, I do support your concerns. There seems to be an 
inconsistency, and that is what is causing the problem with our 
counties and how to deal with fee-to-trust land acquisitions, 
perfectly understandable. And Ms. Schmit, I also understand 
your concerns in terms of how we have been going about.
    You know, we currently recognize, what, 465 tribes are 
Federally recognized right now, and there are about another 117 
that are not recognized, and one of the classic examples that 
we are having problems with recognition are the Native 
Hawaiians. That is another big issue in itself.
    Professor Skibine, just one fast question. I know my time 
is running out. Geeze, eight more seconds.
    You said about the doctrine of deference, and you felt that 
the Carcieri decision really has just thrown this out in the 
window. Do you suggest that perhaps the bills, H.R. 1234 and 
H.R. 1291, will clearly make this a better situation?
    Mr. Skibine. Well, I think that Congress will re-assert its 
authority and pass the laws because basically by ignoring that 
there was an ambiguity the court was able to, in effect, 
rewrite the statute the way it wanted.
    Mr. Faleomavaega. Well, the ambiguity was on one simple 
word in this whole court.
    Mr. Skibine. Yes.
    Mr. Faleomavaega. The word ``now''----
    Mr. Skibine. Now, yeah.
    Mr. Faleomavaega.--turned the whole thing.
    Mr. Skibine. Right.
    Mr. Faleomavaega. But this would definitely cover the 
ambiguity if we passed these two----
    Mr. Skibine. Absolutely.
    Mr. Faleomavaega. All right, thank you, Mr. Chairman.
    Mr. Young. I thank the gentleman. Ms. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chairman.
    Mr. Mitchell, in reading your testimony you said you have 
really been, I guess, involved I think is the word you used in 
the legal and policy issues we are discussing since about 1974, 
so I would like to ask you, when you take the position that you 
think the Committee should do nothing until, I think you said 
Chairman Hastings' questions are responded to by Secretary 
Salazar.
    And then you conclude your testimony by basically saying 
that the Congress should define for this century what the 
relationship should be in terms of not only land and fee-to-
trusts but also tribal recognition.
    Well, being a student since 1974, I mean, somebody involved 
with this since 1974, when do you really think one will get a 
response from the Secretary and Congress to be able to do what 
you want it to do, which is to define for the Twenty-first 
Century what we are going to do in terms of tribal recognition 
and fee-to-trust conversion of lands? When do you think that 
would reasonably happen?
    Mr. Mitchell. Mr. Chairman, first of all, the question of 
when will the Department provide this Committee with the 
information that a reasonable person would need in order to 
legislate knowingly is a question that would be better put to 
Chairman Young and Chairman Hastings than to me.
    I can tell you that if I was Chairman of the Full Committee 
that there would not be anything done for the Department of the 
Interior until information that I request from the Executive 
Branch that is relevant to my responsibilities as a Member of 
Congress has been provided period. And if they don't want to 
provide it, then we don't do them any favors.
    If the Agriculture Committee, which is, as I understand it, 
considering getting rid of the ethanol subsidies, sent a 
request to the Secretary of Agriculture saying can you tell us 
how many acres of corn land in the heartland of America is 
currently being subject to ethanol production, and the 
Secretary said, well, we have that information but we are not 
going to tell you, that would be a matter of significant 
bipartisan concern as a process issue, and that is what, as I 
said in my initial testimony, my experience has been since 
1977, not 1974, that the Interior Department consistently, 
regardless of administration, views the Federal Indian policy 
as a private matter between the Bureau of Indian Affairs' 
bureaucracy and the affected Native American organizations, and 
that Congress is an impediment to it conducting its business, 
and you can either agree with that analysis or you can disagree 
with that analysis.
    Ms. Hanabusa. So we can agree that about 34 years that you 
have been watching it and you really have not seen anything, so 
we could probably estimate another 34 years before we probably 
might get anything.
    Mr. Mitchell, this next question I have is one of the 
things that you have said that I find to be somewhat 
disconcerting is the fact that you are almost proposing that we 
change the policy of tribal recognition and possibly the 
creation of fee-to-trust relationships on a--like on a century 
basis for the Twenty-first Century.
    Don't you believe that is going to create some problems if 
we continue to change how we do recognition or how we do trust 
relationships on a century-by-century basis?
    Mr. Mitchell. Well, Mr. Chairman, if you read my 
testimony----
    Ms. Hanabusa. Well, I am not a chairman.
    Mr. Mitchell. I was speaking through the Chair.
    Ms. Hanabusa. Unless you want to speak--I know you like Mr. 
Young sitting here.
    Mr. Mitchell. I do like Mr. Young.
    [Laughter.]
    Mr. Mitchell. I do like Mr. Young but----
    Ms. Hanabusa. I am not astute too but----
    Ms. Hanabusa. I understand. I was just speaking--in the 
Alaska Legislature if I was speaking to you I would have to 
speak to the Chair, and I am sorry, I apologize.
    Ms. Hanabusa. That is fine.
    Mr. Mitchell. But very carefully in my testimony express no 
policy recommendation with respect to what Congress should do 
in any of these areas. I was not invited in here this morning 
to express that view. That was not as I understand my job. 
Needless to say, like most things on earth if you want to know 
my views I have some, but we should probably go to the tune-in 
or something, and when it opens up again after the fire, and I 
will be happy to spend two hours explaining to you my views.
    But the point is that what I really do not expect, not only 
do I not expect the Secretary to give the information that the 
Chairman of this Committee has asked for, I also, frankly, to 
be brutally candid, I have no expectation that the 112th 
Congress will be any more interested in facing up to the 
problems of Native American policy in the 21st Century than the 
111th Congress was, than the 110th Congress was, and, frankly, 
when you talk about Indian gaming, everyone says this has 
nothing to do with Indian gaming, this has everything to do 
with Indian gaming.
    Since 1977, the amount of campaign contributions and 
lobbyists that are in these halls that are paid for with gaming 
money has transformed the development of Federal Indian policy 
in this building.
    Ms. Hanabusa. Thank you.
    Mr. Mitchell. And that is a realty that the members of this 
Committee know much better than I do.
    Ms. Hanabusa. Thank you, Mr. Chair. It has gone over but 
thank you. That is what I thought your position was, what you 
said in the end.
    Mr. Young. The arriving star, Mr. Pallone, is now up on the 
stage.
    Mr. Pallone. Mr. Chair, I apologize. I had a markup in my 
other committee, and I was trying to go back and forth but I so 
far have failed, but hopefully now I will be able to hear 
something.
    I just wanted to say that I strongly believe that we must 
fix the failed Supreme Court Carcieri decision and that we have 
a responsibility to do it without delay, but let me ask 
Professor Skibine?
    Mr. Skibine. Skibine.
    Mr. Pallone. Skibine, OK. In your written testimony, 
because I did not hear your oral testimony, but in your written 
testimony you state, and I correctly believe, that there is a 
real danger that if tribal sovereignty is attacked that the 
course of new tribes as regular economic actors. My fear and 
the one that I have heard from some tribes is that local and 
state governments may see a new source of tax revenue.
    So, I wanted to ask you, do you believe the Carcieri 
decision has or could create a situation where local and state 
governments look for ways to tax tribes and businesses on 
tribal land in light of the fact that the courts may now see a 
precedence has been set and perceive tribes as basically 
regular economic actors?
    Mr. Skibine. Well, for sure if the land is not held in 
trust the local communities, the local towns would be able to 
tax it, so yes is the answer.
    Mr. Pallone. And this is what I am hearing from the tribes, 
that that is what their concern is. Thank you.
    Let me ask Susan Adams, it seems to me that the fundamental 
purpose of the Indian Reorganization Act and our role under 
Federal law and the U.S. trust responsibility is to promote 
tribal government sovereignty and to reestablish tribal 
homelands. How far are the counties and local governments 
willing to go to formally support and adopt similar policies? 
And if Ms. Schmit would like to respond too, either one or 
both.
    Ms. Adams. As I stated earlier, in California we have some 
excellent examples of where the tribes have worked very well 
locally with their local community, and wonderful things happen 
in those communities. The concern for us is when that doesn't 
happen, and when there aren't opportunities for local 
government. When tribal issues are given the priority over the 
other local constitute issues, we represent those people as 
well as elected representatives, and when we don't have set 
guidelines or opportunities to be able to clearly begin a 
discussion about some of the issues that are of concern to the 
local communities it can be extremely frustrating.
    Mr. Pallone. You suggest in your written statement that 
fee-to-trusts should be limited to only those tribes who need, 
and I stress the need more land, and I think you analogize the 
executive's role was handing tribes a blank check for 
acquisition of lands, but both bills before the Subcommittee 
today would correct the decision that essentially create two 
classes of tribes, and your suggestion that the Secretary 
further classify Indian tribes based on need, you know, however 
that is defined, I think is contrary to not only the nation's 
fiduciary obligation to the tribes but also to current law, so 
that is my problem in adopting your resolution.
    Ms. Adams. I think that in the issue of making sure that 
all tribes are given equal weight, that is certainly within the 
purview of this committee. The issue for us is this provides an 
opportunity for us to have a conversations about how do we take 
then the next step, and in notifying local government that 
these issues are happening. Right now there are county 
governments that have to do a request for information to get 
that information from the Bureau of Indian Affairs before they 
are even informed that there is an application for fee-to-
trust, and I think that there needs to be a better process to 
at least notify local government to allow local government the 
opportunity to engage in those conversations as some of our 
communities have been able to, and some tribes have been 
wonderful and forthcoming in working very well with their local 
agencies, but I am speaking from the National Association of 
Counties' perspective when that is not the shared experience of 
all of the communities that are working with tribes.
    Mr. Pallone. Did Ms. Schmit want to comment? Did you want 
to comment at all?
    Ms. Schmit. On the notification, improvement in the process 
for notification would be--would be a very good thing. Some 
tribes have submitted an application for land into trust, and 
then for whatever reason have allowed it to go dormant. Well, 
it might be three or four years before a tribe will begin 
working on that application again, and in three or four years 
you can have a change in city council or a county board of 
supervisors, and no one is aware that that fee-to-trust 
application is now on the move.
    I have actually discussed that with the local office, the 
Pacific Regional Office, if they would send out a new 
notification, and they would only send out the new notification 
if the application was going to substantially change, so we may 
not know that there is a fee-to-trust application in place.
    Mr. Pallone. All right, thank you. I know the Chairman is 
holding this hearing today, and there are these two bills out 
there that would correct Carcieri, and I would just lend my 
support to whatever you care to move expeditiously. Thank you, 
Mr. Chairman.
    Mr. Young. I thank the gentleman.
    Mr. Skibine, on page 7 of your written statement you note 
that there was litigation challenging Section 5 of the IRA as a 
violation of the non-delegation doctrine as a result of the 
Department's regulation in 1995 to include some standards, but 
these standards are discretionary. Because of H.R. 1243 or H.R. 
1291 do not contain any standard for taking lands into trust, 
could the Department be exposed to a legal challenge once again 
over the non-delegated doctrine?
    Mr. Skibine. Well, basically I think that, as Mr. Mitchell 
said, challenges to the IRA for not having enough standards 
have been brought under the non-delegation doctrine, and those 
lawsuits have lost at all times, so I think that this 
particular legal issue is behind us. So now in effect we have a 
broad delegation of authority that, you know, there are very 
few standards, and there I agree, I agree with Mitchell, but 
the fact is the BIA over 70 years has come up with, through 
their regulation, substantive standards that have attempted to 
give notice and bring some element of fairness in the system, 
and I think some tribes actually think that there are too many 
standards. Some thing there are not enough standards, but there 
are standards enough, I think, to withstand any kind of 
challenges legally speaking.
    Mr. Young. All right. Mr. Mitchell, in prior correspondence 
with the Committee the Department identified three statutes 
that authorize the Department's administrative process for 
recognizing tribes. Those statutes were Section 2 of the Title 
25, Section 9 of Title 25, and Section 1457 of Title 43 of the 
U.S. Code.
    Do you agree that those statutes delegate the Department 
authority to recognize tribes?
    Mr. Mitchell. Mr. Chairman, I have read those statutes and 
obviously I don't. 25 U.S.C. 2 and 9 were enacted in 1840, and 
one of them, I believe, I am doing this from memory, but 25 
U.S.C. 9, if you read it, it has absolutely nothing whatsoever 
to do with any of this. It has to do with the president doing 
some regulations, and 25 U.S.C. 2 was the statute that was 
enacted in 1843, I think, again I am just making this up, that 
was created because there was no statutory authority for there 
to be a Commissioner of Indian Affairs inside the War 
Department, and after the factory system was disbanded by 
Congress in 1822, this fellow was still wandering around. 
Thomas McKenny was his name. And there was no authority for him 
to have a Federal job, and so the Secretary of War had him type 
up a bill to have Congress give him a job, and that is what the 
legislation--I can provide a legal brief on this. I have 
briefed the history of this in the past.
    As to the last statute, my recollection is that if you read 
it, it has absolutely nothing to do with anything, and I have 
never understood why it has even been on the list. At least 25 
U.S.C. 2 and 9 have something to do with Indians, and I don't 
believe that the third statute does, but as I said, I have not 
read it in awhile.
    Mr. Young. Well, Mr. Mitchell, doesn't that open the 
Department for future lawsuits? Mr. Skibine says that won't 
happen but----
    Mr. Mitchell. Professor Skibine said that he thought that 
litigation over the Section 5 delegation issue was behind us. I 
don't agree. If you read the First Circuit decision in Carcieri 
you would have said, oh, now this decision is behind us. You 
know, who knows?
    When I was young I thought the solution to everyone of 
life's problems was a lawsuit. I now think there is a solution 
to none of life's problems is a lawsuit, and one of the reasons 
is because they are a crap shoot. You have no idea what is 
going to happen. And to say that any of these issues are behind 
us I think is, with all due respect to Professor Skibine, is a 
bit professionally imprudent. We have seen the error of that in 
many other areas.
    But, yes, I think the proper case brought in the right fact 
pattern, I think the Department has significant legal 
vulnerability on the tribal recognition process.
    Mr. Young. One last thing before I have two more questions, 
Mr. Mitchell. I agree with you. We requested that information, 
Doc Hastings did, from the Department, and they danced better 
than a water bug on the water, and I agree. If I have the 
authority to do it, there would not be anything done in their 
favor. In fact, they should not be funded because they were 
actually thumbing their nose at us; not only this 
administration, but it goes on and on and one. That is one 
reason why we are trying to address their--maybe diminish their 
authority in some other areas that may get their attention. So 
it is just a sad thing when they can do it. This Congress 
really acquiesced to the Executive Branch for the last 35 
years, and we should get that answer.
    Susan, are you aware of any tribes that support the 
recommendations for change in the trust land process as 
recommended by the county organization you represent?
    Ms. Adams. We have done some outreach with the tribe, 
including interacting with the California Tribal Business 
Alliance, but at this time we don't have any formal support 
from the tribes on our position.
    Mr. Young. And that would make things difficult, won't it?
    Ms. Adams. Well, it could.
    Mr. Young. Yes. Cheryl, are you aware of cases where the 
Department of the Interior adequately considered the impacts of 
acquiring land in trust on the surrounding communities?
    Ms. Schmit. The most recent one would be in Jamul where the 
tribe was proposing an additional 100 acres to a six-acre 
reservation. They declined that acquisition because there was 
sustained opposition from the county, the citizens, and the 
Governor of the state.
    Mr. Young. So they did listen to you?
    Ms. Schmit. They did in that particular situation, but it 
takes a great effort.
    Mr. Young. Yes, OK. So, I want to thank the panel. Anybody 
else have any other questions? I want to thank the panel and 
for waiting patiently all day. We are going to address this 
issue. You brought up some good points that we may want to add 
to another piece of legislation we will work on because I do 
think we dropped the ball, and you are right, Mr. Mitchell, 
about if you think Congress is tied up now, we will really be 
tied up in the future, and if something doesn't happen in the 
next two weeks we will really be tied up.
    So, thank you for your time and your testimony. Thank you 
very much.
    Ms. Schmit. Thank you sir.
    [Whereupon, at 1:24 p.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [The prepared statement of Mr. Lujan follows:]

Statement of The Honorable Ben Ray Lujan, a Representative in Congress 
  from the State of New Mexico, on H.R. 1291, H.R. 1234, and H.R. 1421

    Mr. Chairman, I would like to thank you for having this important 
hearing today. I also want to thank all of the witnesses and tribal 
leaders we have here today who are speaking about the importance of a 
Carcieri fix.
    This hearing is critical for the future of Indian Country. Since 
1934 the United States government has formed a formal process for 
taking land into trust for Native American tribes as part of their 
responsibility as trustee, and to assist tribal communities with 
becoming self sufficient.
    The Indian Reorganization Act of 1934 had explicit purposes when it 
was created: to conserve and develop Indian lands and resources; to 
extend to Indians the rights to form businesses and other 
organizations; and to grant certain rights of home rule to Indian 
tribes, just to name a few.
    Now we are faced with re-affirming what was established 75 years 
ago in the Indian Reorganization Act--to make clear the 
responsibilities of the Secretary of Interior's ability to take land 
into trust for Indian tribes, and to ensure that the whole of Indian 
Country and the United States do not fall into an endless cycle of 
litigation costing millions of dollars and undoing 75 years of 
administrative practice of the U.S. government.
    A clean Carcieri fix would reaffirm the Secretary of interior's 
authority to place land into trust for federally recognized tribes. 
Without a fix, and without the ability to take land into trust, the 
Secretary of Interior and the federal government will be stripped of 
their ability to carry out their duties as the trustee for many Native 
American tribes, setting government -to-government relationships back 
decades.
    Addressing the Carcieri decision has nothing to do with off-
reservation gaming. And failing to address the Carcieri decision will 
result in two classes of Indian tribes; the ``haves'' and the ``will 
never haves''.
    So with that Mr. Chairman, I urge my colleagues to support a fix, 
to ensure the federal government has the ability to carry out its 
responsibilities as trustee as it has done for 75 years.
    Thank you and I look forward to asking questions.
                                 ______
                                 
    The documents listed below have been retained in the 
Committee's official files.
Aleut Community of St. Paul Tribal Government: Letter from Amos 
        Philemonoff, President, Aleut Community of St. Paul Island, 
        dated July 8, 2011
Anvik Tribal Council: Letter dated July 22, 2011, from Carl Jerue, Jr., 
        First Chief
California Association of Tribal Governments: Letter RE: H.R. 1234 and 
        H.R. 1291
California Coalition Against Gambling Expansion: Statement from Rev. 
        James B. Butler, Executive Director, California Coalition 
        Against Gambling Expansion, opposing H.R. 1291 and H.R. 1234
Goldberg, Carole, Jonathan D. Varat Distinguished Professor of Law, 
        UCLA, and Robert T. Anderson, Professor of Law and Director, 
        Native American Law Center, University of Washington School of 
        Law and Oneida Indian Nation Visiting Professor of Law, Harvard 
        Law School (2010-2015): Statement on H.R. 1234 and H.R. 1291, 
        The Indian Reorganization Act of 1934, July 22, 2011
Gwichyaa Zhee Gwich'in Tribal Government: Statement by Michael Peter, 
        First Chief, Gwichyaa Zhee Gwich'in and Edward Alexander, 
        Second Chief, Gwichyaa Zhee Gwich'in, on proposed amendments to 
        the Indian Reorganization Act of 1934, H.R. 1291 and H.R. 1234 
        dated July 21, 2011
Jacob, Dianne, Supervisor, County of San Diego, California:
        1.  Statement on H.R. 1234 and H.R. 1291
        2.  FTT White Paper: Impacts of Taking Tribal Land into Federal 
        Trust in San Diego County
Madison County, New York Board of Supervisors: Letter and statement 
        from John M. Becker, Chairman, on H.R. 1234 and H.R. 1291, 
        dated July 22, 2011
Morongo Band of Mission Indians: Letter to Mr. Guillot, City of 
        Banning, Planning Department, CA, dated August 30, 2010, RE: 
        Pre-Application Conference #10-11, Fields Cobblestone Homes, 
        Applicant: Lloyd Fields Road & Sullivan Road. APN 532-080-006. 
        Zone: LDR (Low Density Residential), signed by G. Michael 
        Milhiser, Chief Administrative Officer of Morongo Band of 
        Mission Indians
Preservation of Santa Ynez, Posy:Letter RE: ``Carcieri Fix'', in the 
        matter of H.R. 1291 and H.R. 1234, dated July 22, 2011, Letter 
        to Mr. James J. Fletcher, Superintendent, U.S. Department of 
        Interior, Bureau of Indian Affairs, from the Office of Governor 
        Arnold Schwarzenegger, dated August 26, 2005, RE: Notice of 
        Non-Gaming Land Acquisition (S.68 Acres) Santa Ynez Band of 
        Mission Indians
The Board of Preservation of Los Olivos, P.O.L.O., a grassroots citizen 
        group on behalf of citizens of the Santa Ynez Valley, and Santa 
        Barbara County, CA: Statement on H.R. 1291 and H.R. 1234
Schmit, Cheryl, Director, Stand Up For California:
        1.  Aerial Photo of Road Block
        2.  Alaska Federation of Natives, July 11, 2011, Comments on 
        H.R. 1291 and H.R. 1234 RE: Proposed Amendments to the Indian 
        Reorganization Act of 1934, addressed to Eric Shepard, Attorney 
        General, Colorado River Indian Tribes, signed by Julie Kitka, 
        President
        3.  Letter from the Office of Governor Arnold Schwarzenegger, 
        September 12, 2008, RE: Colorado River Indian Tides Indian 
        Lands, signed by Andrea Lynn Hoch, Legal Affairs Secretary
        4.  Letter from Stanley Sniff, Sheriff-Coroner, Riverside 
        County, dated July 28, 2008
        5.  Letter to The Honorable Don Young, Chairman, Subcommittee 
        on Indian and Alaska Native Affairs, dated July 22, 2011, RE: 
        correction to statement made at July 12 Hearing
Soboba Band of Luiseno Indians: ``Response of Soboba Band of Luiseno 
        Indians to False and Misleading Testimony of Cheryl Schmit of 
        Stand Up For California!''
Tanana Chiefs Conference: Letter and Statement from Jerry Isaac, 
        President, Tanana Chiefs Conference, RE: proposed amendments to 
        the Indian Reorganization Act of 1943, H.R. 1291 and H.R. 1234
Tlingit and Haida Indian Tribes of Alaska: Letter from Edward K. 
        Thomas, President, Tlingit and Haida Indian Tribes of Alaska, 
        on H.R. 1291, Proposed Amendment to the Indian Reorganization 
        Act of 1943, dated July 18, 2011
Trepp, Robert W., Muscogee (Creek) Nation in Oklahoma: Statement H.R. 
        1291 and H.R. 1234, dated July 12, 2011

                                 
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