[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
Committee address: http://naturalresources.house.gov
----------
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Washington, DC 20402-0001
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