[Senate Hearing 112-626]
[From the U.S. Government Publishing Office]
S. Hrg. 112-626
S. 356, S. 908, AND S. 1739
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SECOND SESSION
ON
S. 356, A BILL TO AMEND THE GRAND RONDE RESERVATION ACT TO MAKE
TECHNICAL CORRECTIONS, AND FOR OTHER PURPOSES
S. 908, A BILL TO PROVIDE FOR THE ADDITION OF CERTAIN REAL PROPERTY TO
THE RESERVATION OF THE SILETZ TRIBE IN THE STATE OF OREGON
S. 1739, A BILL TO PROVIDE FOR THE USE AND DISTRIBUTION OF JUDGMENT
FUNDS AWARDED TO THE MINNESOTA CHIPPEWA TRIBE BY THE UNITED STATES
COURT OF FEDERAL CLAIMS IN DOCKET NUMBERS 19 AND 188, AND FOR OTHER
PURPOSES
__________
FEBRUARY 2, 2012
__________
Printed for the use of the Committee on Indian Affairs
U.S. GOVERNMENT PRINTING OFFICE
75-372 WASHINGTON : 2012
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on February 2, 2012................................. 1
Statement of Senator Akaka....................................... 1
Prepared statement........................................... 1
Statement of Senator Barrasso.................................... 43
Statement of Senator Franken..................................... 2
Statement of Senator Merkley..................................... 3
Witnesses
Deschampe, Hon. Norman W., President, Minnesota Chippewa Tribe... 4
Prepared statement........................................... 7
Garcia, Hon. Robert, Chairman, Confederated Tribes of Coos, Lower
Umpqua and Siuslaw Indians..................................... 36
Prepared statement........................................... 38
Kennedy, Hon. Cheryle, Tribal Council Chairwoman, Confederated
Tribes of Grand Ronde, Oregon.................................. 20
Prepared statement........................................... 22
LaRose, Hon. Arthur, Chairman, Leech Lake Band of Ojibwe......... 9
Prepared statement........................................... 11
Pigsley, Hon. Delores, Chairman, Confederated Tribes of Siletz
Indians, Oregon................................................ 25
Prepared statement........................................... 27
Appendix
Anderson, Marge, Chief Executive, Mille Lacs Band of Ojibwe
Indians, prepared statement.................................... 53
Black, Mike S., Director, Bureau of Indian Affairs, U.S.
Department of the Interior, prepared statement................. 49
Fry, Hon. Donald L., Chairman, Confederated Tribes of the Lower
Rogue, prepared statement...................................... 59
Leecy, Hon. Kevin W., (Chairman) and David C. Morrison, Sr.
(Secretary-Treasurer), Bois Forte Band of Chippewa, prepared
statement...................................................... 56
Vizenor, Hon. Erma J., Chairwoman, White Earth Tribal Nation,
prepared statement............................................. 57
Wilkinson, Charles, Distinguished Professor/Moses Lasky Professor
of Law, University of Colorado, prepared statement............. 58
S. 356, S. 908, AND S. 1739
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THURSDAY, FEBRUARY 2, 2012
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 5:53 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. The Committee will come to order.
Aloha, and I want to start by thanking all of you for being
with us today and staying while the 18 votes were completed. I
wanted to do this hearing anyway, and I am glad you are patient
enough to be here.
The fact that all the Tribal leaders stayed with us despite
the long delays highlights how important these bills are to
each of the Tribes and their members.
For purposes of hearing from all of the witnesses in a
timely manner, my full opening statement will be entered into
the record. The views of the Department of the Interior will
also be entered into the official record. I encourage any other
interested parties to submit written comments to the Committee.
And the hearing record will remain open for two weeks.
I know my good friends and colleagues, Senators Franken,
Merkley and Wyden have done a significant amount of work on
these bills. I look forward to working with all of them as we
move these bills through Congress.
Again, I want to welcome Senator Merkley. Let me welcome
also my good friend and member of the Committee Senator Al
Franken, and ask for any comments he may have at this time.
[The prepared statement of Senator Akaka follows:]
Prepared Statement of Hon. Daniel K. Akaka, U.S. Senator From Hawaii
Aloha! Today the Committee will hold a legislative hearing on three
bills dealing with issues of great importance to the Tribes involved.
We are all aware that prior federal policies often resulted in
significant land and resource losses for Tribes. The bills we will
consider today seek to restore some of those losses and make sure
Tribes are adequately compensated for those losses and ensure Tribal
land bases are restored.
The first bill S. 1739, the ``Minnesota Chippewa Tribe Judgment
Fund Distribution Act of 2011'' would distribute settlement funds to
the Minnesota Chippewa Tribe. Senator Franken introduced this bill and
I am certain he will have more to say about it in his opening
statement.
The other bills we will hear about today would streamline the land
into trust process for two restored Oregon Tribes so they can better
provide for the housing, education, and infrastructure needs of their
members.
I know that my good friends and colleagues Senators Merkley and
Wyden have done a significant amount of work on these bills. I look
forward to working with them and Senator Franken as we move these bills
through Congress.
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Thank you, Mr. Chairman, for holding this
important hearing. I introduced the Minnesota Chippewa Tribe
Judgment Fund Distribution Act with my friend and colleague
from Minnesota, Senator Klobuchar. This legislation will
finally allow for distribution of funds owed to the Minnesota
Chippewa Tribe.
It has been a long road getting to this point. The
Minnesota Chippewa Tribe first filed a claim before the Indian
Claims Commission in 1948. Their claims were finally settled in
1999. For over 60 years, members of the Minesota Chippewa have
been waiting for these funds, and it is time to get this done.
The United States Court of Federal Claims awarded $20
million to the Minnesota Chippewa Tribe. This money is to
compensate Tribal members for the improper taking and sale of
land and timber under the Nelson Act of 1889. The Federal
Government owes the Minnesota Chippewa Tribe this money. In
fact, in 1999, the $20 million settlement was deposited in a
trust fund account for the Minnesota Chippewa at the Department
of the Interior, where it has been since collecting 1 percent
interest.
The Tribal members in my home State of Minnesota have never
received a dime. And that is because before any money can go to
the Tribe, Congress must pass legislation detailing how to
allocate the funds between the six bands that make up the
Minnesota Chippewa Tribe. My bill does just that. It will
provide $300 to each Tribal member and then allocates the
remaining funds equally to each of the six bands.
My bill reflects the distribution plan that was agreed upon
by the Tribe through its sovereign, democratic processes. Under
the Minnesota Chippewa Tribal constitution, the Tribe is
governed by an executive committee. This is a democratic body
comprised of two elected officials from each of the Tribe's
bands.
The Tribal executive committee voted ten to two in favor of
this distribution plan. One band, Leech Lake, voted against.
And its esteemed chairman, Archie LaRose, is here today to
testify. I am sympathetic to their concerns and I sincerely
hoped that a consensus agreement could have been reached.
However, I deeply respect Tribal sovereignty and therefore
believe we must respect the decision of the Tribal executive
committee of the Minnesota Chippewa.
I also worry that any further delay will only cause
hardship for individual Tribal members. The thousands of Tribal
members across Minnesota cannot afford to wait another decade.
It is time for Congress to act to allow for the distribution of
the funds owed to the Minnesota Chippewa Tribe.
Thank you again, Mr. Chairman, for holding this hearing. We
have so many members of the Tribes who have come here, and I am
so sorry that we had all those votes in the chamber and we got
started so late. I am sure you made mention of that at the
beginning of this hearing. I want to thank all the witnesses
for coming today and I look forward to your testimony.
I thank you again, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
Now I welcome Senator Merkley of Oregon to speak on the
bills impacting the Siletz and Grande Ronde Tribes. Thank you
for being patient, too, Senator Merkley. Please proceed with
your testimony.
STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM OREGON
Senator Merkley. Thank you very much, Mr. Chairman, for
holding this hearing. I would also like to recognize the staff
of the Indian Affairs Committee for their hard work on these
issues.
We have coming before the Committee this evening Chair
Kennedy, the Confederated Tribes of the Grand Ronde Community,
Chair Pigsley, of the Confederated Tribes of the Siletz Indians
of Oregon, and Chair Garcia of the Confederated Tribes of the
Coos, Lower Umpqua and Siuslaw Indians. I am delighted that
they can all be here to share their thoughts directly with the
Committee.
I appreciate that the Committee is considering Senate Bill
356 and Senate Bill 908, both of which I have co-sponsored.
They address a fundamental issue facing Indian Tribes, that is,
ensuring that Tribal communities are able to successfully
secure their own future through the expansion of their Tribal
reservations.
The story of the people who comprise the Confederated
Tribes of the Grand Ronde and the people who comprise the
Confederated Tribes of the Siletz Indians is a difficult story
to tell, a complicated story. But it is one that has been and
continues to be inspiring. Like many other communities in
Oregon and the Pacific Northwest, the bands of Indians that
make up the two Confederated Tribes suffered through decades
upon decades of broken treaties, failed promises and neglect on
the part of the Federal Government. Ultimately, the Federal
Government terminated the trust status of both Tribes.
It was only through very hard work on the part of the
groups themselves and some representatives in Congress that led
to Congress restoring and reestablishing the trust relationship
with the Tribes. And in this case, I want to particularly thank
Senator Hatfield, who served in this body for 30 years, and I
had the privilege of serving as an intern to him and saw how
hard he worked on behalf of fairness and restoring the trust
relationships.
In the years since restoration, both Tribes have worked to
rebuild their communities. Of course, a critical piece of
rebuilding includes the purchase of land for the expansion of
the reservations. Unfortunately, as this Committee knows well,
the current process that a Tribe must follow to restore land to
a reservation is not an easy process and has not worked well
for these two Tribes. As the Committee will hear during
testimony this afternoon, the current process is not only
cumbersome and expensive for the Tribes to follow, it also will
often take years and years for the land which is owned by the
Tribe to be formally added and recognized as part of the
reservation.
I firmly believe that the two bills before this Committee
simplify the process and should receive favorable
consideration. I certainly look forward to reviewing the
testimony of all the leaders who have gathered this afternoon,
and I certainly appreciate that three leaders from Oregon can
come to share their thoughts. I thank all of you for your
commitment to improving the current fee to trust process and
your participation in this evening's hearing.
Thank you.
The Chairman. Thank you very much. And I thank you again,
Senator Merkley, for your participation in this hearing. Thank
you.
I would like to now invite the first panel to the witness
table. Serving our first panel is the Honorable Norman
Deschampe, President of the Minnesota Chippewa Tribe; the
Honorable Arthur LaRose, Chairman of the Leech Lake Band of
Ojibwe; the Honorable Cheryle Kennedy, Chairwoman of the
Confederated Tribes of Grand Ronde Community; the Honorable
Delores Pigsley, Chairman of the Confederated Tribes of Siletz
Indians; and the Honorable Robert Garcia, Chairman of the
Confederated Tribes of the Coos, Lower Umpqua and Siuslaw
Indians.
Welcome, everyone, and thank you so much for your patience.
Mr. Deschampe, please proceed with your testimony.
STATEMENT OF HON. NORMAN W. DESCHAMPE, PRESIDENT, MINNESOTA
CHIPPEWA TRIBE
Mr. Deschampe. Thank you, Chairman Akaka and members of the
Committee. My name is Norman Deschampe, I am President of the
Minnesota Chippewa Tribe as well as Chairman of the Grand
Portage Band of Lake Superior Chippewa Indians.
I am here in support of S. 1739, a bill that would provide
for the use and distribution of the funds awarded to the
Minnesota Chippewa Tribe in Minnesota Chippewa Tribe v. United
States, Dockets Nos. 19 and 188, United States Court of Federal
Claims.
Also with me are Chairman Leecy from the Bois Forte
Reservation, Chief Executive Marge Anderson from Mille Lacs,
Chairman Visinor from White Earth, and Chairman Diver had to
leave. So they are here also.
I support S. 1739 because it provides for the distribution
of funds being held in trust for the Minnesota Chippewa Tribe
in the manner determined by the Tribal Executive Committee of
the Tribe. I also support it because it is a just way to
allocate the funds.
Pursuant to the Revised Constitution and Bylaws of the
Minnesota Chippewa Tribe, the governing body of the Tribe is
the Tribal Executive Committee. The Minnesota Chippewa was a
plaintiff in the cases known as the Nelson Act Claims. I think
it is important for you to know that all of the decisions about
the claims were made by the Minnesota Chippewa Tribal Executive
Committee. The Tribal Executive Committee decided to bring the
claims, it decided the strategy for the claims, and it also
decided to settle the claims. And when we needed money to
pursue the claims, it was the Tribal Executive Committee that
borrowed the money to make that possible.
In 1999, the Tribal Executive Committee approved the
settlement by resolution and again in 1999 the Tribal Executive
Committee decided to allocate the funds on an equal basis to
each of the six member reservations. We decided on equal shares
because each of the Bands had loaned the same amount to the
Tribe to support the claims effort.
For years, we have not succeeded in getting the funds
released. Following a hearing in the House of Representatives
in 2008 and an apparent stalemate, the Tribal Executive
Committee once again considered different ways to allocate the
award. And in October 2009, a resolution approving a new
distribution plan was enacted. The distribution plan in that
resolution is reflected in S. 1739 and it effectively provides
more to the bands with greater populations through the per
capita payments to members. I believe that the compromise
adopted by the Tribal Executive Committee should become law so
that we can finally get the benefit of what was awarded in
1999.
The Minnesota Chippewa Tribe appreciate Senator Franken's
assistance in this matter. He understands that the constitution
of the Tribe established a governmental structure that
authorizes the Tribal Executive Committee to make decisions
that affect the Tribe as a whole. Our constitution specifically
gives the Tribal Executive Committee authority to allocate
funds belonging to the Tribe. Article V, Section 1(d) of our
Constitution provides that the Tribal Executive Committee has
the power to administer any funds within the control of the
Tribe and to apportion all funds within its control to the
various reservations. That is what these fund are, they are
Tribal funds, and they have been Tribal funds since 1999 when
they were deposited into a trust account for the Tribe.
Senator Franken's bill also recognizes that the beneficiary
of the claims award is the Minnesota Chippewa Tribe. The bill
acknowledges what the Tribal Executive Committee knew from the
very beginning, that we were going to bring the claim as the
Minnesota Chippewa Tribe and that we would decide how to
allocate any recovery.
We need these funds released now. It has been too long and
our members are constantly asking about the Nelson Act claims.
In addition, a small part of the distribution plan in S. 1739
is that the Tribal government can be reimbursed the expenses it
has incurred. This is important, because the Tribe has carried
that amount on its books and the result has been a negative
balance on our account. Our auditors have made it an issue and
we have had to borrow to stay above water. Perhaps the Federal
Government can do that, but we cannot. Just two weeks ago, the
Tribe was denied a $25,000 grant for a program for elders
because of that audit issue. As I said, it is time to get these
fund distributed.
Finally, I want you to know that the Tribal leadership has
carefully considered Leech Lake's argument that it should
receive 68.9 percent of the award because it suffered that
amount of the damages. Chairman Goggleye made that argument in
his testimony before the House Resources Committee on June 5,
2008, and Chairman LaRose has made that same argument time
after time before the Tribal Executive Committee. The problem
with that argument is that it is based only on speculation and
not on any court findings. My written testimony explains the
problems with Leech Lake's claim in full detail, but I want to
make it clear that over nearly 20 years, the Tribe has
considered all arguments about what is fair, and the result is
the formula in Senator Franken's bill.
Our Senators understand that this is a Tribal fund that
must be allocated in deference to the Tribal government's
decision. I urge you to join them and pass this bill. Thank
you.
[The prepared statement of Mr. Deschampe follows:]
Prepared Statement of Hon. Norman W. Deschampe, President, Minnesota
Chippewa Tribe
*Attachments retained in Committee files*
The Chairman. Thank you very much.
Let me call on Chairman LaRose for your testimony. Please
proceed.
STATEMENT OF HON. ARTHUR LaROSE, CHAIRMAN, LEECH LAKE BAND OF
OJIBWE
Mr. LaRose. Good afternoon, Chairman Akaka and Senator
Franken. My name is Archie LaRose, I am the Leech Lake
Reservation Chairman.
On behalf of my people watching and listening at home, I
want to thank you for giving me this opportunity. You have
heard some history behind the settlement. I am here to tell the
rest of the story. Leech Lake suffered 68.9 percent of the
damages. S. 1739 does not reflect the harm done to my people.
That is why we strongly oppose the bill.
The story starts with the establishment of the Leech Lake
Reservation. My ancestors entered into a series of treaties and
executive orders from 1855 to 1874. These treaties promised
that the reservation would be our permanent home lands forever.
Back in 1874, our closed reservation consisted of 640,000
acres. We owned it all. Under the Nelson Act, our reservation
was cut to less than 40,000 acres.
According to the map there, this map compares our treaty
reservation with our reservation today. Our current trust lands
are highlighted in red. You can barely see them. They total
less than 30,000 acres. This gives you an idea of the damages
the Nelson Act inflicted on our reservation.
I am here today more than a century later to ask the
Committee to right this wrong and not compound our problem
under this bill. The bill directs the Secretary to distribute
the settlement fund based on a proposal by the Minnesota
Chippewa Tribe. It does not honor sovereignty; it ignores
fairness; and it only satisfies the four smaller bands.
Congress passed the Indian Tribal Judgment Funds Act to set
up an administrative process when there is a disagreement in
the distribution of settlement funds. The Act takes politics
out of the equation. This is a court settlement. But unless we
know who was harmed, Congress is giving settlement funds that
belong to one Tribe to other Tribes. The BIA did its job under
the Judgment Fund Act. The BIA studied the case and in 2001,
found that there is no compelling reason to give preferential
treatment to the four smaller bands. The four smaller bands
control the MCT. And they want to collect payment for harm
suffered by Leech Lake.
The MCT hired an expert to justify the settlement amount.
The expert found that Leech Lake suffered 68.9 percent of the
damages. The amounts of damages for other bands ranged from 1
percent to 12 percent.
In 1999, the MCT used this report to advance the
settlement. MCT now wants to sweep it under the rug. The DOJ
also filed a property list with the court that the settlement
is based on. This list shows that most lands from the
settlement came from the Leech Lake reservation to form the
Chippewa National Forest. In 1999, the court based the
settlement on damages. Unfortunately, damages are not even
considered in the bill before the Committee today.
Instead of asking who was harmed, the bill looks to an MCT
resolution that would give bands who suffered as little as 0.9
percent damages the same share as Leech Lake, who suffered 68.9
percent of the damages. In addition, Grand Portage, Fond du
Lac, and Bois Forte relinquished all claims to our lands
involved in this settlement in the 1854 treaty. Our reservation
was established long before the MCT was even formed. None of
our treaty rights were delegated to the MCT. Likewise, the
Nelson Act and the damages inflicted occurred long before the
MCT existed.
Federal courts have also ruled that the MCT acts only in a
representative capacity. The MCT is not a beneficiary. They
have no treaties. Federal courts in at least 25 other Nelson
Act claims made awards to the individual bands based on which
of the treaty bands had a legal treaty right to the settlement
funds.
If Congress is going to ignore the Judgment Funds Act, it
should at least look to those cases. After 25 courts issued
judgments based on damages, it makes no sense to now ignore
damages. We have been trying to negotiate a fair distribution.
However, if this bill is enacted without a compromise, we will
bring a lawsuit to stop this unjust distribution. This bill
doesn't meet judicial scrutiny. It gives the property of Leech
Lake to the other bands. This clearly violates your
constitutional responsibilities to protect our Tribal property
and treaty rights.
The bill disrespects Leech Lake's sovereignty. It compounds
the injustice done to our treaties, our lands, and our people.
In our view, a consensus position is the only way to resolve
this.
Thank you for this opportunity. Mii-gwich.
[The prepared statement of Mr. LaRose follows:]
Prepared Statement of Hon. Arthur LaRose, Chairman, Leech Lake Band of
Ojibwe
*Attachments retained in Committee files*
The Chairman. Thank you very much, Chairman LaRose.
Chairwoman Kennedy, would you please proceed with your
testimony?
STATEMENT OF HON. CHERYLE KENNEDY, TRIBAL COUNCIL CHAIRWOMAN,
CONFEDERATED TRIBES OF GRAND RONDE, OREGON
Ms. Kennedy. Thank you Chairman Akaka, Senator Franken.
My name is Cheryle Kennedy, I am the Tribal Chairwoman of
the Confederated Tribes of Grand Ronde in Oregon. I appreciate
your time and for affording me the ability to testify on S.
356, a bill to amend the Grand Ronde Reservation Act, to make
technical corrections and S. 908, a bill to provide for the
addition of certain real properties to the reservation of the
Siletz Tribe in Oregon.
S. 356, Grand Ronde, is a common sense approach to
streamlining the BIA process for putting land into trust. As
Senator Merkley articulated, the Tribes of Oregon suffered
great injustices, including termination, which took all of our
land holdings. That is the basis for our testimony here.
In 1983, we were restored, and in 1988, the Tribe pursued
the goal of securing its sovereignty by acquiring additional
parcels of its original reservation and providing on-
reservation jobs and services to Tribal members. Today the
Tribe owns a total of 12,500 acres, in various lands of either
some in reservation status or fee or that are in the pile to go
to be approved for in trust status.
The Tribe is hampered in its effort to restore land within
its original reservation by a lengthy and cumbersome Bureau of
Indian Affairs process. The lands that we are talking about
here are treated as off-reservation designation, even though
the lands that we purchased are across from our reservation. It
means that we go through a more rigorous process of scrutiny,
of filing plans, and then after even that process is through by
the BIA, we then have to come back here to Congress to amend
our Grand Ronde Restoration Act to include those lands into our
reservation land bases.
In order to make both the fee in trust to trust and
reservation designation process less cumbersome, Senator
Merkley and Senator Wyden introduced S. 356, which would
establish real property located within the boundaries of the
Tribe's original reservation. They shall be treated as on-
reservation land, a very important point, for the purpose of
processing acquisitions of real property into trust, and deemed
a part of the Tribe's reservation once taken into trust,
establish that the Tribe's land held in trust on the date of
the legislation would automatically become part of the Tribe's
reservation and correct technical errors in the legal
descriptions of the parcels included in the Reservation Act.
House companion legislation, H.R. 726, was introduced by
Representative Kurt Schrader, Representative Bluemenauer and
Representative DeFazio. Both S. 356 and H.R. 726 have the
unanimous support of Polk and Yamhill County Commissioners, the
two counties affected by this bill.
In order to streamline this, it would save the Tribe a lot
of resources and funds. It would also eliminate a lot of the
time that the Bureau has to spend in processing these
applications, and of course, the Congressional time for when we
come back here to change our reservation bill.
Senate 908, the Siletz legislation, is materially different
from our bill, to amend the Grand Ronde Reservation. And this
would significantly infringe on the rights of Grand Ronde and
other Tribes in western Oregon. S. 908 does nothing to
streamline or improve the process by which lands are taken into
trust or given reservation status. In fact, it does the
opposite. It is precedent-setting and is not good Indian
policy.
We support the Siletz' objective of taking land into trust
in Lincoln County as contained in the Siletz Indian Tribe
Restoration Act, but not rewriting history to expand the Siletz
Reservation. I urge the Committee not to proceed with further
consideration unless these issues are remedied. We do support
the effort that other Tribes have made in making sure that the
land into trust process goes well and is streamlined.
I thank you and I thank my people for putting together and
standing behind us as we present this bill, in all due respect
to the Siletz Tribe.
[The prepared statement of Ms. Kennedy follows:]
Prepared Statement of Hon. Cheryle Kennedy, Tribal Council Chairwoman,
Confederated Tribes of Grand Ronde, Oregon
*Attachments retained in Committee files*
The Chairman. Thank you very much, Chairwoman Kennedy.
Ms. Pigsley, will you please proceed with your testimony?
STATEMENT OF HON. DELORES PIGSLEY, CHAIRMAN, CONFEDERATED
TRIBES OF SILETZ INDIANS, OREGON
Ms. Pigsley. Yes, thank you. My name is Delores Pigsley and
I am the Chairman of the Confederated Tribes of Siletz Indians
in Oregon. I too want to thank the Committee for allowing me to
testify today in support of S. 908, legislation to designate
the original 1855 Siletz Reservation as on-reservation for
purposes of processing our Tribe's fee to trust applications.
I also want to thank Senators Wyden and Merkley for
sponsoring this important legislation. This bill has been a
long time in coming and is sorely needed by the Siletz Tribe to
fully achieve the restoration that was started in 1977. We have
submitted written testimony and exhibits, which we ask be made
part of the record.
The Siletz Tribe, for 200 years, has survived every
negative policy thrown at it by the Federal Government. The
Tribe's history is set out in great detail in Professor Charles
Wilkinson's recent history of the Siletz Tribe, called The
People Are Dancing Again. The Tribe is not one single historic
Tribe; rather, it is a confederation of approximately 30 Tribes
and bands of Indians covering all of western Oregon. We were
thrown together under a Federal policy in the 1850s to combine
as many Tribes as possible on one Reservation.
The Tribes and bands that make up the Siletz ceded
approximately 22 million acres in a series of ratified and non-
ratified treaties, and were moved to a 1.1 million acre
reservation that stretched over 100 miles along the Oregon
coast. We have a map to show you what it looks like. All of the
30 Tribes and bands were moved to the Siletz Reservation by the
Federal Government. The reservation was slowly taken away by
executive order, by statute, the Allotment Act, and finally by
termination in 1954, until the Tribe was left with nothing.
The Siletz Tribe was restored to Federal recognition by
Congress in 1977, the second Tribe in the Nation, but without
any land base. A reservation bill was ultimately passed by
Congress in 1980 establishing a Siletz reservation. The
reservation that was established was a modest 3,600 acres of
scattered timber lands, designed to support Tribal government,
a Tribal cemetery, and pow-wow grounds. Since that time, the
Tribe has added more than 800 acres in trust. The Tribe has
purchased land that were once allotments and tried to build a
land base.
The need for additional land is still great. The modest
amount of land the Tribe has acquired in trust has not met even
our most modest needs. The fee to trust process has been
completely frustrating for the Siletz Tribe and has taken years
to acquire land in trust. And the Tribe has currently seven fee
to trust requests that have been pending for several years.
Because the Tribe's restored lands consists of 52 scattered
parcels of trust land without an exterior reservation boundary,
the Bureau of Indian Affairs reviews all of our trust
applications under the more restrictive and difficult off-
reservation criteria. The Tribe has to prove a higher
justification for taking land into trust, and go through
additional procedural hoops, even for land that is adjacent to
our reservation.
S. 908 will place the Tribe in the same position as other
Tribes with regard to fee to trust requests as Tribes with
existing reservations and exterior boundaries. It does not
create a reservation. It does not establish Siletz Tribal
jurisdiction over the area, and it does not affect the rights
of any other Tribe.
The first issue that we had discussed with this legislation
many, many years ago was to be able to act like any other
Tribe. Because we are a restored Tribe that wasn't possible.
And with the taking of all of our land and trying to get it
restored under a simple process, it is just not there. And we
wanted also to respond to issues in our bill that the Bureau
and other Tribes have taken issue to, which is the issue with
the county provision. It was a provision that Lincoln County
wanted to have in the bill. We suggested it would not likely
pass, and actually, we would like to have that provision
removed from the bill.
We also wanted to briefly respond to statements that are on
the record with regard to the Coos Tribe, Lower Umpqua and
Siuslaw, to talk about the removal of those Tribes to the
Siletz Reservation. We have many members on our reservation who
are descendants of these three Tribes. The modern day Coos
Tribe is comprised of off-reservation Coos, Lower Umpqua and
Siuslaw Indians who either never moved to the Siletz
Reservation or who individually left the Siletz Reservation.
They renounced any connection to the reservation. Federal case
law clearly rejects their claims to anything on the Siletz
Reservation.
Secondly, the Grand Ronde Tribe's claim to the Siletz
coastward reservation were made and rejected in several court
claims. They have no legal basis and are contrary to existing
Federal law. The Grand Ronde Tribe is the Indian Tribe
recognized by the Federal Government with authority over the
Grand Ronde Reservation. They were never part of the Siletz
Reservation.
The Grand Ronde Tribe Restoration Act says specifically
that their Tribe is comprised of Indians from the Willamette
Valley who were settled on the Grand Ronde Reservation. There
is no mention of the Siletz Coast Reservation or any claim of
the Grand Ronde Tribe to the Siletz Coast Reservation and it
doesn't appear anywhere in history.
We support, very much support a Carcieri fix. I know that
has been discussed by many Tribes across the Nation, a fix to
legislation that settles who is an Indian Tribe and what Tribe
has a right to take land into trust. And how that gets fixed we
don't know. But we know, Senator Akaka, that you have worked
toward a fix, and we truly support your efforts. We have sent
letters in support of your efforts.
That concludes my testimony.
[The prepared statement of Ms. Pigsley follows:]
Prepared Statement of Hon. Delores Pigsley, Chairman, Confederated
Tribes of Siletz Indians, Oregon
*Attachments retained in Committee files*
The Chairman. Thank you very much, Chairman Pigsley.
Chairman Garcia, please proceed with your testimony.
STATEMENT OF HON. ROBERT GARCIA, CHAIRMAN,
CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SIUSLAW INDIANS
Mr. Garcia. Thank you very much, Chairman Akaka, members of
the Committee. My name is Robert Garcia. I am an enrolled
member and Chairman of the Confederated Tribes of Coos, Lower
Umpqua and Siuslaw Indians.
I appreciate the opportunity to be here. We support helping
Tribes getting land into trust for a variety of purposes. It is
a goal we share. Unfortunately, we cannot support Senate Bill
908 as introduced. This bill gives unfair advantage to one
Tribe over others with similar claims to the land.
But before turning to our specific concerns, I want to
provide the Committee with some relevant history. The Coos,
Lower Umpqua and Siuslaw live on approximately 1.6 million
acres of our ancestral lands outlined by the blue boundary on
our maps with our written testimony. Members of the Coos and
Lower Umpqua Tribes were forcibly removed in 1860 from our
ancestral lands, moved north to the reservation established by
executive order by President Pierced in the fall of 1855. The
boundaries of that reservation are outlined in red on the
submitted map.
The solid yellow region on the map is the area of overlap
between the reservation established by President Pierce and our
ancestral lands. While the Coos and Lower Umpqua were forcibly
removed to the reservation, the Siuslaw Indians remained in
their homeland. Indeed, we believe the 1855 Coast Reservation
referred to in S. 908 might as accurately be called the Siuslaw
Coast Reservation as it can be called the Siletz Coast
Reservation.
Our existence has been acknowledged by the Federal
Government at least since the summer of 1855, when Joel Palmer
negotiated on behalf of the United States the Empire Treaty
with our Tribes and others. Neither the reservation referred to
in the Empire Treaty nor the reservation referred to in Senate
Bill 908 were established by ratified treaty. The Coast
Reservation is shared by many Tribes, including ourselves and
the Siletz.
The United States terminated our Tribe in 1954, and we were
restored in 1984 by the Coos, Lower Umpqua and Siuslaw
Restoration Act. We have since established a casino, Three
Rivers Casino, and built Tribal housing near Florence near the
heart of our Siuslaw lands, while our Tribal headquarters is
based in Coos Bay, situated in our Coos territories. Today we
provide approximately 600 jobs for Indians and non-Indians
alike.
We support Senators Wyden and Merkley for introducing S.
356 and S. 908. They understand the emotive and tangible
connection between Native peoples and our aboriginal lands.
Indeed, we have our own aspirations for acquiring more
homelands. While we have no concerns about S. 356, we support
it and applaud the delegation for helping the Tribe secure its
land aspiration in a targeted way that avoids impinging on the
interests of other Tribes.
We object to Senate Bill 908. We do not agree that the
Siletz Tribe is the successor Tribe to the Oregon Coast
Reservation. And we believe that S. 908 has fairness and equity
problems. We are going to leave the county government issue to
others and move on. But under S. 908, the Siletz, and only the
Siletz, are entitled to have treated as an on-reservation
acquisition all property they propose for trust within the
800,000 Coast reservation. To give the Siletz favorable
treatment with respect to all of this land is unsupported by
law, is historically inaccurate and is just plain unfair to my
people.
Siletz currently have on-reservation status for lands
within the reservation established as a result of the
restoration in Lincoln County. S. 908 expands that reservation
status to 800,000 acres of the Coast Reservation, a reservation
we feel is shared by many Tribes. But only gives reservation
status on those lands for the Siletz. Our Tribe has a casino,
Three Rivers Casino, as previously mentioned, in Florence,
Oregon, centered in our Siuslaw lands. Under S. 908, our casino
would be in the midst of their reservation. If we buy land for
housing Tribal members in our Siuslaw lands, it would be
considered on the Siletz reservation.
The Siletz and we have both intended to purchase property
for timber. Suppose both Tribes of the adjacent lands wish to
place them in trust. If S. 908 becomes law, the Siletz would be
free of the obligation to satisfy the Secretary's escalated
scrutiny for acquisition far distant from the Tribe's
headquarters. If the acquisition were proposed for business
purposes, the Siletz would not be required to provide the
Secretary with a business plan to show the anticipated economic
benefits of the proposed use. Finally, the Siletz acquisition
would be processed within 30 days and without notice to the
State and local government.
In contrast, our application for adjacent parcels would be
subject to exacting scrutiny by the Secretary. We would be
required to write a business plan and we would then be required
to give notice and allow for comment by State and local
governments. This distinction is not justified by history or by
law. It is inherently unfair.
The complex history of Tribes on the Oregon Coast
demonstrates that it would be an error to jump to the
conclusion that the reservation created by President Pierce
conveyed special status to the Siletz then, or supports today
Congress extending such unfair advantage.
In conclusion, I would like to paraphrase George Orwell in
1984: S. 908 makes some Tribes more equal to others. And we do
not believe that is fair or right.
Thank you very much.
[The prepared statement of Mr. Garcia follows:]
Prepared Statement of Hon. Robert Garcia, Chairman, Confederated Tribes
of Coos, Lower Umpqua and Siuslaw Indians
The Chairman. Thank you very much, Chairman Garcia, for
your testimony.
I would like to call on our Vice Chairman for any remarks
that he may have. Senator Barrasso?
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. First
of all, I would like to thank the witnesses for your patience
in waiting for us to finish with the votes. I know you here
today are here because you have a lot at stake. The bills
involve issues of critical importance to the Tribes and they
are issues that we need to look at very carefully. So I
appreciate your patience, I also want to thank the staff.
Since we do things, Mr. Chairman, in a bipartisan way, you
know that the staffs are here late at night, both sides of the
aisle, because of their commitment. I also want to thank
Senator Franken for being here, and specifically you, Mr.
Chairman, for your gracious leadership. It would have been very
easy to have canceled this hearing.
But you know how important these issues are and how far
these people have traveled. But this has been the hallmark of
your entire career in the Senate, gracious leadership, a
wonderful gentleman. I just want to thank you for making sure
that these people were heard and this hearing was held. So
thank you, Mr. Chairman. I have nothing else to add.
The Chairman. Thank you very much, Senator Barrasso, for
your remarks. I really appreciate that.
I would like to hold my question, and I am going to ask
Senator Franken to proceed with his questions of the Minnesota
Tribes. Senator Franken?
Senator Franken. Thank you, Mr. Chairman.
This isn't an easy hearing for me. This has been a dispute
a long time with the Minnesota Chippewa Tribe. And earlier
today we took a picture. We have all the chairmen and
chairwomen of all the bands here, Chairman Deschampe from Grand
Portage, who is also the president of the MCT, and we have
Kevin Leecy, who is here from Bois Forte, Marge Anderson from
Mille Lacs, Karen Diver from Fond du Lac, who had to leave,
Chairman Visinor, Erma Visinor from White Earth, and Chairman
LaRose. And it was nice to have the picture, it really was.
This has been a long-time dispute. And boy, I wish this had
been unanimous. It would have made it a lot easier.
Chairman LaRose and I met today, in the morning. And we
talked about other conversations we have had about speaking
from the heart. So I am speaking from the heart now, where this
is not easy for me. Because of the lateness, Michael Black, the
Director of the Bureau of Indian Affairs, was going to testify
about this. But I can read from his written testimony. And I
think he framed this pretty much exactly as I see it. He said,
``The Department appreciates the concern of Leech Lake, with
whom it has a government to Government relationship, and would
prefer a unanimous agreement among the six bands of the
Minesota Chippewa Tribe regarding the best method to distribute
the settlement funds. Nevertheless, the recognized governing
body of the Minnesota Chippewa Tribe has voted ten to two in
favor of the distribution formula set forth in S. 1739. Out of
respect for the decision of the Minnesota Chippewa Tribe, and
in light of the need to distribute the settlement funds in an
equitable and expeditious manner, the Department supports S.
1739.''
There are little excerpts of this I can read, all six bands
equally shared the expenses and risk of prosecuting the cases
and dockets, numbers 19 and 188. The TEC's 1998 vote to settle
the cases for $20 million was not unanimous, as three members
voted against the proposed settlement. The TEC's settlement
vote, however, was respected by all the bands and the Federal
court, which stated: ``The Tribal Executive Committee has the
constitutional authority to enter into the proposed settlement
on behalf of the Minnesota Chippewa Tribe.'' It says, once
again, the Department would prefer that any distribution plan
have the unanimous support of all the Minnesota Chippewa
Tribes' constituent bands, and so do I.
Nevertheless, the 1999 settlement itself was not reached
with the unanimous consent of the Minnesota Chippewa Tribes'
constituent bands, and the Department views S. 1739 as the most
equitable and expeditious means to distribute the funds agreed
upon in that settlement and to provide a small measure of
justice to the citizens of the Minnesota Chippewa Tribe. And
perhaps that is why this is so difficult, Mr. Chairman, because
of those words, small measure of justice.
The source of all this is, in my mind, the historic
mistreatment of Indian Tribes by the Federal Government. Would
you agree with that, Chairman LaRose?
Mr. LaRose. I would agree that we are the biggest victims
of this case. We suffered the majority of the damages.
Mr. Franken. I understand. Chairman Deschampe, if Congress
enacts the bill, S. 1739, and may I ask for a little extra
time, Mr. Chairman? We have waited several hours for this, and
this is of tremendous importance.
Mr. Chairman, if Congress enacts this bill, each Tribal
member will receive $300. Can you describe the economic
condition of most of these recipients? Will that amount of
money make a difference in their lives?
Mr. Deschampe. Yes, Senator, I think it will make a huge
difference, especially now. I don't know how long it would take
to get the money here. But the reservations all have high
unemployment rates. This money would go to help families pay
heating bills, buy groceries. It is not a lot of money in most
people's mind. But it is something. And it would go a long way
towards helping make, for a little bit, make life better for
some of these people.
Senator Franken. The bill would also distribute
approximately $2.5 million to each of the six bands. What would
the bands be able to accomplish with these funds?
Mr. Deschampe. I don't know. That is up to each individual
band to make that decision. But I think we were talking
earlier, we have been through seven elections since this was
approved. So it would be really hard to make any kind of plans,
when nobody really has, through the process, had any faith that
the money was even going to be there. So that makes it real
difficult to plan.
But I do know the White Earth's plan was to work on three
community centers. And that didn't happen. I don't think that
plan is still on the books. But everybody has needs.
Senator Franken. And let me ask you one last question.
Chairman Deschampe, under the Minnesota Chippewa Tribe
constitution, the Tribal Executive Committee makes decisions
for the Tribe by majority vote, is that right?
Mr. Deschampe. Yes, it is.
Senator Franken. And does this way of resolving differences
work well for the Tribe? Has it?
Mr. Deschampe. Yes, it does. Sometimes we don't get what we
want, every, each individual band. But our constitution
requires us to settle issues based on a majority vote. My
reservation is a good example of this. We voted against the
settlement originally. But we went on to say, okay, the
majority vote wanted to settle this case, so that is the way it
is.
Senator Franken. The original in 1998?
Mr. Deschampe. Yes.
Senator Franken. It was three against, and my understanding
was that White Earth and Grand Portage voted to comprise those
three, is that correct?
Mr. Deschampe. Yes. I was chairing the meeting, so our
other rep was the one vote that made the odd vote. And yes, we
voted against the settlement. But majority rules.
Senator Franken. And the majority was respected?
Mr. Deschampe. Yes, we respected the majority's rule.
Senator Franken. And Leech Lake voted in favor?
Mr. Deschampe. Yes.
Senator Franken. Okay.
Chairman LaRose, we have discussed this today and we have
discussed this before, and this is a complex issue. You know
that we have looked at, through the legal documents and that my
staff and I have come to the same conclusion as the Bureau of
Indian Affairs. Nevertheless, I just want to tell you that I
totally respect your point of view and that again, this is not
an easy hearing for me. I just feel the best thing right now is
for members living now to get them the funds. I just want to
throw it to you to ask you to say whatever you want to say.
Mr. LaRose. I want to thank you for that, Senator Franken.
Our people have been waiting at least a century for our land
back. We lost the majority of our land in this Nelson Act, 68.9
percent of the damages happened and occurred on Leech Lake. We
are the biggest victims and we have to live with the damages.
That is what this hearing should be all about, is the damages
in itself.
And I am going to speak from the heart, how I was taught.
Our ancestors taught us some wonderful values in life and they
passed the values down to our Anishinabe Indian people. And
those values are for us to be there for one another, for us to
share and care for one another.
And I am going to give you one example here, of Leech Lake
Reservation and the Grand Portage Reservation. Grand Portage
had .9 percent damage. Grand Portage has 1,400 band members
enrolled. Grand Portage owns, or has 98 percent of their land
in trust. And now I am going to give you Leech Lake's side:
68.9 percent of the damage happened and occurred on Leech Lake
reservation. We have 9,500 band members and we only own 4
percent of our land. We are in dire need of our land, and that
is where we are hurting.
So I just wanted to bring that across to everyone in here,
that we are the real victims in this whole settlement case. We
always felt we should be fully compensated for the damages that
occurred from this Nelson Act. Thank you.
Senator Franken. Thank you, Mr. Chairman.
I want to thank all the Chairs of all the bands for being
here today. I do want to get the settlement to the members of
the Minnesota Chippewa Tribe, to the Ojibwe. And again, I thank
you, Chairman LaRose, I thank you, Chairman Deschampe.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Franken.
Let me just ask one question of Chairwoman Kennedy,
Chairwoman Pigsley, and Chairman Garcia. The Department
testified of the need for a Carcieri fix to alleviate backlogs
of land into trust applications at the Department of Interior.
My question to you is, do you support a Carcieri fix?
Chairwoman Kennedy?
Ms. Kennedy. I believe that the issues do need to be
resolved. I do support that Tribes have been waiting for years,
many for years. We have also pending applications that have not
been resolved yet, and I do believe that yes, we need to have
an answer.
The Chairman. Thank you. Chairman Pigsley?
Ms. Pigsley. Yes, we support a Carcieri fix. We have sent
supporting resolutions when a fix was, it looked like a fix
might happen, and a fix be added to another bill. We supported
that. And we truly support it and we believe it needs to
happen.
The Chairman. Chairman Garcia?
Mr. Garcia. Chairman Akaka, we support a Carcieri fix. We
believe that all Tribes are Carcieri-afflicted, if not
directly, indirectly by means of the additional uncertainty in
financial transactions. We believe it has an adverse economic
effect on all Tribes. So I believe that the Carcieri issue is
much broader than it may be, that more Tribes are affected by
it than many may think.
The Chairman. I want to thank you very much. I am going to
submit my other questions for the record, and I know it is
getting late. So I want to express my warm mahalo, thank you,
to all our witnesses at today's hearing. I truly appreciate how
important these bills are to you and look forward to continuing
to work with you as we move these bills through the Committee.
Because of the delay in starting the hearing, as I said, I
won't be asking any further questions. I will submit them for
the record, and to you for your writing on it. Are there any
further comments?
Senator Franken. Again, I would like to thank everybody for
coming.
The Chairman. Again, I thank you all so much, but I wanted
to finish this hearing, especially to take on your testimonies,
so that as we consider these bills, we know we have heard from
you and know what positions you have. I can see there are some
difficulties. And yet, we use the democratic process, and we
call the votes as they come. So that will happen through the
Committee, too, but at least we will have your thinking on
these questions.
So with that, Senator Franken and our witnesses, this
hearing is adjourned.
[Whereupon, at 6:50 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Mike S. Black, Director, Bureau of Indian
Affairs, U.S. Department of the Interior
S. 356
Chairman Akaka, Vice-Chairman Barrasso, and Members of the
Committee, my name is Mike Black, and I am the Director of the Bureau
of Indian Affairs. Thank you for the opportunity to present the
Administration's views on S. 356, to amend the Grand Ronde Reservation
Act to make technical corrections, and for other purposes. The
Department of the Interior (Department) supports S. 356.
Taking land into trust is one of the most important functions that
the Department undertakes on behalf of Indian tribes. Homelands are
essential to the health, safety, and welfare of the tribal governments.
Thus, the Department has made the restoration of tribal homelands a
priority.
S. 356 amends an Act to establish a reservation for the
Confederated Tribes of the Grand Ronde Community of Oregon, Pub. L. No.
100-425 (Sept. 9, 1988), to authorize the Secretary of the Interior to
place in trust approximately 288 acres of real property located within
the boundaries of the original 1857 reservation of the Confederated
Tribes of the Grand Ronde Community of Oregon if the real property is
conveyed or otherwise transferred to the United States by or on behalf
of the Tribe. Furthermore, the bill provides that the Secretary is to
treat all applications to take land into trust within the boundaries of
the original 1857 reservation as an on-reservation trust acquisition,
and that all real property taken into trust within those boundaries
after September 9, 1988, are to be considered part of the Tribe's
reservation.
Again, the Department supports S. 356. Thank you for the
opportunity to present testimony on S. 356. I will be happy to answer
any questions you may have.
S. 908
Chairman Akaka, Vice-Chairman Barrasso, and Members of the
Committee, my name is Mike Black, and I am the Director of the Bureau
of Indian Affairs. Thank you for the opportunity to present the
Department of the Interior's (Department) views on S. 908, a bill to
provide for the addition of certain real property to the reservation of
the Siletz Tribe.
Taking land into trust is one of the most important functions that
the Department undertakes on behalf of Indian tribes. Homelands are
essential to the health, safety, and welfare of the tribal governments.
Thus, this Administration has made the restoration of tribal homelands
a priority. This Administration is committed to the restoration of
tribal homelands, through the Department's acquisition of lands in
trust for tribes, where appropriate. While the Department is working
hard to live up to this commitment, we cannot support S. 908 as
currently drafted.
S. 908 would amend the Siletz Tribe Indian Restoration Act, 25
U.S.C. 711e, to authorize the Secretary of the Interior to place land
into trust for the Siletz Tribe. The lands lie within the original 1855
Siletz Coast Reservation and are located in the counties of Benton,
Douglas, Lane, Lincoln, Tillamook, and Yamhill, which are all located
within the State of Oregon. S. 908 would require that such land would
be considered and evaluated as an on-reservation acquisition under 25
C.F.R. 151.10 and become part of the Tribe's reservation if the
county in which the land is located submits a written approval to the
Secretary of the Interior. If a county does not approve of land being
considered an on-reservation acquisition under 25 C.F.R. 151.10, the
bill provides that any real property taken into trust ``shall be
considered and evaluated under the appropriate provisions of part 151
of title 25, Code of Federal Regulations (or successor regulations), as
determined by the Secretary.''
The Department believes its regulations, at 25 C.F.R. 151.10
and 151.11, already provide sufficient opportunities for state and
local units of government to provide views on applications for land to
be acquired in trust.
Under those regulations, State and local governments are given a 30
day period to submit written comments concerning jurisdictional
problems and potential regulatory conflicts as well as tax impacts that
may result from the land acquisition. In addition, state and local
governments, as well as the general public, may submit comments related
to environmental impacts in the review process under the National
Environmental Policy Act (NEPA). These comments may encompass a variety
of issues such as social and economic impacts, law enforcement
concerns, social services, and environmental concerns. Under NEPA, many
local governments serve as ``cooperating agencies,'' and thus
participate very closely in the Department's NEPA review process.
Finally, if the Department decides to acquire land in trust, it
must publish at least 30-days notice of this decision pursuant to 25
C.F.R. 151.12(b) prior to acquiring trust title to the land. The 30-
day notice period provides an opportunity for interested parties,
including state and local units of government, to initiate a legal
challenge to the proposed trust acquisition.
The Department does not believe it is necessary to legislatively
insert county approval of a particular tribe's fee-to-trust
applications into our regulations governing this process. While the
Department gives serious consideration to the views of local units of
government in processing applications for the acquisition of land into
trust, we must also be mindful of the unique and important role the
Department plays in managing the relationship between the United States
and tribal nations. The decision to acquire land in trust for a tribal
nation must ultimately rest with the Secretary in managing that
relationship.
In April of this year, the United States Government Accountability
Office (GAO) stated that the uncertainty in acquiring land in trust for
tribes, as a result of the Carcieri decision, is a barrier to economic
development in Indian Country. The GAO predicted that, until the
uncertainty created by the Carcieri decision is resolved, Indian tribes
would be asking Congress for tribe-specific legislation to take land in
trust, rather than submitting fee-to-trust applications to the
Department.
As evidenced by S. 908, this prediction is coming to fruition, and
Indian tribes are asking their Members of Congress for tribe-specific
legislation to take land in trust. This will lead to a patchwork of
laws governing the land into trust process, rather than the uniform
process that Congress envisioned in enacting the Indian Reorganization
Act in 1934. Such a patchwork would be difficult for the Department to
administer.
The Department opposes S. 908 as introduced, but could support the
bill if the provisions regarding county approval are removed from the
bill. Thank you for the opportunity to present the Department's views
on this legislation. I will be happy to answer any questions you may
have.
S. 1739
Good afternoon, Chairman Akaka, Vice-Chairman Barrasso, and Members
of the Committee. I am pleased to be here today to testify on S. 1739,
Minnesota Chippewa Tribe Judgment Fund Distribution Act. The bill is
intended to provide for the distribution of funds owed to the Minnesota
Chippewa Tribe by order of the United States Court of Federal Claims in
Docket Nos. 19 and 188. The Department appreciates the effort by the
Tribal Executive Committee of the Minnesota Chippewa Tribe to resolve
their differences through negotiation and to reach agreement on a
distribution plan. However, the Department acknowledges that the
distribution formula set forth in S. 1739 does not have the unanimous
support of the Minnesota Chippewa Tribe six member bands as the Leech
Lake Band of Ojibwe (Leech Lake) has expressed its opposition to the
distribution plan. The Department supports S. 1739 because it respects
the decisions of the governing body of the Minnesota Chippewa Tribe.
Background
Congress enacted the Nelson Act, dated January 14, 1889, 25 Stat.
642, (Nelson Act) to establish a process ``for the complete cession and
relinquishment in writing of all of [the Chippewa Indians in the State
of Minnesota's] title and interest in and to all the reservations of
said Indians in the State of Minnesota, except the White Earth and Red
Lake Reservations. The Nelson Act provided that proceeds from the sale
of lands of the Chippewa Indians in Minnesota were to be placed into a
fund within the Treasury for a period of 50 years, with annual payments
of interest made to individual Chippewa Indians. Section 7 of the
Nelson Act provided that, after the expiration of 50 years, ``the said
permanent fund shall be divided and paid to all of the said Chippewa
Indians and their issue then living, in cash, in equal shares[.]''
Those funds were to be distributed in equal shares, without regard to
which reservation lands they were tied.
Following the 50-year period contemplated by the Nelson Act, there
were no remaining funds to distribute in equal shares to the individual
Chippewa Indians in Minnesota.
The Minnesota Chippewa Tribe was established in 1934, pursuant to
the Indian Reorganization Act. The Secretary approved the Tribe's
constitution in 1936. Under that Constitution, the Minnesota Chippewa
Tribe consists of six member bands, on six different reservations: Bois
Fort, Fond du Lac, Grand Portage, Leech Lake, Mille Lacs and White
Earth. Each Band has two representatives on the Tribal Executive
Committee (TEC), which is the governing body for the entire Minnesota
Chippewa Tribe.
On January 22, 1948, the Minnesota Chippewa Tribe, representing all
Chippewa bands in Minnesota except the Red Lake Band, filed a claim
before the Indian Claims Commission in Docket No. 19 for an accounting
of all funds received and expended pursuant to the Nelson Act, On
August 2, 1951, the Minnesota Chippewa Tribe, representing all Chippewa
Bands in Minnesota except the Red Lake Band, filed a number of claims
before the Indian Claims Commission in Docket No. 188 for an accounting
of the Government's obligations to each of the member bands of the
Tribe under various statutes and treaties that are not covered by the
Nelson Act. The Department understands that the expenses for
prosecuting the Minnesota Chippewa Tribe's claims in Docket Nos. 19 and
188 were shared equally by the six Bands.
The primary claims asserted by the Minnesota Chippewa Tribe in
Docket Nos. 19 and 188 were that the proceeds from the sale of land and
timber on the six reservations pursuant under the Nelson Act were
misspent, and that the Tribe's land and timber were sold at less than
full-value.
On July 1, 1998, the TEC enacted Resolution 01-99, which approved
the settlement of the claims for a sum of $20 million. The vote was 6
in favor of adopting Resolution 01-99 and 3 against. The United States
Court of Federal Claims accepted the TEC's decision, and awarded $20
million to the Minnesota Chippewa Tribe in May 1999, in Docket Nos. 19
and 188. The court specifically stated ``[t]he Tribal Executive
Committee has the constitutional authority to enter into the proposed
settlement on behalf of the Minnesota Chippewa Tribe.'' The funds were
transferred to the Department on June 22, 1999 and have been held in
trust since.
The Indian Tribal Judgment Funds Act (Act) of October 19, 1973, 87
Stat. 466, 25 U.S.C. 1401 et seq., as amended, requires the Secretary
of the Interior to submit to the Congress a plan for the use or
distribution of funds to an Indian tribe. Under subsections 2(c) and
(d) of the Act, should the Secretary determine that circumstances do
not permit for the preparation and submission of a plan as provided
under the Act and the Secretary cannot obtain the consent from the
tribal governing body concerning the division of the judgment funds
within 180 days after the appropriation of the funds for the award, the
Secretary is required to submit to the Congress proposed legislation to
authorize use or distribution of such funds.
Pursuant to the Act, the Acting Deputy Commissioner of Indian
Affairs issued a Results of Research Report on the Judgment in Favor of
the Minnesota Chippewa Tribe, et al., v. United States, Dockets 19 and
188 (Report) on June 6, 2001. The Report recommended that 35 percent of
the funds should be distributed to each of the six Minnesota Chippewa
Bands (Bands) in proportion to their losses and 65 percent should be
distributed to each of the Bands in proportion to their current tribal
enrollment.
Also pursuant to the Act, in April of 2007, the Department
submitted a legislative proposal to the Speaker of the House of
Representatives and to the President of the Senate. The Minnesota
Chippewa Tribe expressed opposition to both the 2001 and the 2007
distribution plans, for varying reasons.
The Department's 2007 proposal was introduced in the 110th Congress
by Congressman Collin Peterson on May 14, 2007 as H.R. 2306. H.R. 2306
provided that the fund should be allocated pro rata between the six
Minnesota Chippewa Bands (Bands) based upon the number of tribal
members currently enrolled within each of the Bands. \1\ The House
Natural Resources Committee held a hearing on the bill, but no further
action was taken on H.R. 2306. \2\
---------------------------------------------------------------------------
\1\ By letter dated May 22, 2008, then-Assistant Secretary of
Indian Affairs, Carl Artman, rescinded the June 6, 2001 Results of
Research Report which forms the basis for H.R. 2306. By letter dated
May 30, 2008, Legislative Counsel for the Department clarified that Mr.
Artman's letter ``does not reflect the views of the Department of the
Interior or the Administration on this issue.''
\2\ U.S.C. 1405 states ``[t]he plan prepared by the Secretary
shall become effective, and he shall take immediate action to implement
the plan for the use or distribution of such judgment funds, at the end
of the sixty-day period (excluding days on which either the House of
Representatives or the Senate is not in session because of an
adjournment of more than three calendar days to a day certain)
beginning on the day such plan is submitted to the Congress, unless
during such sixty-day period a joint resolution is enacted disapproving
such plans.'' The Department could not find a joint resolution from
Congress disapproving the plan.
---------------------------------------------------------------------------
On October 1, 2009, the TEC passed Resolution 146-09, by a vote of
10 in favor and 2 against, to distribute the judgment funds. S. 1739
incorporates many of the provisions in the Tribal Resolution 146-09.
S. 1739
Section 4 of S. 1739 provides that the Secretary is to reimburse
the Minnesota Chippewa Tribe for attorneys' fees, and litigation
expenses.
Section 5 of the bill provides the Minnesota Chippewa Tribe with 90
days to submit an updated membership roll for each Band of the Tribe to
include the names of all enrolled members of that Band living on the
date of enactment of the Act.
After the attorneys' fees and litigation expenses have been
disbursed and the Secretary has received the updated membership rolls,
Section 5 directs the Secretary to deposit a ``per capita account'' of
$300 for each member enrolled within each Band. Any remaining funds are
to be deposited in a separate account and divided equally among the
Bands. After the Secretary deposits the available funds into the ``per
capita account,'' a Band may withdraw all or part of the monies in its
account. All funds in that account shall be used for the purposes of
distributing one $300 payment to each enrolled member of the Band.
Each Band may distribute an additional $300 to the parents or legal
guardians for each dependent Band member instead of distributing $300
payments to the Band members themselves, or deposit into a trust
account the $300 payments of each dependent Band member for the benefit
of such dependent Band members to be distributed under the terms of
said trust.
Section 5(d) addresses the distribution of unclaimed payments. This
section provides that one year after the distribution all unclaimed
payments for the Tribe to be returned to the Secretary who shall divide
the funds equally among the Bands.
Lastly, Section 5(e) provides that, the Secretary shall not retain
liability for the expenditure or investment of the monies after they
are withdrawn by the Bands.
Department's position on S. 1739
S. 1739 raises a unique and complex question involving the United
States' respect for the sovereignty of tribal governments. The
Minnesota Chippewa Tribe is a sovereign government, formed in 1936
under the Indian Reorganization Act, and the TEC is the governing body
of the Tribe. The TEC is comprised of twelve members, two from each of
the six constituent Bands. Each constituent Band, however, also
functions as a distinct sovereign government.
On October 1, 2009, the TEC passed Resolution 146-09, by a vote of
10 in favor and 2 against, to distribute the judgment funds in
accordance to the formula set forth in S. 1739. The Department
understands that disagreements among the Minnesota Chippewa Tribe's
constituent bands, and between the Department and the Tribe, have
prevented the distribution of the settlement funds for a number of
years. The Department also understands that the Leech Lake Band opposes
the distribution formula set out in S. 1739. Leech Lake has
consistently supported the view that the distribution should be based
upon total damages suffered by each band. The Department appreciates
the concerns of Leech Lake, with whom it has a government-to-government
relationship, and would prefer a unanimous agreement among the six
bands of the Minnesota Chippewa Tribe regarding the best method to
distribute the settlement funds.
Nevertheless, the recognized governing body of the Minnesota
Chippewa Tribe has voted 10-2 in favor of the distribution formula set
forth in S.1739. Out of respect for the decision of the Minnesota
Chippewa Tribe, and in light of the need to distribute the settlement
funds in an equitable and expeditious manner, the Department supports
S. 1739.
The Nelson Act originally contemplated a common-fund for the
benefit of individual Chippewa Indians of Minnesota, which would have
been distributed to individuals on a per capita basis. S. 1739 differs
from previous plans to distribute the settlement funds, and reflects
the original intent of Congress to distribute the common proceeds to
individuals on a per capita basis.
The Minnesota Chippewa Tribe filed Docket Nos. 19 and 188 for the
common benefit of all its constituent Bands and members. All six bands
equally shared the expense and risk of prosecuting the cases. S. 1739
also reflects the equal risk shared by the constituent bands when the
Minnesota Chippewa Tribe initiated its claim more than 60 years ago.
The TEC's 1998 vote to settle the cases for $20 million was not
unanimous, as three members voted against the proposed settlement. But
for the TEC's vote to settle the case, Dockets Nos. 19 and 188 could
still be in litigation. The TEC's settlement vote, however, was
respected by all Bands and the federal court, which stated ``[t]he
Tribal Executive Committee has the constitutional authority to enter
into the proposed settlement on behalf of the Minnesota Chippewa
Tribe.''
Once again, the Department would prefer that any distribution plan
have the unanimous support of all of the Minnesota Chippewa Tribe's
constituent bands. Should the Committee, and the sponsors of S. 1739,
wish to consider amendments to the bill in an effort to gain the
unanimous support of the Minnesota Chippewa Tribe, the Department is
willing to participate in that effort.
Nevertheless, the 1999 settlement itself was not reached with the
unanimous consent of the Minnesota Chippewa Tribe's constituent bands,
and the Department views S. 1739 as the most equitable and expeditious
means to distribute the funds agreed upon in that settlement, and to
provide a small measure of justice to the citizens of the Minnesota
Chippewa Tribe.
Mr. Chairman, this concludes my statement and I will be happy to
answer any questions you may have.
______
Prepared Statement of Marge Anderson, Chief Executive, Mille Lacs Band
of Ojibwe Indians
Mr. Chairman, Members of the Committee, I am Marge Anderson, Chief
Executive of the Mille Lacs Band of Ojibwe Indians, located in east
central Minnesota. Thank you for the opportunity to submit testimony to
your Committee.
I am here today on behalf of the Mille Lacs Band of Ojibwe
regarding the distribution of a judgment awarded to the Minnesota
Chippewa Tribe in Docket Nos. 19 and 188 in the United States Court of
Federal Claims in 1999. After over twelve years, it is time these
monies went to the people who were harmed. The Tribe has voted to
distribute the judgment, and I support the Tribe's sovereign authority
and property right to determine the distribution of the judgment
awarded to the Tribe. The Tribe's determination is reflected in S.
1739, a bill sponsored by our Senators, Al Franken and Amy Klobuchar.
the mille lacs band supports s. 1739
The Minnesota Chippewa Tribe
The Mille Lacs Band of Ojibwe is one of the six constituent bands
which comprise the Minnesota Chippewa Tribe. Each of the constituent
bands is, in its own right, a distinct sovereign government. This fact
is reflected in the bands' Self-Governance Compacts with the United
States Department of the Interior and the Department of Health and
Human Services.
However, the Minnesota Chippewa Tribe is, itself, also a sovereign
entity. It was formed in 1936 under the Indian Reorganization Act, and
its constitution was approved by the Secretary of the Interior. Under
the Tribe's revised constitution, approved by the Secretary in 1964,
the governing body of the Tribe is the Tribal Executive Committee
(TEC). Each constituent band has equal representation on the TEC, with
two seats each. The constitution authorizes the TEC to act by majority
vote.
The Judgment Fund
The Minnesota Chippewa Tribe was the only plaintiff in Docket Nos.
19 and 188 before the Indian Claims Commission. After the Indian Claims
Commission ceased to exist, the Tribe's claims in these dockets were
transferred to the United States Court of Federal Claims, where the
Tribe remained the only plaintiff in the case. The Tribe ultimately
resolved its claims by entering into a settlement agreement with the
United States. The Tribe and the United States were the only parties to
the settlement agreement.
It is important to note that the many decisions to undertake,
finance and prosecute the litigation, and to negotiate, reach and
approve the settlement agreement, were all made by the TEC on behalf of
the Tribe. It is also important to note that the Court specifically
recognized and affirmed the TEC's constitutional authority to act on
behalf of the Tribe before approving the settlement agreement.
This is confirmed by the key steps leading to entry of the final
judgment in the case. First, on July 1, 1998, the TEC enacted
Resolution 01-99, which approved the negotiated settlement of the
Tribe's claims. The vote was 6 to 3, with 10 members present.
Second, on May 21, 1999, the Tribe and the United States filed a
Joint Motion and Stipulation for Entry of Final Judgment in the Court
of Federal Claims. The stipulation called for the Court to enter
judgment in the amount of $20,000,000 ``in favor of plaintiff Minnesota
Chippewa Tribe.'' The parties submitted the TEC resolution, which
reflected the 6 to 3 vote, to the Court in support of their motion.
Third, the Court found that ``[t]he Tribal Executive Committee has
the constitutional authority to enter into the proposed settlement on
behalf of the Minnesota Chippewa Tribe,'' and that the TEC resolution
approving the settlement (along with the signature of the Tribe's
attorney on the stipulation) was ``appropriate and sufficient evidence
of acceptance by the Tribe of the settlement.''
Fourth, on May 26, 1999, the Court approved the settlement and
directed the Clerk to enter judgment ``pursuant to the [parties']
stipulation.'' Judgment was entered for ``plaintiff,'' the Minnesota
Chippewa Tribe.
Finally, in accordance with the Court's judgment, $20,000,000 was
deposited into a trust fund account, creating the judgment fund. Under
federal law, the sole beneficiary of the judgment fund is the Minnesota
Chippewa Tribe.
The Tribe's Decision
Under the Tribe's constitution, the TEC is authorized to make
decisions to administer, expend and apportion funds within the control
of the Tribe. The members of the TEC--that is, the leaders of the six
sovereign tribes that comprise the Minnesota Chippewa Tribe--have
devoted thousands of hours and countless tribal resources to come up
with a plan for the distribution of the Tribe's judgment fund. We know
the facts, the history, the legal theories and the injustices and the
harms done to our people that are the basis of our claims. We lived
through the litigation, undertook the negotiations, and finally
embraced a settlement. We are, like you, elected by our people. And
daily we are asked to make decisions, face very real, and sometimes
life or death, problems and needs that stagger human imagination and
certainly tribal resources. This is not a decision we took lightly or
made in haste.
On October 1, 2009, the TEC enacted Resolution No. 146-09, which
approved a plan to distribute the Tribe's judgment funds and requested
Congress to authorize the distribution in the manner described. The
resolution was approved by five of the six bands, and reflects the
carefully considered and legally binding decision of the Tribe. S. 1739
would authorize the distribution of the Tribe's judgment fund in
accordance with the Tribe's decision.
Need for Legislation
The Judgment Fund Distribution Act of 1973 requires the Secretary
of the Interior to submit a proposed judgment distribution plan to
Congress no later than one year after the date that funds are
appropriated to satisfy an Indian Claims Commission judgment. The
Secretary may obtain an automatic six-month extension to this deadline.
If a proposed distribution plan is not submitted within the deadline,
the funds may only be distributed through the enactment of legislation.
The Secretary did not submit a proposed judgment distribution plan
to Congress by the statutory deadline. Because the Secretary failed to
do so, Congress must now enact a statute providing for the distribution
of the judgment fund.
Reasons for Supporting S. 1739
We have three principal reasons for supporting S. 1739:
1. Sovereignty and Property Rights. Senator Franken's bill
respects the sovereignty and property rights of the Minnesota
Chippewa Tribe.
In 1998, when the Tribe was considering whether to approve
the settlement, some bands voted against it. However, under the
constitution of the Minnesota Chippewa Tribe, the Tribal
Executive Committee acts by majority vote and the settlement
was approved by majority vote of the TEC. Appropriately, the
vote was then accepted by the Department of Justice, the
Department of the Interior and the Court of Federal Claims.
Congress should give the same respect to the Tribe's decision
regarding the distribution of the judgment as the Government
gave to the Tribe's decision to settle the case.
If the Minnesota Chippewa Tribe is truly a government, and
it is, its votes cannot be overruled on matters under its
jurisdiction, including the distribution of a fund awarded to
the Tribe. The defendant in a lawsuit cannot agree to settle a
case by paying a sum of money to the plaintiff and then, when
the plaintiff determines how the money is to be distributed,
disregard that decision and pay the money to someone else. This
would be a taking. Further, it would seemingly void the
settlement and open the government to further, compounded
litigation.
In short, the Mille Lacs Band is simply requesting that the
Federal Government respect the decision of the Minnesota
Chippewa Tribe regarding the distribution of a judgment awarded
to the Tribe. If the government does not recognize the
sovereign authority and property rights here, it is a problem
not just for the Minnesota Chippewa Tribe and its six
constituent bands, but for all tribes across this country.
2. History. In the early 1980s, my predecessor, the Chief
Executive of the Mille Lacs Band, Arthur Gahbow, testified in
front of the House Interior and Insular Affairs Committee on
the distribution of another judgment obtained by the Minnesota
Chippewa Tribe in another Indian Claims Commission case. He was
told by the late Congressman Bruce Vento that he needed to go
back to Minnesota, and that the decision was up to the
Minnesota Chippewa Tribe, not the Mille Lacs Band.
There are matters we undertake as a Band, such as the Mille
Lacs Band Self-Governance Compact with the Department of the
Interior, and there are matters we undertake as a Tribe, such
as the litigation at issue here. The claims were brought by the
Tribe, prosecuted by the Tribe and settled by the Tribe, and
the judgment was awarded to the Tribe. As Congressman Vento
said in the 1980s, the distribution of the award is up to the
Tribe.
This august Committee and its leaders have traditionally
respected the sovereignty of Indian nations. In fact, it has
often single-handedly spoken truth to power in this city on the
issue of tribal sovereignty. Often this Committee has had to
explain tribal sovereignty, help employ it, and sometimes
celebrate it. We ask you to do so again, here, now.
3. Resolution. This is a moment in history when we can resolve
a longstanding conflict. If we do not do this today, this
decision will linger for a generation, or even longer. That
would not be responsible governance. We have spent countless
hours and diverted precious resources to finalizing a strong
distribution plan, embraced by five of the six bands and
supported by a huge majority of members. We have the common
goal of wanting to do good things on our reservations, and this
money from past harms can help. Today, we can and should move
forward.
Conclusion
The bands of the Minnesota Chippewa Tribe work together on
virtually all issues--law enforcement, child welfare, economic
development, and more. We have a long, distinguished and unified
history together. Ours is a story of survival. It is also a story of
occasional differences. Here we resolved our differences with close to
unanimity. We debated and discussed this matter at length. We discussed
proposal after proposal. Ultimately, we voted. Five of six bands are in
agreement. The Minnesota Chippewa Tribe has spoken as a sovereign,
self-governing tribal nation.
Our Tribe's funds, our peoples' funds, are languishing in a trust
account in the Department of the Interior--the very agency responsible
for the mismanagement that gave rise to our claims in the first place--
and we now need the assent of the Congress to access and use our own
funds. It is an irony and little legacy of paternalism that should give
way to sovereignty, self governance, self determination and respect.
This august body has come to truly respect concepts like
sovereignty, self determination and self governance; indeed, it has
given them life and meaning in modern times. Now, here, after too much
harm, too many tears, and too much time, wasted work and lost
resources, please end this. After a century and half of losses, after
six decades of litigation, and after a dozen years of our money in a
dusty account at Interior, it is time. Now, here, accept the sovereign
decision of our Tribe and give our people . . . our money.
On behalf of the Mille Lacs Band, we thank our Senators and our two
Congressmen for respecting tribal sovereignty. We thank this Committee
and you, Mr. Chairman and Mr. Vice Chairman, for your long-standing
respect for sovereignty. I respectfully request that the Committee do
the right thing.
The right thing to do is to respect the sovereignty of the Tribe
and pass S. 1739.
Mii gwetch.
______
Joint Prepared Statement of Hon. Kevin W. Leecy (Chairman) and David C.
Morrison, Sr. (Secretary-Treasurer), Bois Forte Band of Chippewa
Chairman Akaka and Members of the Committee:
We are, respectively, the Chairman and Secretary-Treasurer of the
Bois Forte Band of Chippewa--one of the six constituent Bands of the
Minnesota Chippewa Tribe (MCT). Pursuant to the Revised Constitution
and Bylaws of the MCT, we sit on the Tribal Executive Committee (TEC).
In addition, Mr. Morrison is the Treasurer of the MCT and has served in
that position since 1992.
On behalf of the Bois Forte Band, we submit this statement in
support of S. 1739. Our support is based on the fact that the
distribution of the Nelson Act proceeds reflected in S. 1739 is
consistent with the law of the Minnesota Chippewa Tribe and we have
both taken an oath to uphold that law.
For us, the distribution of the funds awarded to the Minnesota
Chippewa Tribe must be guided by the Constitution of the Tribe. The
claims that led to the award were first brought in the name of the
Minnesota Chippewa Tribe under the Constitution approved by the
Secretary of the Interior on July 24, 1936. From the time of filing
until the claims were settled in 1999, decisions about the filing and
prosecution of the claims and, ultimately, settlement of the claims,
were decisions made by the TEC.
Each of the Bands has two representatives on the Tribal Executive
Committee and under our Constitution, it is that body which has the
power ``to apportion all funds within its control.'' Although each Band
has the power to deal with funds over which it has exclusive ownership
or control, there is no doubt that the Tribal Executive Committee has
the sole power to make decisions about funds owned by the Tribe as a
whole. The funds at issue here are just that: owned by the Tribe as a
whole.
Throughout the Tribe's history the Tribal Executive Committee has
made decisions about how to apportion funds belonging to the Tribe as a
whole. Following the Nelson Act land sales, in the late 1930's vacant
and unsold lands on the six Reservations were restored to the ownership
of the Minnesota Chippewa Tribe. Proceeds from those lands (primarily
lease revenues and timber stumpage) on all of the Reservations were
treated as Tribal funds and the Tribal Executive Committee used them to
fund Tribal programs. In about 1980, the Tribal Executive Committee
decided--by a majority vote--to allow the Reservations to retain the
proceeds from leasing Tribal lands on their Reservation. Because of
that vote by the Tribal Executive Committee, Leech Lake has been the
beneficiary of more that $1 million annually for the last 30 years.
Until 1995, the Tribe continued to use timber stumpage from its lands
on all Reservations (primarily at Bois Forte) to fund its
administrative programs. In 1995, the Tribal Executive Committee--again
by majority vote--decided to apportion timber stumpage proceeds to the
Reservation on which the timber was located. The point is: the Tribal
Executive Committee decided how to allocate Tribal funds.
When the Department of Justice was engaged in settlement
discussions with the Tribe's attorneys in 1998, it wanted to be sure
that a settlement with the Tribal Executive Committee would be
constitutionally sufficient to bind the Minnesota Chippewa Tribe and
its constituent Bands. There was never any doubt on the tribal side,
but apparently the Department of Justice wanted reassurance and so it
asked the Department of the Interior to address the issue. On January
7, 1999, the Department's Associate Solicitor for Indian Affairs
responded and concluded that ``the TEC has the constitutional authority
to make a settlement agreement with the United States and to approve
the settlement of these claims which relate to the disposition of
tribal lands, interests in land or other tribal assets.'' If a decision
of the TEC was sufficient to settle the claim, its decision on
apportionment should also be binding. Under our Constitution, decisions
made by a majority vote are the law. The Minnesota Chippewa Tribe is
governed by the rule of law and that is why I support this legislation
(S. 1739) that gives effect to the Tribe's law.
As Treasurer of the MCT, Mr. Morrison has seen the financial
problems that face the Tribe today as a result of its inability to
access the funds awarded in 1999. The MCT now has an operating deficit
that requires it to access a line of credit, but that would not be
necessary if the Tribe is able to be reimbursed its expenses from the
claims award. S. 1739 would allow the Tribe to return to financial
stability.
Bois Forte is aware of the fact that the Leech Lake Band opposes
the distribution formula embodied in S. 1739 and persist in its
position that because (as they assert) Leech Lake has incurred the most
damages and should receive a share commensurate with those damages.
However, neither the actual damages suffered nor the amounts misspent
were specified in the Nelson Act settlement. For example, Bois Forte
and the other Bands located far from the Consolidated Chippewa Agency
could argue that they received a pittance of Nelson Act proceeds while
Leech Lake received the lion's share simply because of proximity to the
Agency. We have not argued about disproportionate benefit because the
hard evidence was never developed in the Court. Similarly, we cannot
agree with Leech Lake's claim of disproportionate harm for the same
reason--the facts were never decided by the Court.
The Bois Forte Band supports S. 1739 and urges the Committee to
adopt it.
______
Prepared Statement of Hon. Erma J. Vizenor, Chairwoman, White Earth
Tribal Nation
Thank you Mr. Chairman and Members of this important Committee. I
am Erma Vizenor, the Chairwoman of the White Earth Tribal Nation. I
submit this written testimony in strong support of S. 1739.
We certainly appreciate your scheduling a hearing on this very
important legislation for our people. In addition, I want to thank you
and Members of the Committee for your efforts to support improvements
to the life of all people in Indian Country. We appreciate your hard
work and the improvements in many conditions we have seen due to your
decisions. We saw firsthand the wide variety of efforts needed for this
work when the Committee honored us by holding a Field Hearing at the
White Earth Tribal Nation in the fall of 2010. We were very
appreciative of being included in this important work.
I want to take a moment now to thank the tireless efforts of
Senator Al Franken and Senator Amy Klobuchar of Minnesota for moving
this important legislation forward. In addition, I want to thank Cong.
Collin Peterson and Cong. Chip Cravaack for sponsoring a companion bill
in the U.S. House of Representatives. These four elected officials
represent every Member of Congress and Senator who represent all six
bands of the Minnesota Chippewa Tribe. I think this is very important
to note since they have listened to all sides of this issue for many
years, but decided it was important now to support the decision of the
governing body of the MCT and sponsor the legislation that would
reflect the majority vote for allocating these funds at this time.
This is a critical piece of legislation to the people of the
Minnesota Chippewa Tribe. We believe it is the beginning of a chance to
heal many wounds that have been present from the issue of timber sales
made from Indian reservations throughout Minnesota, particularly at the
White Earth Tribal Nation. Did each of us in the settlement get
everything we wanted in this compromise?--certainly not. The White
Earth Tribal Nation has taken the greatest loss of funds considering
that the White Earth Band comprises 50 percent of members of the MCT,
and the Results of Research Report sponsored by the Department of
Interior determined the best allocation was on a per capita basis by
enrollee. We have negotiated and negotiated--we believe we have put
forward as many as four or five different alternatives to divide these
funds. But we also have listened to our fellow MCT Members, made
compromises, and believe this allocation of funds is the fairest for
all bands of the MCT and acceptable to the White Earth Tribal Nation.
We are now thirteen years past the date of the settlement of this
litigation. The $20 million has not been helping the people of the
Minnesota Chippewa Tribe as was intended by the litigation, but has
instead been earning 1 percent interest as we have continued to discuss
the proper allocation of these funds. While there has been disagreement
about the allocation of these funds, our people have gone hungry, lived
in cold homes in the winter, and lost opportunities for education,
jobs, and other opportunities that might have been available if these
funds would have been a part of our budget. We do not want this to
continue. We all have made significant compromises to arrive at this
point.
Mr. Chairman, I understand one of the six bands of the Minnesota
Chippewa Tribe still does not support this bill. However, five bands do
support this legislation, and I believe that represents a very strong
reason to move forward with the bill very quickly. The present judgment
fund was deposited in 1999. There is no reason to delay the
distribution any longer.
Thank you for your consideration.
*Attachment retained in Committee files*
______
Prepared Statement of Charles Wilkinson, Distinguished Professor/Moses
Lasky Professor of Law, University of Colorado
I express my appreciation to Chairman Akaka, Vice Chairman
Barrasso, and members of the Committee for receiving this statement.
I have been actively involved in Indian matters as a practicing
lawyer and scholar since 1971. In the 1970s and early 1980s, while I
was on the faculty of the University of Oregon Law School, I
represented the Siletz Tribe in the passage of the Siletz Restoration
Act of 1977 and the Siletz Reservation Act of 1980. My many articles
and fourteen books include Federal Indian Law: Cases and Materials
(with Getches, Williams, and Fletcher) (West; 6th ed., 2011); Felix S,
Cohen's Handbook of Federal Indian Law (Managing Editor) (Michie Bobbs-
Merrill; 1982); American Indians, Time, and the Law: Native Societies
in a Modern Constitutional Democracy (Yale; 1987); Messages From
Frank's Landing: Salmon, Treaties, and the Indian Way (University of
Washington Press; 2000); and Blood Struggle: The Rise of Modern Indian
Nations (W.W. Norton (2005). My most recent book is a comprehensive
history of the Siletz Tribe, The People Are Dancing Again: A History of
the Siletz Tribe of Western Oregon (University of Washington Press;
2010), in which I explored in depth the basic issues involved in Senate
Bill 908.
It is my understanding that a question has arisen as to whether the
Grand Ronde Tribe, and perhaps other tribes, have a legal interest in
the Siletz Reservation. I will address that issue here.
The events of the mid-19th century in Western Oregon were
tumultuous and enormously complicated, but the legal results that
emerged from that era are straightforward insofar as Senate Bill 908 is
concerned. The Federal Government moved more than 30 tribes and bands
to the Siletz Reservation, established by Executive Order on November
9, 1855; President Pierce took this action under authority granted to
him by the Table Rock Treaty of September 10, 1853 and other Western
Oregon treaties. Later, by Executive Order of June 30, 1857, President
Buchanan proclaimed the Grand Ronde Reservation; he did this pursuant
to authority granted to him by the Treaty with the Willamette Valley
Tribes of January 22, 1855, and other Western Oregon treaties. The
Federal Government moved Western Oregon Indians to that reservation
also. All of this was haphazardly done. For many of the tribes and
bands, some of their people went to the Siletz Reservation and some
went to the Grand Ronde Reservation. In some cases, members of
individual families ended up on one reservation with other family
members on the other reservation.
Over the years, the Federal Government felt an increasing need to
facilitate ease of administration and create legal order out of the
complex and often chaotic settlement of the two reservations. The
Siletz Tribe and Grand Ronde Tribe each became known as a confederation
of the tribes on its reservation, with the people on each reservation
being members of the respective confederated tribes. Each confederated
tribe was acknowledged to be a separate federally recognized tribe.
Later, the BIA developed tribal rolls for each of the tribes. In the
Western Oregon Termination Act, each tribe had its own separate roll.
Then, a generation later, each tribe was restored by separate
legislation with separate tribal rolls. Today the United States
continues to recognize the Confederated Tribes of Siletz Indians and
the Confederated Tribes of Grand Ronde as two separate tribes with
separate rolls.
This process of forcibly moving tribes from their homelands,
placing several tribes on one reservation, and amalgamating individuals
in one confederated tribe, in addition to being cruel, was
ethnologically and politically arbitrary in terms of deviating from
traditional tribal identities. Yet there is no question about Congress'
broad constitutional authority to take such action. Similar historical
progressions have led to other confederated tribes across the nation,
especially in the Northwest.
If passed, Senate Bill 908 would declare that future fee-to-trust
applications by the Siletz Tribe for property within the boundaries of
the original 1855 Siletz Reservation would be treated as on-reservation
acquisitions. No other tribe has a legal interest in this kind of
proposal, just as the Siletz Tribe would have no interest in a similar
proposal made by another tribe.
In my judgment, this bill is a most worthy initiative. The land
within the magnificent 1855 Siletz Reservation was taken from the tribe
illegally or under intense coercion. Recognizing the 1855 boundaries in
this fashion provides some measure of long-due justice.
Prepared Statement of Hon. Donald L. Fry, Chairman, Confederated Tribes
of the Lower Rogue
Chairman Akaka, Co-Chairman Barrasso, Members of the Committee;
I am Donald L. Fry. I am an enrolled member and Chairman of the
Confederated Tribes of the Lower Rogue. I am honored to represent the
Chetco and Tututni peoples.
We have concerns with S. 908 and how it will impact our restoration
efforts.
The members of the Confederated Tribes of the Lower Rogue are the
descendants of the Chetco and Tututni Indians who resided in
southwestern Oregon since time immemorial. After disease and violent
clashes with invading settlers decimated SW Oregon's tribes, the
surviving Indians were forcibly removed north to the ``Coast
Reservation'' in the mid-1850s. Some Chetco and Tututni hid to avoid to
the bounty hunters who tracked us, or escaped the reservation and came
back when it was safe to do so. These resilient Indians--the ancestors
of our Tribe's current members--remained in our traditional homelands.
The Federal Government has acknowledged our tribal existence since
at least the 1850s, as evidenced by treaties signed with our ancestors
in 1851 and 1855.
In 1954, the Federal Government terminated its relationship with
the Chetco and Tututni, along with almost sixty other Western Oregon
tribes and bands. By the 1970s, tribal termination had been discredited
and was no longer federal policy, and between 1977 and 1989, Congress
restored federal recognition to six terminated Oregon tribes:
Confederated Tribes of Siletz; Confederated Tribes of the Grand Ronde
Community of Oregon; Klamath Tribes; Cow Creek Band of Umpqua Indians;
Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians; and
Coquille Tribe.
We have been pursuing our goal of restoring federal recognition of
our Tribe for over sixteen years. While we struggle to obtain the
political support needed to introduce a restoration bill, the
Confederated Tribes of the Lower Rogue are organized as a non-profit
501(c)(3) organization and work tirelessly to preserve our history and
culture.
For these reasons, we urge the Committee not to proceed with
further consideration of S. 908 until the issues affecting our concerns
for clarifying our Tribe's Federal status can be identified and
resolved.