[Senate Hearing 113-214]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 113-214

        CARCIERI: BRINGING CERTAINTY TO TRUST LAND ACQUISITIONS

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 20, 2013

                               __________

         Printed for the use of the Committee on Indian Affairs







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                      COMMITTEE ON INDIAN AFFAIRS

                 MARIA CANTWELL, Washington, Chairwoman
                 JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
JON TESTER, Montana                  LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
        Mary J. Pavel, Majority Staff Director and Chief Counsel
              Rhonda Harjo, Minority Deputy Chief Counsel
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on November 20, 2013................................     1
Statement of Senator Barrasso....................................     3
Statement of Senator Begich......................................     7
Statement of Senator Cantwell....................................     1
Statement of Senator Feinstein...................................     4
    Prepared statement...........................................     6

                               Witnesses

Dillon, Diane, Supervisor, Napa County Board of Supervisors; 
  Member, California State Association of Counties...............    30
    Prepared statement...........................................    31
Johnson-Pata, Jacqueline, Executive Director, National Congress 
  of American Indians............................................    19
    Prepared statement...........................................    21
Pierite, Hon. Marshall, Chairman, Tunica-Biloxi Tribe of 
  Louisiana; Chair, USET Carcieri Task Force.....................    25
    Prepared statement...........................................    27
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S. 
  Department of the Interior.....................................     9
    Prepared statement...........................................    11

                                Appendix

Chase, Matthew D., Executive Director, National Association of 
  Counties (NACo), prepared statement............................    58
Corn, Hon. Craig, Chairman, Menominee Indian Tribe, prepared 
  statement......................................................    55
Iyall, Hon. William, Chairman, Cowlitz Indian Tribe, prepared 
  statement......................................................    53
Response to written questions submitted by Hon. John Barrasso to:
    Diane Dillon.................................................    72
    Jacqueline Johnson-Pata......................................    73
    Hon. Marshall Pierite........................................    76
Response to written questions submitted by Hon. Maria Cantwell to 
  Diane Dillon...................................................    69
Tohono O'odham Nation, prepared statement........................    56
Tribal leaders, joint prepared statement.........................    63
Tribal organizations, joint prepared statement...................    60
Written questions submitted to Hon. Kevin Washburn...............    77

 
        CARCIERI: BRINGING CERTAINTY TO TRUST LAND ACQUISITIONS

                              ----------                              


                      WEDNESDAY, NOVEMBER 20, 2013


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m. in room 
628, Dirksen Senate Office Building, Hon. Maria Cantwell, 
Chairman of the Committee, presiding.

           OPENING STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    The Chairwoman. The Senate Indian Affairs Committee will 
come to order.
    Welcome to all. We are having an oversight hearing tody to 
receive testimony on Carcieri: Bringing Certainty to Trust Land 
Acquisitions. And I know the Vice Chairman of the Committee 
will be here shortly.
    We have a busy agenda today, so I want to go ahead and get 
started with my opening statement and then to welcome our 
colleague, Senator Feinstein from California, who is also with 
us here today and will be part of our first discussion, 
followed by the Honorable Kevin Washburn. And then a panel of 
leaders to discuss their views on this issue.
    This afternoon, the Committee is holding an oversight 
hearing on Carcieri, as I said, in an attempt to bring 
certainty to trust land acquisitions. Since the earliest days 
of our republic, the United States and tribes have had a 
government-to-government relationship that is based on treaties 
and agreements. The fundamental element of these agreements is 
that tribes secured lands that would be their homelands and 
territories. The government-to-government relationship 
continued, but not before some measures were tried to forcibly 
assimilate Native American people. But Congress passed the 
Indian Reorganization Act of 1934 to say that those policies 
were a disaster.
    So for the period of 1887 to 1933, approximately 90 million 
acres of tribal land went out of tribal ownership. By 1934, the 
then-Commissioner of Indian Affairs, John Collier, stated that 
tribal lands had been diminished by 80 percent, and the value 
of tribal lands had decreased 85 percent.
    So when Congress enacted the Indian Reorganization Act of 
1934, it represented a fundamental shift away from the United 
States' failed policies of the 19th century. America returned 
to recognizing tribes as a government, and dealing with them in 
a government-to-government relationship with shared goals of 
strengthening tribal communities and improving the lives of 
Native Americans.
    The purpose of the Indian Reorganization Act was three-
fold. One, to halt Federal polices of allotment and 
assimilation; to reverse the negative impacts of allotment 
policies; and three, to secure for all tribes a base of trust 
land to engage in economic development and self-determination. 
The bill aimed to restore tribal land bases by stopping the 
loss of more lands and allowing consolidation of existing land 
and acquiring new land, all of which was then placed into 
trust.
    Since 1934, the United States has taken approximately 10 
million acres of land into trust on behalf of tribes. As Chair, 
I will note that I think less than 1 percent of that land has 
been used for gaming.
    Since the enactment of the Indian Reorganization Act, 
tribal governments have flourished, and tribes have adopted 
constitutions and created governmental departments and have 
been better able to serve their people and protect their 
rights. It has also enabled a cultural revitalization within 
Indian people, being more free to practice their traditions. 
These were the goals of the Indian Reorganization Act, and they 
remain relevant today as many tribes do not have any land or 
sufficient land to meet the needs of their people.
    In 1994, Congress made an adjustment to the Indian 
Reorganization Act. Because the Department of Interior began to 
treat treaties differently, based on whether they were 
federally recognized. Our late colleague, Senator Inouye, led 
the effort in 1994 to amend the Indian Reorganization Act to 
ensure that all federally recognized tribes are treated 
equally, including the right to have land taken into trust.
    But we are at a crossroads again, almost 20 years later, 
and now we must reaffirm Congressional intent to take land into 
trust for all tribes under the Indian Reorganization Act. The 
Indian Gaming Act and the provisions that allowed tribes to 
game on off-reservation land have made the land into trust 
process more visible and, in some cases, more complex. Of the 
10 million acres that have been taken into trust since 1934, as 
I said, only a very small amount has been for gaming. This is 
clear from a recent report by the Interior Department. The last 
five years, most of the trust land applications have been for 
agriculture development, energy infrastructure and housing.
    So these are the very reasons that Congress sought the 
Indian Reorganization Act, to ensure the tribes would have 
these kinds of controls. So almost 20 years after Congress 
clarified that all tribes should be treated equally, we are 
here again today because a Supreme Court decision in 2009, 
Carcieri v. Salazar, has once again created two classes of 
tribes. The Supreme Court narrowly defined the tribes that 
could have taken land into trust as only those tribes under 
Federal jurisdiction in 1934. This decision reversed what had 
been 80 years of Federal policy to restore land holdings and 
strengthen tribal governments.
    The Supreme Court's decision did two things that greatly 
undermined the Federal relationship with tribes and the Federal 
policy to support tribal self-governance. First, the decision 
created two classes of tribes: tribes that can legally take 
land into trust and tribes that can't. This is contrary to the 
fundamental principle of creating equality of Native Americans 
in this particular area.
    Secondly, the Supreme Court decision resulted in a chilling 
effect for tribes in all of land into trust issues. It has 
created a great deal of uncertainty as tribes try to move 
forward within their communities on economic development 
efforts. Since the court's decision, tribal organizations and 
other stakeholders have asked this Committee to bring back 
certainty into the process. The impacts of Carcieri have been 
felt throughout Indian Country and have resulted in the loss of 
economic opportunity, stalled a lot of infrastructure projects 
and increased litigation and bureaucratic delays at the 
Department of Interior.
    In addition to the Carcieri decision, the Supreme Court's 
recent decision on Patchak also has held a challenge to the 
land into trust decisions and this is something we will be 
hearing about today as well.
    If the Carcieri decision is left to stand, the result will 
be the perpetration of two classes of tribes. This is 
inconsistent with the Indian Reorganization Act and this is why 
we must bring certainty back into the process today.
    I want to make sure one thing is clear. The government-to-
government relationship between tribal governments and the 
Federal Government must be preserved. We are seeking certainty 
and clarity in the land into trust process. But it cannot be at 
the expense of tribal sovereignty, and not in a way that 
impacts that trust relationship.
    So we will be hearing today from a variety of people to 
bring light to this issue and hopefully be able to move forward 
and resolve this issue once and for all.
    I again appreciate everyone's attention and the witnesses 
who are here today. Now I would like to turn to the Vice 
Chairman for his statement on this.

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you, Madam Chairman, for holding 
this hearing. To start off, I welcome our friend and our 
colleague, Senator Feinstein, to the hearing. I know she is 
very busy, so I am going to be brief.
    This Committee has held several hearings in the past two 
Congresses examining the impacts of the Supreme Court case, 
Carcieri v. Salazar, the impact on tribes and their lands. The 
Committee has also examined and passed legislation in the past 
two Congresses regarding this case. I know you have worked 
diligently to find a resolution to this difficult case, and I 
hope to hear from our witnesses today on how to move forward on 
this matter.
    Thank you, and thank you all for being here today. Thank 
you, Madam Chairwoman.
    The Chairwoman. Thank you, Senator Barrasso. Does my 
colleague from Alaska have an opening statement?
    Senator Begich. Madam Chair, if I can wait until after 
Senator Feinstein, given her time, but I do have a couple quick 
comments before the next panel, if that is okay.
    The Chairwoman. Okay, thank you.
    Senator Feinstein, the floor is yours. Thank you so much 
for working with our Committee on this issue, and thank you for 
being here before the Committee today.

              STATEMENT OF HON. DIANNE FEINSTEIN, 
                  U.S. SENATOR FROM CALIFORNIA

    Senator Feinstein. I thank you as well, Madam Chairman, and 
Dr. Barrasso and Senator Begich, thank you also for being here.
    Let me just begin by thanking you for your willingness to 
hear from local governments as well as tribes, to get the full 
picture of how the fee to trust process affects communities 
across the Nation. I want to particularly thank you for 
inviting supervisor Diane Dillon from Napa County, California. 
She is directly behind me. Supervisor Dillon is experiencing 
first-hand the challenges that go along with recognition and 
trust land acquisition. So I know she will speak with some 
authority about the difficulties that face local governments.
    As you may be aware, there are more than 100 federally 
recognized tribes in California. There are likely to be many 
more that will seek recognition in the near future. But what 
really sets California apart is the scale of the tribal gaming 
industry. According to the American Gaming Association, there 
are 70 tribal gaming establishments in the State today. All of 
these facilities have opened in the last 15 years.
    As of 2010, the total revenue of these gaming 
establishments was valued at $6.78 billion, more than twice 
that of any other State. By that measure, it is approaching the 
size of the gaming industry in Nevada, which is valued at just 
over $10 billion. My concern is that California tribes, some of 
them, are no longer content with casinos on Indian lands, 
despite the fact that they agreed in a State-wide ballot 
measure in 2000, called Proposition 1A, that tribal gaming 
would be confined to Indian lands.
    In recent years, we have seen the number of reservation 
shopping proposals increase. These are proposals that are in 
direct conflict with Proposition 1A. A landless tribe from 
Santa Cruz tried to open a casino near Oakland. Another 
landless tribe from Mendocino tried to do the same just miles 
down the road from Oakland in Richmond, California. A tribe 
that has a reservation in Butte County convinced the Secretary 
of the Interior to approve a casino 50 miles away in Yuba 
County near Sacramento. And a tribe with land in the Sierra 
foothills convinced the Secretary to approve a casino outside 
Fresno, more than 40 miles away.
    Now, this issue is not limited to California. It is in 
Wisconsin, there is a fight in Arizona, it is in Michigan, it 
is in Oregon and it is in Washington. My full statement, which 
goes into the record, will describe each situation.
    The purpose of these moves is clear. Tribes want to open 
casinos near major urban areas to increase their profits. And 
the effect of major off-reservation casinos I think is 
undeniable. Large casinos require local resources, including 
increased costs for police, fire, water, sewer and 
transportation.
    But here is the catch. When new trust lands are acquired, 
tribes are under no obligation to mitigate these impacts. The 
Department of Interior also has no obligation to address local 
concerns.
    I strongly believe that local governments must have the 
ability to influence the terms and conditions of the 
development of new casinos, especially because many communities 
simply do not want new casinos in their back yard. These 
casinos are not small. They are done by syndicates out of 
Atlantic City, out of Las Vegas, out of New Jersey.
    Take the case of Butte County. When the tribe from Butte 
County proposed a casino in Yuba County, Yuba County voters 
were so opposed to the casino that they put an advisory measure 
on the ballot. The voters rejected the proposed casino. But the 
Department of Interior ignored the voters and approved the 
tribe's request for the casino. I don't think this should be 
allowed to happen.
    I understand the intent of the Carcieri fix. And I do not 
accept the notion that tribes recognized before the 1934 Indian 
Reorganization Act have more rights than their counterparts 
that were recognized after 1934. But any Carcieri fix must in 
my view and the view of some others address concerns about 
tribal gaming. I do believe there is room to work with your 
Committee, Madam Chairman, to hopefully find common ground on a 
path forward.
    One way to fix the problem would be to enact the Tribal 
Gaming Eligibility Act, a bill I introduced with Senator 
Roberts earlier this year. The bill takes critical, common-
sense steps to slow reservation shopping and to protect those 
communities that are opposed to new casino developments by 
requiring tribes to demonstrate both a modern and an aboriginal 
connection to the land before opening new gaming 
establishments. As it is now, a tribe can buy a mall somewhere 
in a community, shut it down and open a gaming establishment.
    Other reforms that could be part of the solution include 
prohibiting land taken into trust for non-gaming purposes from 
being used for casinos at a later date, requiring tribes to 
mitigate jurisdictional conflicts and effects as a condition of 
trust acquisitions, increasing notice and comment periods for 
local governments, and requiring the Department of the Interior 
to consider that input, which they largely do not. 
Collectively, these reforms would help address some of my 
concerns.
    When combined with the requirement that tribes demonstrate 
modern and aboriginal ties to the land, these reforms would in 
my view represent a real improvement in the fee to trust 
process.
    Let me just say one other thing that has concerned me. With 
70 big gaming institutions, IGRA has a very minor regulatory 
and supervisory role. Las Vegas gaming has hundreds of 
regulators and supervisors. And long term, I think this 
presents a problem. Because casinos have their own problems 
with skimming, with other irregular activities and sometimes 
criminal activities. I think you have found that, it is Las 
Vegas' history, it is Atlantic City's history and so on.
    We would like to work with you. In my view, the fact that 
the Indian tribes of California went to the ballot, they told 
the people one thing, and that is that the Indian gaming would 
be on tribal land, and in fact now, there is effort after 
effort to move away from that concept is candidly unacceptable. 
Because you reach a point where with 70 operating casinos, 
enough is enough.
    So I thank you very much for listening. This has been my 
point of view. And I might say that there is growing concern in 
California. I think Supervisor Dillon will point out where 
there is a tribe that now wants to put a gaming casino right in 
the middle of Napa Valley. And there is one reason, and that is 
a problem.
    So in any event, welcome to the conflict, and I thank you 
for your courtesy.
    [The prepared statement of Senator Feinstein follows:]

    Prepared Statement of Hon. Dianne Feinstein, U.S. Senator from 
                               California
    Madam Chairwoman, Mr. Ranking Member, thank you for the opportunity 
to testify.
    I appreciate your willingness to hear from local governments as 
well as tribes to get the full picture of how the fee-to-trust process 
affects communities across the nation.
    I want to particularly thank you for inviting Supervisor Diane 
Dillon from Napa County, California. Supervisor Dillon is experiencing 
firsthand the challenges that go along with the recognition and trust 
land acquisition process. So I know she will speak with great authority 
about the difficulties that face local governments.
    As you may be aware, there are more than 100 federally recognized 
tribes in California. And there are likely to be many more that will 
seek recognition in the near future.
    But what really sets California apart is the scale of the tribal 
gaming industry.

   According to the American Gaming Association, there are 70 
        tribal gaming establishments in the state today. All of these 
        facilities have opened in the last 15 years;

   As of 2010, the total revenue of these gaming establishments 
        was valued at $6.78 billion, more than twice that of any other 
        state.

   By that measure, it is approaching the size of the gaming 
        industry in Nevada, which is valued at just over $10 billion.

    My concern is that California tribes are no longer content with 
casinos on Indian lands, despite the fact that they agreed in a state 
ballot measure in 2000 (``Proposition 1A'') that tribal gaming would be 
confined to Indian lands.
    In recent years we have seen the number of reservation shopping 
proposals increase. These are proposals that are in direct conflict 
with Proposition 1A.

   A landless tribe from Santa Cruz tried to open a casino near 
        Oakland.

   Another landless tribe from Mendocino tried to do the same, 
        just miles down the road from Oakland in Richmond, California.

   A tribe that has a reservation in Butte County convinced the 
        Secretary of the Interior to approve a casino nearly 50 miles 
        away in Yuba County, near Sacramento.

   And a tribe with land in the Sierra foothills convinced the 
        secretary to approve a casino outside Fresno, more than 40 
        miles away.

    This issue is not limited to California.

   In Wisconsin, the Menominee (Mih-NOM-min-nee) tribe received 
        approval for a casino almost 200 miles from the tribe's 
        reservation.

   The City of Glendale, Arizona, is disputing the Tohono 
        O'odham (Toe-hoe-no OH-tham) Nation's proposal to open a casino 
        and resort in the city's urban sport and entertainment 
        district, which even by the tribe's own admission is at least 
        75 miles from its reservation's border.

   The Little River Band of Ottawa Indians has proposed to 
        build a casino in Fruitport Township, Michigan, approximately 
        90 miles south of the tribe's headquarters.

   In Oregon, the Coquille (Ko-Kwell) Indian Tribe has been 
        purchasing land in the Interstate 5 corridor near Medford, 
        approximately 160 miles southeast of the tribe's land.

   And as you are aware, Madam Chairwoman, the Spokane Tribe of 
        Indians in Washington is proposing to build an off-reservation 
        casino.

    The purpose of these moves is clear-tribes want to open casinos 
near major urban areas to increase their profits.
    The effect of major off-reservation casinos is undeniable.
    Large casinos require local resources, including increased costs 
for police, fire, water, sewer and transportation.
    But here's the catch: when new trust lands are acquired, tribes are 
under no obligation to mitigate these impacts. That Department of the 
Interior also has no obligation to address local concerns.
    I strongly believe that local governments must have the ability to 
influence the terms and conditions of the development of new casinos, 
especially because many communities simply do not want new casinos in 
their backyard.
    Take the case of the tribe from Butte County, California. When the 
tribe from Butte County proposed a casino in Yuba County, Yuba County 
voters were so opposed to the casino proposal that they put an advisory 
measure on the ballot. Voters rejected the proposed casino. But the 
Department of the Interior ignored the voters and approved the tribe's 
request for a casino. This should not be allowed to happen.
    I understand the intent of the Carcieri Fix. And I do not accept 
the notion that tribes recognized before the 1934 Indian Reorganization 
Act have more rights than their counterparts that were recognized after 
1934.
    But any Carcieri fix must address concerns about tribal gaming.
    I do believe there is room to work with the Committee to find 
common ground on a path forward.
    One way to fix the problem would be to enact the Tribal Gaming 
Eligibility Act, a bill I introduced with Senator Roberts earlier this 
year. The bill takes critical, common-sense steps to slow reservation 
shopping, and to protect those communities that are opposed to new 
casino developments, by requiring tribes to demonstrate both a modern 
and an aboriginal connection to the land before opening new gaming 
establishments.
    Other reforms that could be a part of the solution include:

   Prohibiting land taken into trust for non-gaming purposes 
        from being used for casinos at a later date.

   Requiring tribes to mitigate jurisdictional conflicts and 
        effects as a condition for trust acquisitions,

   Increasing notice and comment periods for local governments, 
        and requiring the Department of the Interior to consider that 
        input.

    Collectively, these reforms would help address some of my concerns.
    When combined with the requirement that tribes demonstrate modern 
and aboriginal ties to the land, I believe these reforms would 
represent a real improvement in the fee to trust process.
    Thank you again for this opportunity, Madam Chairwoman.
    I hope to continue working with you and this committee to solve 
these issues and I hope we will pass a Carcieri fix soon.

    The Chairwoman. Thank you, Senator Feinstein. Thank you for 
being here today and for your testimony. I know this is an 
issue you have been following for some time, and we appreciate 
your due diligence here. We will look forward to, after today's 
witnesses, dialoguing with you more.
    Unless my colleagues have any questions for our colleague? 
Thank you.
    Senator Begich?

                STATEMENT OF HON. MARK BEGICH, 
                    U.S. SENATOR FROM ALASKA

    Senator Begich. Thank you, Madam Chair, and thank you for 
holding this hearing. I know Assistant Secretary Washburn is 
going to be up next, and I look forward to seeing him again.
    In my opinion, from an Alaska context on this, the 
legislative fix of the 2009 Supreme Court ruling regarding the 
ability for tribes to take land in trust, this is not a place, 
and I know there is some work here, this is not a place to 
solve or deal with Alaska issues, which are very different. 
Hearing about all the gaming, we have no gaming in Alaska, so 
it is a non-issue for us.
    But I want to make it very clear that we have many issues 
to deal with in Alaska, and this is not, for us, a place to 
deal with it within the Carcieri fix.
    But let me also say that there were some rulings this last 
summer through the D.C. District Court that the State of Alaska 
and the Secretary are in arguments now with Alaska tribe 
regarding this issue and are going through the court process. 
So again, I would make the point very clearly here that we do 
not want to use, from purely Alaska's perspective, this 
legislation to do anything to offset what is moving forward. We 
think it is a good settlement and a good opportunity.
    I also want to say that I am anxious to see what the House 
does and produces. I know there have been discussions here on 
the Senate side for what we are going to do. My understanding 
is, the status quo for Alaska will be there, which I 
appreciate. Again, I don't want to have anything in this 
legislation that changes the way Alaska has been operating. I 
don't want any Alaska provisions in there, again, because we 
are moving through the court system. We have our own track we 
are dealing with, many other issue to focus on.
    I am anxious to get this done. I think ever since I got 
here, to be frank with you, Madam Chair, I did not know much 
about this until within about one month of getting here. Then 
suddenly it was one after another who was talking to me about 
this issue. It is clear to me that there has to be a 
legislative fix. I am anxious to work through that, anxious to 
deal with this issue once and for all. I think there are good 
arguments I have heard from a lot of tribes regarding the issue 
of putting land into trust.
    We are unique in Alaska. We don't have that situation. We 
do have one tribe that is now going, as I said, through the 
court process on this issue. So I am anxious to work with the 
Committee, do whatever I can to move this legislation forward. 
But I want to make it very clear here that we are not 
interested, from my perspective as an Alaskan, representing 
Alaska tribes, which is about 230 plus tribes, interested in 
putting anything in this bill that changes the way it is today. 
I think there are so many tribes in the lower 48 that have to 
get this resolved one way or another. So I am anxious to move 
this forward in whatever way we can.
    Thank you for having this hearing. I will have some 
questions for the Assistant Secretary, and thank you for doing 
this.
    The Chairwoman. Thank you.
    I want to turn back to the Vice Chairman, Senator Barrasso.
    Senator Barrasso. Thank you very much, Madam Chairwoman
    Just a second thought. Earlier today there was a 
Congressional Gold Medal Ceremony in honor of Native American 
Code Talkers. A number of members of this Committee were in 
attendance, obviously bipartisan. Senator Johnson had a chance 
to speak and tell some of the history I just think this 
Committee meeting the same day, perhaps there are some here in 
attendance who were able to attend this marvelous ceremony in 
Emancipation Hall to thank those who made such incredible 
sacrifices, true heroes as Code Talkers, and a story that for a 
long time wasn't told intentionally because people were told to 
be quiet when they went home from the war. Many times their 
families weren't even aware of the incredible sacrifices.
    But you talk about effectiveness, and true heroes of World 
War II. So just as we meet today in this Committee hearing, I 
thought it would be good for the record to recognize this 
Congressional Gold Medal ceremony today in honor of our Native 
American Code Talkers.
    Thank you, Madam Chair.
    The Chairwoman. Thank you very much for bringing that up. 
It was a very beautiful ceremony, and great participation and 
recognition for individuals who played such an incredible role 
for our Country.
    I want to note our former colleague and Chair of this 
Committee, the late Senator Inouye, was also honored today with 
the Medal of Freedom. His work was being recognized at the 
White House. So many of us participated last night in a 
reception to remember him and his work on this Committee. We 
want to also remember his great contribution. So thank you for 
doing that.
    We will next turn back to our hearing and our panel today. 
We are going to start with Assistant Secretary Kevin Washburn. 
Thank you for being with us again today, and your hard work on 
this issue.

          STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 
       SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Washburn. Thank you, Madam Chair, Mr. Vice Chairman and 
Senator Begich. It is good to be back here. I feel like I never 
left.
    I am here today to thank you for your leadership on the 
Carcieri issue, and for doing the hard work of trying to find a 
way forward to mitigate the harmful effects of this decision. 
We have testified on numerous occasions on this subject, and we 
continue to support your efforts to achieve a Carcieri fix. 
Since we have testified so often before, I will be brief, 
rather than repeating the same testimony.
    I would note that the last week, last Wednesday, President 
Obama himself reaffirmed the Administration's commitment to a 
Carcieri fix. We had the White House Tribal Nations conference, 
and the President was there, and the 13 Cabinet secretaries, 
and Senator Begich, too. We were glad to see him there, thank 
you, Senator. And he made a point of doing so from the podium, 
the President did, asked for a Carcieri fix.
    Some people suggest that we need to use this as an 
opportunity to consider broader issues of land into trust. They 
also suggest that we give tribes sort of a careful questioning 
about what they are going to use the land for. I kind of want 
to push back against that. We do inquire what the purpose of 
the land into trust application is routinely. We always do 
that.
    That is how we know, for example, that the largest number 
of land into trust applications is for agriculture. The second 
most is for infrastructure, such as health care facilities, 
schools and police stations and those sorts of things. Third, 
for economic development, but not including gaming. And fourth, 
for housing. Of the nearly 1,500 acquisitions since the 
beginning of 2009 that we have made, fewer than 20 have been 
for gaming. So gaming is really the small exception that ends 
up having a great deal of public attention, but it does not 
represent the heartland of land into trust in any way.
    And I frankly sometimes wonder why we ask tribes at all 
what the purpose is for taking land into trust. If you ask most 
Americans why do they want a home, they look at you like you 
are crazy. It is not something you need to explain. People have 
a reason in their heart, and it is more than just shelter. It 
is something deep within the American psyche. I think you find 
people hard pressed to explain it. It is hard to put into 
words.
    We characterize, indeed, home ownership as the American 
dream. And families need homes to thrive. It is not different 
for Indian tribes. What we are doing here is trying to ensure 
that tribes have home lands, so tribes can thrive as well. But 
their homelands were taken, as Senator Cantwell very eloquently 
stated in her opening statement. A lot of acres, millions of 
acres were taken from tribes. So their American dream is a 
little more cloudy than it is for the rest of America.
    At the time, at the end of the allotment era, Congress made 
a decision that we were going to stop eviscerating the tribal 
land mass, and we were going to try to restore it. So Congress 
made that decision, and that decision has been made for many 
decades now. The Obama Administration has been very, very 
committed to it, as everybody well knows.
    The fact is though that some tribes may be denied the 
American dream by the Carcieri decision. So this is a very 
important issue.
    Some people may think that I am taking liberties to compare 
tribal governments to Americans and their dream for a home. But 
I think that analogy is apt. But if you prefer just to talk 
about the governmental analogy, we also don't quiz western 
cities or counties very hard when they say they want to expand 
into unincorporated areas. If you ask a county why it is going 
to do that, it is going to say because it wants to take care of 
its community. That is a common feeling.
    Tribal governments are no different. There are a myriad of 
reasons why they take land into trust, but the bottom line is 
that they want homelands and they want to be able to provide 
for their people. In America, this is a good enough reason to 
take land into trust.
    I think this is one of the most important issues of our 
time in Indian Country. The question is whether we are going to 
deny some tribes homelands or the ability to expand their 
homelands, while others have that ability. So again, I want to 
thank the Committee for bringing attention to this extremely 
important issue, and I stand ready for questions.
    [The prepared statement of Mr. Washburn follows:]

Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior
I. Introduction
    Chairwoman Cantwell, Vice-Chairman Barrasso, and Members of the 
Committee, my name is Kevin Washburn and I am the Assistant Secretary--
Indian Affairs at the Department of the Interior (Department). Thank 
you for the opportunity to provide the Administration's statement on 
Carcieri v. Salazar \1\ and the need to bring certainty to trust land 
acquisitions.
---------------------------------------------------------------------------
    \1\ 555 U.S. 379 (2009).
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    Restoring tribal homelands is one of this Administration's highest 
priorities. This Administration has repeatedly stressed the importance 
of and need for a Carcieri fix. For the past three years, the President 
has proposed a sensible fix to treat all tribes equally in exercising 
the fundamental responsibility of placing land into trust for tribes. 
Included as part of the budget request, the Administration's practical 
solution would amend the Indian Reorganization Act essentially as 
follows:

         Effective beginning on June 18, 1934, the term ``Indian'' as 
        used in this Act shall include all persons of Indian descent 
        who are members any federally recognized Indian tribe, and all 
        persons who are descendants of such members who were, on June 
        1, 1934, residing within the present boundaries of any Indian 
        reservation, and shall further include all other persons of 
        one-half or more Indian blood.

    Without such a fix by Congress, Carcieri presents a potential 
problem for any tribe by allowing opponents to mire routine trust 
applications in protracted and unnecessary litigation. As we have seen 
repeatedly since the decision, those challenging a trust acquisition 
routinely assert that a particular tribe was not under federal 
jurisdiction in 1934, even when such claim is clearly unsupported by 
the historical record. Tribes like the Oneida Tribe of Wisconsin and 
the St. Regis Mohawk Tribe, which entered into treaties with the United 
States in the 1790s, are forced to expend scarce resources defending 
against such claims--resources that in these difficult budgetary times 
could be better spent on housing, education, and public safety. The 
Department is also forced to expend resources both before and during 
litigation to defend against such spurious claims--resources that are 
needed for social services, protection of natural resources and 
implementation of treaty rights. A straightforward Carcieri fix would 
be a tremendous economic boost to Indian country, at no cost to the 
Federal Government.
II. Carcieri Conflicts with the Purposes of the Indian Reorganization 
        Act
    In Carcieri, the Supreme Court held that land could not be taken 
into trust for the Narragansett Tribe of Rhode Island under Section 5 
of the Indian Reorganization Act of 1934 because the Tribe was not 
under Federal jurisdiction in 1934. As a result, the land could not be 
acquired in trust for the tribe and the tribe could not complete its 
low-income housing project. Carcieri is wholly inconsistent with the 
longstanding policies of the United States under the Indian 
Reorganization Act of 1934 of assisting tribes in establishing and 
protecting a land base sufficient to allow them to provide for the 
health, welfare, and safety of tribal members, and of treating all 
tribes equally for purposes of setting aside lands for tribal 
communities.
    Our testimony is informed by history. In 1887, Congress passed the 
General Allotment Act with the intent of breaking up tribal 
reservations by dividing tribal land into 80- and 160-acre parcels for 
individual tribal members. The General Allotment Act resulted in huge 
losses of tribally owned lands, it created the Cobell fractional 
ownership problem, and it is responsible for the current 
``checkerboard'' pattern of ownership on many Indian reservations. 
Approximately two-thirds of tribal lands were lost as a result of this 
now repudiated federal policy.
    Congress enacted the Indian Reorganization Act in 1934 in part to 
remedy the devastating effects of these prior policies. Congress's 
intent in enacting the Indian Reorganization Act was three-fold: to 
halt the federal policy of allotment and assimilation; to reverse the 
negative impact of allotment policies; and to secure for all Indian 
tribes a land base on which to engage in economic development and self-
determination.
    The first section of the Indian Reorganization Act expressly 
discontinued the allotment of Indian lands, while the next section 
preserved the trust status of Indian lands. In section 3, Congress 
authorized the Secretary to restore tribal ownership of the remaining 
``surplus'' lands on Indian reservations. Most importantly, Congress 
authorized the Secretary to secure homelands for Indian tribes by 
acquiring land to be held in trust for Indian tribes under section 5. 
That section has been called ``the capstone of the land-related 
provisions of the [Indian Reorganization Act].'' Cohen's Handbook of 
Federal Indian Law  15.07[1][a] (2005). The Act also authorized the 
Secretary to designate new reservations. Thus, Congress recognized that 
one of the key factors for tribes in developing and maintaining their 
economic and political strength lay in the protection of each tribe's 
land base. The United States Supreme Court has similarly recognized 
that the Indian Reorganization Act's ``overriding purpose'' was ``to 
establish machinery whereby Indian tribes would be able to assume a 
greater degree of self-government, both politically and economically.'' 
Morton v. Mancari, 417 U.S. 535, 542 (1974).
    This Administration fully supports and continues to implement and 
advance the policy goals Congress established eight decades ago of 
protecting and restoring tribal homelands, and advancing tribal self-
determination. Acquisition of land in trust for the benefit of Indian 
tribes is essential to tribal self-determination and protects tribal 
lands for future generations. For example, trust acquisitions provide 
tribes the ability to enhance housing opportunities for their citizens. 
This is particularly necessary where many reservation economies require 
support from the tribal government to bolster local housing markets and 
offset high unemployment rates. Trust acquisitions are necessary for 
tribes to realize the tremendous energy development capacity that 
exists on their lands. Trust acquisitions allow tribes to grant certain 
rights of way and enter into leases that are necessary for tribes to 
negotiate the use and sale of their natural resources. Uncertainty 
regarding the trust status of land may create confusion regarding law 
enforcement services and interfere with the security of Indian 
communities. Additionally, trust lands provide the greatest protections 
for many communities who rely on subsistence hunting and agriculture 
that are important elements of tribal culture and ways of life.
III. Consequences of the Carcieri Decision
    The harms inflicted by Carcieri undermine the purposes envisioned 
by the IRA to remedy the harms perpetrated on tribal communities by 
policies like the General Allotment Act of 1887. Just as Congress acted 
in 1934 to remedy the devastating impacts of the General Allotment Act, 
Congress must act today to make clear that the United States' 
responsibility to secure homelands extends to all tribes.
    Following the Carcieri decision, the Department must examine 
whether a tribe seeking to have land acquired in trust under the Indian 
Reorganization Act was ``under federal jurisdiction'' in 1934. This is 
a fact-specific analysis that is conducted on a tribe-by-tribe basis. 
The Department must conduct this analysis for every tribe, including 
those tribes whose jurisdictional status is unquestioned. Because of 
the historical and fact-intensive nature of this inquiry, it can be 
time-consuming and costly for tribes and for the Department.
    In the wake of the Carcieri decision, both the Department and many 
tribes have been forced to spend an inordinate amount of time analyzing 
whether the tribes were under Federal jurisdiction in 1934 and thus 
entitled to have land taken into trust. We testified before this 
Committee, just over a year ago, on the burdens, costs and uncertainty 
on the fee to trust process that resulted from the Carcieri decision. 
We stated then, and it continues to remain true, that once this 
analysis is completed, if the Department decides to take land into 
trust and provides notice of its intent, the Carcieri decision makes it 
likely that we will face costly and complex litigation over whether 
applicant tribes were under federal jurisdiction in 1934.
    The Carcieri decision undermines the primary goal of Congress in 
enacting the Indian Reorganization Act: the acquisition of land in 
trust for tribes to secure a land base on which to live and engage in 
economic development. This decision imposes additional administrative 
burdens on the Department's long-standing approach to trust 
acquisitions and the uncertainty created by Court's decision serves to 
destabilize tribal economies and their surrounding communities. The 
Court's decision in Patchak, \2\ further undermines tribal self-
determination and self-governance by providing litigants an opportunity 
to challenge trust acquisitions even when the land is already held in 
trust.
---------------------------------------------------------------------------
    \2\ 132 S. Ct. 2199 (2012).
---------------------------------------------------------------------------
    The Administration recently promulgated a rule that implements a 
``patch'' to address Patchak by clarifying that the Department will 
immediately place land in trust once the agency makes a final decision 
to take the land into trust. While the Patchak patch will provide some 
relief for the problems Patchak created, the Carcieri decision, 
combined with the Patchak decision, casts a dark cloud of uncertainty 
on land acquisitions for tribes under the Indian Reorganization Act, 
and ultimately inhibits and discourages the productive use of tribal 
trust land itself.
IV. Conclusion
    In 1934, Congress acted to correct the Federal Government's 
allotment and assimilation policies. Congress' action then was designed 
to foster tribal self-determination and economic development and in the 
decades that followed, the Department implemented this responsibility 
for all tribes. Today, the Federal Government and Indian country 
continue to address the present day harms that emanate from the 
policies of more than a century ago, yet Carcieri injects tangible 
costs and delays that impede progress in Indian country. The power to 
acquire lands in trust is an essential tool for the United States to 
effectuate its longstanding policy of fostering tribal self-
determination. A system where some federally recognized tribes cannot 
enjoy the same rights and privileges available to other federally 
recognized tribes is unacceptable. The President's proposed Fiscal Year 
2014 Budget includes language that, if enacted, would resolve this 
issue. We look forward to working with the Committee and the Congress 
on this matter.
    This concludes my statement. I would be happy to answer questions.

    The Chairwoman. Thank you. Assistant Secretary, what do you 
think the impact has been in taking land into trust for tribes 
as it relates to this self-governance issue and this 
trajectory? Has the Department done any studies or analysis to 
analyze the economic development opportunities or impacts?
    Mr. Washburn. Well, we live with it every day. Because we 
now have to go through, jump through a lot more hoops to take 
land into trust for any tribe. We first have to do a Carcieri 
analysis to see if they are one of the tribes for whom we can 
take land into trust. In every case, every tribe, in other 
words, sort of has a Carcieri problem, because we have to go 
through this lengthy analysis to determine whether it is okay 
to take land into trust for them under the Carcieri decision.
    Secondly, we are up to our eyeballs in litigation on these 
matters. Some in Federal district courts and some in the 
Interior Board of Indian Appeals, but in excess of 15 cases 
that we are litigating. So once again, lots of man hours being 
used to address this issue.
    We certainly know that it also puts a damper on economic 
development, because there is uncertainty about tribes' land 
into trust applications. Those who want to finance development 
or that sort of thing aren't willing to do so if there is a 
cloud on the title, in essence.
    So we have seen a lot of different problems along those 
lines since we have had to live with the Carcieri decision.
    The Chairwoman. So you don't know of any particular study 
the Department has done about the economic impacts or loss of 
economic development that has happened since the Carcieri 
decision?
    Mr. Washburn. We haven't put a battery of economists on the 
question. No, it is much more anecdotal. We haven't researched 
the issue systematically.
    The Chairwoman. And how would you respond to people who say 
that, I know we are going to hear from people about, they think 
that these applications are rubber-stamped to a certain degree, 
or always approved. What would you say?
    Mr. Washburn. I will push back on that. Let me first say 
that Congress has granted the Administration the power to 
restore tribal homelands, and has suggested that we should be 
doing so. And the President has strongly committed to restoring 
tribal homelands. Having said that, it is not a rubber stamp. 
It is true that there aren't very many disapprovals, but the 
reason for that is, when an application becomes problematic, 
usually it is withdrawn. Sometimes it is withdrawn so the 
tribes can talk to local governments or others more, so they 
can work through issues.
    But we don't usually get to the point of disapproval. We 
usually get applications withdrawn before that would ever 
happen. So while it is true that applications are almost 
entirely approved, it is that the ones that are likely to be 
disapproved just get withdrawn. So it is not in fact rubber-
stamped.
    The Chairwoman. I am going to turn to my colleagues to see 
if they have any questions for you. Senator Barrasso?
    Senator Barrasso. Thank you, Madam Chair.
    I do, and I heard your testimony on home ownership and 
communities that want to expand. The way these committees work, 
you testify and then there is a panel after you, and sometimes 
it is hard to go back to you. So I try to read the testimony, 
and I have been doing that for Diane Dillon who is here, 
Supervisor, Napa County Board of Supervisors on behalf of the 
California State Association of Counties. Her written 
testimony, and she is going to testify on the next panel, 
contends that there are flaws in the trust land application 
process.
    The Chairwoman made some comments there, so local 
governments may comment on jurisdictional and certain other 
regulatory impacts arising from the trust land. But the 
required notice to local governments doesn't actually include 
the application or the proposed use of land by the tribe. And 
you made some reference to the fact that they didn't have to 
state the use.
    How do you think the notice and the opportunity for impact 
by local communities could be improved?
    Mr. Washburn. We have just improved that to some degree 
with our so-called Patchak patch regulations. So one of the 
things we do in those regulations is increase the notice that 
we give to people who have objected in the land into trust 
process, so that if they do want to challenge the decision, 
they get clearer notice. So one of the things we have done is, 
if anybody had written in during the application process, they 
will get personal notice afterwards, after a decision has been 
made, if the decision ultimately is positive, so that they can 
file a claim, they pursue other remedies if they like.
    We do reach out directly to State and local governments to 
determine what their views are. We specifically ask them about 
tax issues, jurisdiction issues and usually environmental 
consequences, because there is usually a NEPA process as well. 
So we feel like we consult fairly heavily. We do ask for very 
specific information and we certainly sometimes get more than 
just what we have asked for, and we consider that information. 
So that is something that we feel like we do actually fairly 
well. In fact, if it is a very large development, usually the 
tribe has to have some sort of agreement in place with county 
or local governments for water treatment facilities, for road 
access. There are usually all kinds of agreements between 
governments to make these things happen.
    So we feel like there is a heck of a lot of cooperation 
that occurs.
    Senator Barrasso. The final rules that you recently issued 
are to address changes in the applicability of the Quiet Title 
Act to trust acquisitions. They are also intended to broaden 
and clarify the notice of decision to acquire land into trust. 
Do you believe these preserve affected parties' ability to seek 
judicial review before the land is actually taken into trust, 
and what do you see the impacts are on judicial review?
    Mr. Washburn. Thank you, Vice Chairman. Before the Patchak 
decision, the United States had always taken the view that once 
the land was taken into trust, there could be no action. It was 
in trust, and the United States had sovereign immunity, so 
there could be no action.
    So there was a 30-day period between the decision and the 
actual action of taking land into trust that was instituted in 
1996 to give people a chance to bring an action in court if 
they wished to oppose the land into trust application after it 
had been decided.
    The Patchak decision sort of erased the need for that. 
Because now, even the land is into trust, presumably in most 
cases or many cases, at any rate, someone can go ahead and 
bring an action. So the need for the 30-day period was gone. So 
we got rid of that 30-day period. But objectors now have quite 
a bit of opportunity in the courts to pursue an action. And the 
courts have said in Patchak that there is a waiver of sovereign 
immunity for that action to proceed. So we don't see that the 
new regulation is being needed. The old regulation, the 30-day 
period, is not needed any longer.
    Senator Barrasso. Thank you. Thank you, Madam Chairwoman.
    The Chairwoman. Senator Begich?
    Senator Begich. Thank you very much.
    I have a couple of questions and then one somewhat not 
related but connected. As you know, we are a little different 
in Alaska, with ANSCA lands and so forth. But we do have, I 
think we have one application going through the process total. 
It is a unique process we have. Our tribes also don't have a 
lot of resources, don't have lands, they have issues with 
public safety, especially around public safety, which will be 
the second part of my questions.
    But can you tell me, and I think it is just one right now, 
down in Haines, Alaska, Southeast Alaska, that may be applying. 
Do you have any information on the status of that and what is 
going on with their application of land in trust?
    Mr. Washburn. The whole question of land into trust in 
Alaska is in litigation right now.
    Senator Begich. We are one of those 15 cases, I think you 
said 15 different cases. We are one of them. So is this one on 
pending that outcome?
    Mr. Washburn. It is. The Department, this is in litigation, 
so that is causing the Department, well, we have to deal with 
the litigation, but also reassessing what does this all mean 
with regard to land into trust in Alaska. That is an ongoing 
conversation that really won't be able to be resolved until the 
litigation is resolved.
    Senator Begich. And we have gone through, if I am not 
mistaken, the D.C. Circuit, District Court, and now it is going 
to the next level. Is that correct?
    Mr. Washburn. Well, that is----
    Senator Begich. Depending.
    Mr. Washburn. Right.
    Senator Begich. I should never assume. I should just assume 
that when one side loses, they will do something.
    But let me move to a couple other questions. This is 
somewhat unrelated, but again, I want to emphasize my point 
here, and I appreciate it. I know there is not an update on the 
Senate side on Carcieri in regard to legislation, but keeping 
Alaska status quo is what we are interested in. I noted your 
comments at the beginning, I don't know if you were referring 
to some of the stuff that I have heard regarding Alaska. But we 
are trying not to make this too broad. We are adding more 
things to it from Alaska's perspective. I am in agreement on 
that from Alaska's specific issues, trying to be added in there 
or deleted out.
    So I am not sure we are aligned, but we are aligned by that 
statement you made earlier. I don't know if that makes sense to 
you.
    Mr. Washburn. Well, I think yes.
    Senator Begich. We may disagree on what the outcome may be 
through the litigation, but I am trying to avoid any Alaska 
exceptions in here.
    So let me go to another issue, and this is, and you may be 
able to respond to this, it is in regard to the Indian Law and 
Order Commission report that just came out. It is a pretty 
significant report. It is a road map for making Native 
Americans safer. It is thick actually in Alaska because of how 
bad it is. We have a whole chapter, which is somewhat amazing 
when you think about it. For how much trouble and how much time 
to put one of these reports together, then to see Alaska a 
whole chapter in there.
    I have a letter going to the Chairwoman, I think it goes 
out today, asking for a special hearing in regard to this 
report. I think this is very telling of what we should be 
doing. And part of putting land into trust on a national level 
is to get more resources to tribes to solve some of the 
problems. In Alaska, we have a little bit more unique 
situation.
    But I wanted to just pick your brain while you are here. I 
caught you in the hall last time, I didn't have time on another 
issue. But I want to pick your brain on this one in regard to 
this report. As you know, I have a piece of legislation that is 
Safe Families and Villages Act, which is focused on allowing 
tribes in Alaska a little more jurisdiction. Because VAWA 
missed Alaska tribes. That is also why I want to be very 
careful about Carcieri. Because I want to make sure that we 
don't have something later we have to fix. And in VAWA, we 
missed Alaska tribes. And we have to fix that.
    Can you give me any thoughts that you might have, 
especially on how much you have had time to look at this 
report? It is pretty significant. And like I said, Alaska has a 
whole chapter. You actually, in a report like this don't 
necessarily want a chapter dedicated to you, unless it is 
saying all these great things. And this is not necessarily what 
this talks about. It talks about our lack of justice, lack of 
public safety efforts and many other things. Do you have any 
comments on what we could be doing or just some thoughts? While 
you are here, I figured I would take advantage of the moment.
    Mr. Washburn. Absolutely. We do look forward to a hearing 
on that subject. We are digesting the report, there is a lot in 
that report. It is quite extensive. And certainly it is 
extensive on Alaska.
    We have heard from a lot of Alaska tribes about the 
inadequacy of village public safety officers. They work really 
hard, but we don't give them the tools that they need.
    Senator Begich. That is right.
    Mr. Washburn. Serious problems, obviously, with crime 
control in rural villages. We are looking at that. So we are 
grateful that you are providing it more attention. And we do 
think it deserves more attention.
    So we are digesting it and we would be glad to talk more 
about it if the Chairwoman decides to hold a hearing on this 
subject.
    Senator Begich. Fantastic. Madam Chair, I am going to send 
you a letter I have drafted today, just asking us to consider 
that. I think it is an important report, a lot of good work. I 
know from just Alaska's perspective, I think the folks came up 
four different times and a lot of in-depth, good report. It is 
not polished up, it is here it is, here is what needs to be 
done, or here are the problems that we see, which I think is 
telling for us, especially in Indian Country, not only 
nationwide, but for my State of Alaska.
    I will look forward to having the conversation with you. I 
look forward to working with the Chairwoman in regard to 
potentially having some discussion on this on a much broader 
perspective.
    Mr. Washburn. Thank you, Senator.
    The Chairwoman. Yes, thank you, Senator. Thank you for your 
letter.
    If I could, just a couple more questions. I have looked at 
this analysis of land into trust just for the last couple of 
years. These are various applications but the majority of which 
are, I think there are 1,466, something like that, that were 
approved. The majority of which are housing, agriculture, 
economic development, infrastructure. I guess infrastructure 
includes things like habitat preservation or health care 
centers. In fact, I was up in Senator Begich's State this 
summer looking at one of these issues as it related to 
expanding the health center in Anchorage, and making sure that 
they could expand to better accommodate the issues of pregnancy 
and housing of families in relation to that.
    But the majority of these, as I said, the majority of these 
are, well, it looks like a big chunk, the largest chunk, 593 
out of that 1,400 is related to agriculture. Is that mining 
too?
    Mr. Washburn. No, I don't believe that would be mining. But 
yes, it is a variety of things, honestly. But a lot of tribes 
are highly fractionated and checkerboarded. So much of what 
that is is tribes trying to reduce the checkerboard within 
their reservation. So it is a variety of different type things. 
Some of them are economic development. Some of them are grazing 
or farming lands.
    The Chairwoman. I think we hear a lot of this discussion as 
it relates to gaming, and yet we want to make sure that we 
don't hamper what is, I mean, to me, I would love to see some 
economic analysis of what we have done to slow down economic 
development in Indian Country, given that in our State, the 
Port of Tacoma and the Puyallup Tribe, the Puyallup Tribe ended 
up taking land into trust that allowed them to expand in 
downtown Tacoma. They basically because of that land exchange 
and partnership between the City of Tacoma and Puyallup and the 
Port, the port expansion, it enabled Tacoma to basically 
overtake Seattle in being the largest container port in our 
State.
    So this little land into trust issue is, for me in a lot of 
ways, it is a much bigger economic tool than whether it is 
going to work effectively or whether it is going to be a 
chilling effect. So I certainly want it work effectively, 
because it has been a major tool for not just Indian Country to 
solve problems, but for Indian Country to form partnerships 
within communities, to solve larger problems. So it is a very, 
very important business tool.
    But I also wanted to just follow up on Vice Chairman 
Barrasso's question. Do you think there is any more that can be 
done to provide communities a voice in this process without 
diminishing their tribal sovereignty?
    Mr. Washburn. We have heard those complaints, and that is 
one of the reasons we increased the notice that we provided 
after, when we make one of these decisions. Because we wanted 
to make sure that there was such notice.
    The law is built to account for that voice, to bring that 
voice in. Part 151 requires us to notify State and local 
governments and then look at the information they provide us. 
We specifically question them about tax and jurisdiction and 
environmental consequences, and look at the information that 
those governments provide. So there is a fair bit of 
communication that happens with State and local governments 
already.
    So I suspect we could always do more. Communication is 
vitally important. But we have built-in processes for doing 
that, both in our regulations and in IGRA. IGRA requires that 
as well.
    The Chairwoman. Yes, Senator Begich?
    Senator Begich. Just one more. You just made me think 
about, as a former mayor, I am just trying to think of all the 
developments that ever came into my city. They never work in 
isolation. So you are always engaged, even without the 
regulatory process, I mean, as I was listening to this back and 
forth, I am thinking to myself, I can't think of one project 
that just kind of like planted themselves down in our community 
of 1,900 square miles, that is how large the city was by size, 
so you can get a little visual there, and just suddenly, they 
are in business. It doesn't work that way.
    Even if the rules weren't there, the local government is 
going to be engaged because of road access, water, sewer, 
power, even phone and cable, depending on how that relationship 
is in the local communities. I am just trying to think, I am 
anxious for the next panel, because I am trying to figure out 
what the fear is. I can only tell you that there is no way 
someone could come into a community, at least, I am thinking of 
Anchorage, when I was mayor, dropped in a whole development and 
say, we are going to do this and we are not really going to 
talk to you. It doesn't work that way. They want the 
connectivity and the cooperation because at the end of the day, 
there is joint use of resources.
    Am I missing something here?
    Mr. Washburn. I think you are correct. There is also law 
enforcement and fire, all these things that have to be dealt 
with. I think Supervisor Dillon is very articulate and very 
thoughtful and I am sure she will talk about some of those 
things. In my experience, there is a lot of cooperation that 
has to happen. You might need an exit off the freeway, you 
might need a lane widened, you have to have a water treatment 
plant. All that stuff. There is just a lot of need for that 
cooperation at all levels of government. And it tends to 
happen. You can't produce a $100 million or $500 million casino 
without working with the local authorities.
    Senator Begich. I will give one last example. There is a 
large development by one of our regional corporations, just on 
the edge of what we would consider the east part of Anchorage. 
They were near a freeway, but it was all their land and it was 
pretty wide open. And it was undeveloped land and they wanted 
to build a large mall with multiple box stores, all kinds of 
things. But everything from the street sign to the stop light 
to the overpass to the access to the employment to the buses, 
all that was part of the discussion.
    Because at the end of the day, for example, I remember 
negotiating the bus route system that went through there. Why 
did I do that? Because one, it was going to be a very lucrative 
route, because of all those employees. Second, they needed it 
for their employees. So we had both mutual interests here.
    I had wanted a stoplight in that location forever. Well, 
now that they were developing it, I made them pay for it. They 
wanted it because it made better traffic flow.
    So they couldn't just plop it down. I would not consider it 
like a casino, obviously, but the traffic flow is like a very 
busy casino, there is a lot of traffic going through there, 
theaters, everything. But it forced us to get some of our 
priorities resolved that we had been waiting for for years in a 
partnership.
    I was just thinking about that, Madam Chair. I was 
interested in your conversation back and forth, and it 
triggered my time as mayor and how these development work.
    The Chairwoman. Thank you. I thank you for helping to 
eliminate this issue. And again, Assistant Secretary, thank you 
for being here. We appreciate it and we look forward to working 
with you on this issue.
    Mr. Washburn. Thank you, Madam Chairwoman.
    The Chairwoman. We will call up our next panel: Ms. 
Jacqueline Johnson-Pata, who is Executive Director of the 
National Congress of American Indians; the Honorable Marshall 
Pierite, Chairman of the Tunica-Biloxi Tribe of Louisiana; and 
Ms. Diane Dillon, Supervisor, Napa County Board of Supervisors, 
on behalf of the California State Association of Counties.
    Welcome to all of you. Thank you for being here. We 
appreciate it. And Ms. Johnson-Pata, we will start with you.

   STATEMENT OF JACQUELINE JOHNSON-PATA, EXECUTIVE DIRECTOR, 
             NATIONAL CONGRESS OF AMERICAN INDIANS

    Ms. Johnson-Pata. [Greeting in Native tongue.] On behalf of 
the National Congress of American Indians, I would like to 
thank you for first of all, having this hearing, which is so 
important to Indian Country, regarding the Supreme Court 
decision of Carcieri v. Salazar.
    Before I get started, I would like to recognize Randy Notka 
and Hiawatha, who are here from the Narragansett Tribe. As you 
know, this issue stemmed from them wanting to take land into 
trust for housing. And here we are today, so many years later, 
still dealing with an issue that is just core to Indian 
Country.
    NCAI has been asking Congress to amend the Indian 
Reorganization Act since the Supreme Court decision in 2009. 
And our concerns about the decision are coming to pass. At 
least 18 pending cases where tribes and the Secretary of 
Interior are under challenge. And then there are many more 
tribes whose land into trust applications, whether they are for 
housing, economic development, health care centers, have just 
been stalled while the Department works through the legal and 
historical analysis which is now required.
    There is also concern that the litigation will grow. The 
IRA is a comprehensive piece of legislation that provides for 
tribal constitutions and tribal business structures and serves 
as the framework for tribal self-government. Future litigation 
could threaten tribal organizations, contracts, loans, tribal 
reservation and land, and also the provision of services. 
Litigation also may come from criminal defendants seeking to 
avoid Federal or tribal jurisdiction that would negatively 
impact our public safety.
    We feel that this will continue to get worse until Congress 
acts to clarify that all federally recognized tribes are 
eligible under the IRA. At the same time, I want to make it 
clear to the county government representatives that this s not 
an opportunity for changes to Federal law that will place 
decision-making authority into county hands. The Federal 
Government and the Secretary of Interior have a trust 
responsibility to provide for the future of Indian tribes. 
While local government issues are considered by the Secretary 
under the regulatory process, and we heard that from Kevin 
Washburn today, at 25 C.F.R. 151, tribal leaders will never 
accept a legislative proposal that will transfer authority to 
State or county governments.
    This issue starts with the history where States and 
counties took huge parcels of land from Indian tribes. And we 
need the Federal Government to protect the rights of tribes to 
recover land for their own tribal self-determination.
    We have a vision for Indian Country and Indian people. 
Indian lands should be places where the old ways are 
maintained, where our languages are spoken, where our children 
learn their traditions and pass them on to the next generation. 
And at the same time, our vision includes a modern vision of 
modern life, economic development to sustain our people, safety 
and respectful relationships with our neighbors and the 
blessings of education, health care and modern technology to 
help us thrive.
    This vision was shared by the U.S. Congress in 1934 when it 
passed one of the most important Federal laws in the history of 
our Country, the Indian Reorganization Act. With the IRA, 
Congress renewed its trust responsibility to protect and to 
restore tribal homelands, and the Indian way of life. Prior to 
1934, the Federal policy toward Indian tribes was to sell off 
tribal land base and assimilate Indian people. The Federal 
Government did everything that it could to disband our people, 
our tribes, break up our families and suppress our culture. And 
as you stated earlier in your opening remarks, over 90 million 
acres of tribal land held under treaties was taken, more than 
two-thirds of our tribal land base. And the remaining lands 
often had very little value.
    By the early 1930s, the Allotment and the Assimilation Act 
policies were widely recognized as failures. And in 1934, 
Congress rejected the Allotment and Assimilation and passed the 
IRA. It had clear and overriding purposes that Congress would 
reestablish and restore tribal governments.
    So 75 years later, here we are. The IRA is just as 
necessary as it was then. I would like to raise two important 
points. First, while some controversies exist, the vast 
majority of Indian land acquisitions taken into place in 
extremely rural areas are not controversial in any way. And 
second, State and local governments have a role in land into 
trust process. Under the current processes, the Interior 
regulation provides opportunities for all parties that are 
concerned about it to be heard, and to place the burden on the 
tribes to justify the land into trust acquisition. The 
regulations provide a forum for State and local communities to 
raise these concerns. And I believe there is time in that 
process to engage in ample, constructive dialogue with tribes 
in the most sensible and mutually agreeable options for 
restoring land.
    I would like to thank the Committee for taking a close look 
at this issue today and helping us move forward the Carcieri 
fix. Thank you for all your diligent efforts on this and so 
many issues that face you every single day, and your 
representation for Indian Country. [Phrase in Native tongue.]
    [The prepared statement of Mr. Johnson-Pata follows:]

  Prepared Statement of Jacqueline Johnson-Pata, Executive Director, 
                 National Congress of American Indians
    On behalf of the National Congress of American Indians, thank you 
for the Committee's hearing regarding the adverse implications of the 
U.S. Supreme Court's decision in Carcieri v. Salazar. As you know, the 
Carcieri decision has called into question the Department of Interior's 
longstanding interpretation of law regarding the Indian Reorganization 
Act of 1934 (IRA) and sets up unfair treatment of Indian tribes. We 
urge Congress to reinstate the principle that all federally recognized 
Indian tribes are eligible for the benefits of the IRA. Our testimony 
will also discuss general principles relating to the Secretary's 
authority to acquire land in trust for Indian tribes. Under the U.S. 
Constitution, all Indian tribes who had maintained tribal relations 
were ``under federal jurisdiction'' in 1934.
Legislative Action Needed to Address Carcieri v. Salazar
    As you know, NCAI has been asking Congress to amend the IRA since 
the Supreme Court decision in 2009. Our concerns about the decision are 
coming to pass. There are at least eighteen pending cases where tribes 
and the Secretary of Interior are under challenge. There are more 
tribes whose land to trust applications have been stalled while the 
Department of Interior works through painstaking legal and historical 
analysis. We are seeing harassment litigation against tribes who were 
on treaty reservations in 1934. Land acquisitions are delayed. Lending 
and credit are threatened. Jobs are lost or never created.
    We are also concerned that the litigation will grow. The IRA is 
comprehensive legislation that provides for tribal constitutions and 
tribal business structures, and serves as a framework for tribal self-
government. Future litigation could threaten tribal organizations, 
contracts and loans, tribal reservations and lands, and provision of 
services. Ancillary attacks may also come from criminal defendants 
seeking to avoid federal or tribal jurisdiction, and would negatively 
affect public safety on reservations. We fear that this could continue 
to get worse until Congress acts to clarify that all federally 
recognized tribes are eligible for the IRA.
    At the same time I want to make it clear to county government 
representatives that this is not an opportunity for changes to federal 
law that will place decisionmaking authority in county hands. The 
Federal Government and the Secretary of the Interior have the trust 
responsibility to provide for the future of Indian tribes. While local 
government issues are considered by the Secretary under the regulatory 
process at 25 CFR 151, tribal leaders will never accept a legislative 
proposal that transfers authority to state or county governments. This 
issue starts with a history where states and counties took huge amounts 
of land from Indian tribes, and we need the federal government to 
protect our right to recover land for tribal self-determination.
    We have a vision for our future as Indian people. Indian lands 
should be places where the old ways are maintained, our languages are 
spoken, and our children learn our traditions and pass them on to the 
next generation. At the same time, this vision includes modern life--
economic development to sustain our people; safety and respectful 
relationships with our neighbors; and the blessings of education, 
healthcare and modern technology to help us thrive.
    This vision was shared by the U.S. Congress in 1934 when it passed 
one of the most important federal laws in the history of our country--
the Indian Reorganization Act. With the IRA, Congress renewed its trust 
responsibility to protect and restore our tribal homelands and the 
Indian way of life. Four and a half years ago, the shared vision and 
the federal responsibility to Indian tribes were threatened by the 
Supreme Court's interpretation of the IRA in Carcieri v. Salazar.
    Prior to 1934, the Federal Government policy toward Indian tribes 
was to sell off the tribal land base and assimilate Indian people. The 
federal government did everything it could to disband our tribes, break 
up our families, and suppress our culture. Over 90 million acres of 
tribal land held under treaties were taken, more than two thirds of the 
tribal land base, and the remaining lands were often of little value. 
By the early 1930's the allotment and assimilation policies were widely 
recognized as failures. The policies did little more than inflict great 
suffering on Indian people and dishonor our Nation.
    In 1934, Congress rejected allotment and assimilation and passed 
the IRA. The clear and overriding purpose of Congress was to re-
establish the tribal land base and restore tribal governments that had 
withered under prior federal policies. The legislative history and the 
Act itself are filled with references to restoration of federal support 
for tribes that had been cut off, and ``to provide land for landless 
Indians.''
    A problem with our legal system is that lawyers sometimes lose 
sight of the fundamental history and purpose of a law, debate the 
meaning of a few words, and suddenly the law is turned on its head. 
Today, because of the Carcieri decision, we have opponents arguing that 
tribes are not eligible for the benefits of the IRA if they were not 
under active federal supervision by the Bureau of Indian Affairs in 
1934, or if they did not have lands in trust 1934. Both of these 
arguments are contrary to the history and purpose of the law to re-
establish federal support for tribes that had been abandoned or ignored 
by the BIA, and to restore land to tribes that had little or no land.
    Today, 75 years later--the IRA is just as necessary as it was in 
1934. The purposes of the IRA were frustrated, first by WWII and then 
by the Termination Era. The work did not begin again until the 1970's 
with the Self-Determination Policy, and since then Indian tribes are 
building economies from the ground up, and must earn every penny to buy 
back their own land. Still today, many tribes have no land base and 
many tribes have insufficient lands to support housing and self-
government and culture. We will need the IRA for many more years until 
the tribal needs for self-support and self-determination are met.
U.S. Constitution Creates Presumption of Federal Jurisdiction over 
        Indian Tribes
    Carcieri v. Salazar involved a challenge by the State of Rhode 
Island to the authority of the Secretary to take land in to trust for 
the Narragansett Tribe under Section 465 of the Indian Reorganization 
Act (IRA). The opinion involves the definition of ``Indian'' in Section 
479:

        25 U.S.C.  479

         The term ``Indian'' as used in this Act shall include all 
        persons of Indian descent who are members of any recognized 
        Indian tribe now under Federal jurisdiction, and all persons 
        who are descendants of such members who were, on June 1, 1934, 
        residing within the present boundaries of any Indian 
        reservation, and shall further include all other persons of 
        one-half or more Indian blood. For the purposes of this Act 
        Eskimos and other aboriginal peoples of Alaska shall be 
        considered Indians. The term ``tribe'' wherever used in this 
        Act shall be construed to refer to any Indian tribe, organized 
        band, pueblo, or the Indians residing on one reservation. The 
        words ``adult Indians'' wherever used in this Act shall be 
        construed to refer to Indians who have attained the age of 
        twenty-one years. (emphasis added.)

    The Supreme Court's decision reversed the 1st Circuit and held that 
the term ``now'' limits the authority of the Secretary to only take 
land in trust for Indian tribes that were under federal jurisdiction on 
June 18, 1934, the date the IRA was enacted. The Court accepted the 
State of Rhode Island's assertion that the Narragansett Tribe was not 
``under federal jurisdiction'' in 1934.
    After the Carcieri decision, the phrase ``under federal 
jurisdiction'' takes on greater legal significance in the land to trust 
process and in all applications of the IRA. The Secretary of Interior 
is faced with questions of whether an Indian tribe was ``under federal 
jurisdiction'' on a date nearly eighty years ago--a period of time when 
federal administration was highly decentralized and for which record 
keeping was often inconsistent. After significant research into the 
legislative history of the IRA, NCAI strongly urges both Congress and 
the Administration to recognize the constitutional roots of federal 
jurisdiction in Indian affairs. The Department of Interior can and 
should narrowly interpret the Carcieri decision, and NCAI strongly 
urges Congress to reaffirm the principle of equal treatment of all 
federally recognized tribes--because it is rooted in our federal 
Constitution.
    Although the nature of federal Indian law has varied significantly 
during the course of U.S. history, there is a central principle that 
has remained constant: jurisdiction over Indian affairs is delegated to 
the federal government in the U.S. Constitution. The authority is 
derived from the Indian Commerce Clause, the Treaty Clause, the 
Territory and Property Clause, and the trust relationship created in 
treaties, course of dealings and the Constitution's adoption of 
inherent powers necessary to regulate military and foreign affairs. 
See, United States v. Lara, 541 U.S. 193 (2004).
    Federal jurisdiction over Indian tribes is limited by legal 
principles that were at the forefront of Congressional consideration in 
1934, although they are not in frequent use today. During Allotment Era 
prior to 1934, Congress passed laws that created U.S. citizenship and 
allotments of private property for tribal Indians. Questions arose on 
whether those citizens could be treated legally as ``Indians'' for the 
purposes of the federal Indian laws. There was a significant string of 
Supreme Court cases that dealt with these questions, primarily in the 
context of the federal criminal laws and liquor control laws related to 
Indians, and restrictions on alienation and taxation of Indian 
property. See, Hallowell v. United States, 221 U.S. 317 (1911); Tiger 
v. Western Invest. Co., 221 U.S. 286 (1911); United States v. Rickert, 
188 U.S. 432 (1903); United States v. Celestine, 215 U.S. 278 (1909); 
United States v. Sandoval; 231 U.S. 28 (1913); Matter of Heff, 197 U.S. 
488 (1905) overruled by United States v. Nice, 241 U.S. 591 (1916); 
U.S. v. Ramsey, 271 U.S. 467 (1926).
    The holding of these decisions is that Indian tribes and Indian 
people remain under federal jurisdiction unless they have ceased tribal 
relations or federal supervision has been terminated by treaty or act 
of Congress. See, U.S. v. Nice, 241 U.S. 591, 598 (1916), ``the tribal 
relation may be dissolved and the national guardianship brought to an 
end; but it rests with Congress to determine when and how this shall be 
done, and whether the emancipation shall at first be complete or only 
partial.'' ``The Constitution invested Congress with power to regulate 
traffic in intoxicating liquors with the Indian tribes, meaning with 
the individuals composing them. That was a continuing power of which 
Congress could not devest itself. It could be exerted at any time and 
in various forms during the continuance of the tribal relation . . .'' 
Id at 600.
    The origins of this constitutional legal doctrine are summarized in 
Cohen's Handbook of Federal Indian Law (2005 ed.)  14.01[2-3], 
regarding the prior status of non-citizen Indians and efforts to 
assimilate Indians and terminate their tribal status. In this era the 
Supreme Court repeatedly affirmed Congress's authority to terminate 
federal guardianship, but found that Congress retained jurisdiction 
over Indians despite allotment of tribal lands and the grant of U.S. 
citizenship to Indians so long as tribal relations were maintained.
    The exclusion of Indians who had ceased tribal relations was a 
significant limitation on the scope of the IRA. During the Allotment 
Era, Indian tribes were under severe pressures from federal policies 
and warfare, extermination efforts, disease and dislocation. Some 
tribes had become fragmented and were no longer maintaining a social or 
political organization.
    This understanding comports with the unique legislative history of 
the phrase ``now under federal jurisdiction'' in Section 479. During a 
legislative hearing in 1934 when Commissioner of Indian Affairs John 
Collier was presenting the IRA to the Senate Committee on Indian 
Affairs, he was asked by Senator Burton Wheeler, the Chairman of the 
Committee, whether the legislation would apply to Indian people who 
were no longer in a tribal organization. Collier responded by 
suggesting the insertion of the terms ``now under Federal 
jurisdiction.'' See, Senate Committee on Indian Affairs, To Grant 
Indians the Freedom to Organize, 73rd Cong., 2nd Session, 1934, 265-
266. By inserting these terms, Congress excluded the members of tribes 
who had ceased tribal relations. As discussed in the hearing record, 
those tribal members could only gain the benefits of the IRA if they 
met the definition under the ``half-blood'' provisions. Commissioner 
Collier submitted a brief to the Committee that reiterated the 
principles of broad federal jurisdiction in Indian affairs under the 
Constitution. Id at 265. This brief specifically quoted the Supreme 
Court's decision in United States v. Sandoval; 231 U.S. 28 at 46 
(1913):

         Not only does the Constitution expressly authorize Congress to 
        regulate commerce with the Indian tribes, but long continued 
        legislative and executive usage and an unbroken current of 
        judicial decisions have attributed to the United States as a 
        superior and civilized nation the power and the duty of 
        exercising a fostering care and protection over all dependent 
        Indian communities within its borders, whether within its 
        original territory or territory subsequently acquired, and 
        whether within or without the limits of a state.

    The practices and regulations of the Bureau of Indian Affairs 
regarding the establishment of recognition for American Indian tribes, 
found in 25 C.F.R. Pt. 83, are also based on these legal principles. 25 
C.F.R. Pt. 83.7(b) and (c) are the requirements of continued tribal 
relations. 25 C.F.R. 83.7(g) is the requirement that tribal status and 
federal relations have not been revoked by Congress. Any tribe 
recognized pursuant to Part 83 has already received a factual 
determination that the tribe was under federal jurisdiction in 1934. 
The only other available methods for organizing under the IRA are to be 
recognized as Indians of one-half or more Indian blood, or to receive 
federal recognition directly from Congress.
    In short, the Carcieri decision's requirement that an Indian tribe 
must be ``under federal jurisdiction'' in 1934 should not place a 
burden of proof on the tribe to demonstrate that federal jurisdiction 
existed or was actively exercised at that time. The presumption under 
the Constitution is that federal jurisdiction over tribes always exists 
unless it has been completely and equivocally revoked by an Act of 
Congress, or tribal relations have ceased. Because the practices and 
regulations of the BIA regarding federal recognition already include 
these exclusions, and have prevented the recognition of tribes that 
have failed to maintain tribal relations, there are no federally 
recognized tribes which were not ``under federal jurisdiction'' in 
1934.
The Secretary of the Interior's Authority and Responsibility to Restore 
        Land in Trust for Indian Tribes
    The principal goal of the Indian Reorganization Act was to halt and 
reverse the abrupt decline in the economic, cultural, governmental and 
social well-being of Indian tribes caused by the disastrous federal 
policy of ``allotment'' and sale of reservation lands. Between the 
years of 1887 and 1934, the U.S. Government took more than 90 million 
acres from the tribes without compensation, nearly 2/3 of all 
reservation lands, and sold it to settlers and timber and mining 
interests. The IRA is comprehensive legislation for the benefit of 
tribes that stops the allotment of tribal lands, provides for the 
acquisition of new lands, continues the federal trust ownership of 
tribal lands, encourages economic development, and provides a framework 
for the reestablishment of tribal government institutions on their own 
lands.
    In contemporary implementation of trust land acquisition, we would 
like to raise three important points. First, while some controversies 
exist, what is often misunderstood is that the vast majority of trust 
land acquisitions take place in extremely rural areas and are not 
controversial in any way. Most acquisitions involve home sites of 30 
acres or less within reservation boundaries. Trust land acquisition is 
also necessary for consolidation of fractionated and allotted Indian 
lands, which most often are grazing, forestry or agricultural lands. 
Other typical acquisitions include land for Indian housing, health care 
clinics that serve both Indian and non-Indian communities, and land for 
Indian schools.
    Second, state and local governments have a role in the land to 
trust process. The Interior regulations provide opportunities for all 
concerned parties to be heard, and place the burden on tribes to 
justify the trust land acquisition, particularly in the off-reservation 
context. It is important to recognize that land issues require case by 
case balancing of the benefits and costs unique to a particular 
location and community. The regulations cannot be expected to 
anticipate every situation that might arise, but they do provide an 
ample forum for local communities to raise opposition to a particular 
acquisition and they reinforce the Secretary's statutory authority to 
reject any acquisition. State and local governments have an opportunity 
to engage in constructive dialogue with tribes on the most sensible and 
mutually agreeable options for restoring Indian land. In most cases, 
there is strong community support for the development of tribal 
schools, housing, health care clinics, and economic development 
ventures that will benefit surrounding communities as well as the 
tribe.
    Third, the chief problem with the land to trust process is the 
interminable delays caused by inaction at the Bureau of Indian Affairs. 
Too often have tribes spent scarce resources to purchase land and 
prepare a trust application only to have it sit for years or even 
decades without a response. In addition, during inordinate delays 
tribes risk losing funding and support for the projects that they have 
planned for the land, and environmental review documents grow stale. 
Tribal leaders have encouraged the BIA to establish internal time lines 
and checklists so that tribes will have a clear idea of when a decision 
on their application will be rendered. Tribes should know if progress 
is being made at all, and, if not, why not. While there have been some 
recent improvements in the process, the issue evokes great frustration 
over pending applications and has been raised by tribal leaders at 
every NCAI meeting.
Conclusion
    While it is important for the Interior Department to properly apply 
the principles we have discussed here, many tribes (and the federal 
government) would still be subject to litigation that could create 
uncertainty and delay tribal progress for years to come. Legislation to 
address Carcieri is the only way to provide the certainty needed to 
avoid that wasteful result. NCAI urges the Committee to work closely 
with Indian tribes and the Administration on legislation to address 
Carcieri and allow all federally recognized Indian tribes to enjoy the 
benefits of the IRA. We thank you for your diligent efforts on behalf 
of Indian country on these and many other issues.

    The Chairwoman. Thank you, and thank you for your 
testimony.
    We will next turn to the Honorable Marshall Pierite. Thank 
you so much for being here.

  STATEMENT OF HON. MARSHALL PIERITE, CHAIRMAN, TUNICA-BILOXI 
      TRIBE OF LOUISIANA; CHAIR, USET CARCIERI TASK FORCE

    Mr. Pierite. Thank you. First I want to give all honor, all 
praise and all the glory to God the Father, the Son and Holy 
Spirit.
    Good afternoon, Madam Chairman, Senator Begich. I am 
Chairman of the Tunica-Biloxi Tribe and serve as chair of the 
USET Carcieri Task Force. Thank you for this opportunity to 
testify today.
    First and foremost, I want to touch on your opening 
comments, Madam Chairwoman, when you said we need to shed light 
on this issue. We need to shed a light on all issues and 
concerns, because when we shed a light, faith is born. And 
faith is born always during the light.
    It also is developed in the darkness. And Native American 
culture is strong in faith, because we dwelled in the darkness 
for centuries. I just wanted to make that comment.
    Despite the many contributions and personal sacrifices that 
Native Americans have made to the Nation, the United States has 
a miserable record of keeping faith with tribal governments. 
The history of theft, neglect and broken laws and treaties has 
led to hard feelings for Native Americans and non-Natives 
alike.
    Today, however, I would like to highlight what happens when 
tribal governments utilize their unique legal position to 
benefit themselves and how this is also good for their non-
Indian neighbors. Unfortunately, the U.S. Supreme Court 
Carcieri decision has cast doubt on the sovereign control of 
tribal lands and slowed the Federal Government's ability to 
place land into trust for the benefit of tribal government. 
Until Congress amends the Indian Reorganization Act to correct 
the problems created by the Carcieri decision, the benefits 
brought on by strong tribal governments for themselves and 
their surrounding local community will be significantly 
diminished.
    While I do not want to dwell on the sad history of 
injustice against tribes and Native Americans, it is important 
to remember this history in order to illuminate the justice and 
healing that tribal reacquisition can bring. All tribes held 
title to large amounts of amount that has been stolen from 
them. Ours is merely one example.
    At the time of the Louisiana Purchase treaty in 1803, the 
Tunica-Biloxi tribe held title to well over 50 square miles of 
land. But in 1980, however, the tribe controlled less than 200 
acres. These lands were stolen in hundreds of small ways. But 
one example stands out. In 1841, Chief Melancon confronted a 
local landowner whose work crew was moving his fence posts into 
Tunica land. As the Chief protested and began removing the 
fence posts, the landowner shot Chief Melancon in the head in 
full sight of many witnesses. The common view at the time was 
that Indians were savages who could not farm their land 
properly and therefore had no right to keep it. As a result, 
the killer was thought to be within his rights and never stood 
trial.
    Against this history of injustice, the Tunica-Biloxi Tribe 
and hundreds of other tribes across the country are utilizing 
their own resources to purchase land that has been stolen from 
them. But we do not wish to continue the cycle of mistrust, 
envy and hard feelings. Instead, we have forged new positive 
relationships with the local non-Indian communities that have 
grown up around us.
    Utilizing our status as a sovereign nation, the Tunica-
Biloxi Tribe has created several economic development 
enterprises that generate revenue for the tribal government to 
protect and enhance the welfare and culture of our tribal 
citizens. But they also provide major benefits for our non-
Indian neighbors and revenues for State and local governments 
in the region.
    For example, our tribal enterprises purchases over $10 
million per year from local and non-Indian vendors and supplies 
wages in excess of $26 million per year to mostly non-Indian 
employees, resulting in State and Federal employment taxes of 
over $2 million per year. In addition, we have donated over $3 
million to local charities and controlled over $25 million to 
the local parish government to help cover the cost associated 
with the additional demands facing the community from the 
increased economic activity.
    When the tribe casino gaming as a means for economic 
advancement in the early 1990s, unemployment rates in Avoyelles 
Parish was as high as 17 percent, almost twice the national 
average. Local governments struggled to provide even the most 
basic services and it looked as if there was nothing on the 
horizon that might change the dismal forecast for the area.
    Today, I am very proud to say that Tunica-Biloxi employs 
nearly 1,700 people, the vast majority of them are non-Indians. 
After our gaming facility opened in 1994, the direct and 
indirect jobs created by the Tribe caused the unemployment rate 
in Avoyelles Parish to drop below the national average. Home 
prices increased. New roads were paved. Schools improved. 
Parish government service expanded and hundreds of new 
businesses sprang up in nearby Louisiana.
    Of course, many of our tribal citizens who suffered from 
the bitter yoke of poverty were helped as well, a first step as 
one of renewal for the entire region, all of our citizens and 
neighbors. Tribal governments across the Country are working 
hard to diversify our economies away from gaming and find new 
ways to provide the revenues we need to support our community. 
We hope and pray to create new manufacturing facilities, enter 
the software and service industry and build new clean energy 
projects. In order to do this, we must first repurchase the 
land that was stolen from us and place that land back into 
trust.
    In light of the often-brutal history of relationships 
between tribes and their neighbors, the level of acrimony we 
often hear from non-Indians who are opposed to tribal economic 
development projects is not entirely surprising. I am hopeful, 
however, that the lessons we are learning today will yield a 
new spirit of cooperation and unity and that non-Indians who 
are fearful of tribal economic development will come to realize 
that what is good for our tribal nations is good for them as 
well.
    The Supreme Court decision in Carcieri v. Salazar was a 
major step backward in the process of justice and healing. The 
ruling has slowed economic growth and job creation and 
continues to spawn legal impediments to the repatriation of 
Indian homelands. For the good of the tribes and generations 
yet to come, and for the good of our non-Indian neighbors and 
the Nation as a whole, Congress should act swiftly to amend the 
Indian Reorganization Act to conform to its original intended 
purposes for Native American Country and non-Native American 
alike, to walk in the same light. Amen.
    Thank you.
    [The prepared statement of Mr. Pierite follows:]

 Prepared Statement of Hon. Marshall Pierite, Chairman, Tunica-Biloxi 
          Tribe of Louisiana; Chair, USET Carcieri Task Force
    Chairwoman Cantwell, Vice Chairman Barrasso, and members of the 
Committee, my name is Marshall Pierite. I am the Chairman of the 
Tunica-Biloxi Tribe of Louisiana and serve as Chair of the USET 
Carcieri Task Force. Thank you for this opportunity to testify before 
you today.
    The United South and Eastern Tribes, Inc. (USET), is an inter-
tribal organization representing 26 federally recognized Tribes from 
Texas across to Florida and up to Maine. The USET Tribes are within the 
Eastern Region and Southern Plains Region of the Bureau of Indian 
Affairs (BIA) and the Nashville Area Office of Indian Health Services 
(IHS), covering a large expanse of land and area compared to the Tribes 
in other Regions. USET Tribes can be found from the Canadian Border in 
Maine and New York, along the east coast to Florida, west into 
Mississippi and south into Texas.
    Due to this large geographic area, the Tribal Nations in our region 
have incredible diversity. From an economic standpoint, some of our 
member tribes have highly developed economies, while others remain 
mired in poverty. All of our tribes, however, look to the United States 
to live up to its trust responsibility and to promote and protect our 
inherent Tribal sovereignty. I am here before you today, to state 
unequivocally, that the Carcieri decision is a direct infringement to 
the sovereignty rights for all Tribal Nations across the United States. 
This decision has resulted in the inability of our trustee to fulfill 
its trust obligations, has created two classes of sovereignty, and has 
presented a major barrier and challenge in our ability to pursue 
economic growth and prosperity.
    Over the years, many witnesses have come before this committee to 
assert the rights of tribes and to detail the legal obligations of the 
federal government to protect and promote effective tribal governments. 
Unfortunately, the history of the United States in meeting these 
obligations is full of broken treaties and statutes. Despite the myriad 
major contributions and personal sacrifices that tribes and Native 
Americans have made to the nation, the United States has a miserable 
record of keeping even the most basic of its promises to tribal 
governments.
    This history of neglect and disdain has led to hard feelings for 
both Native Americans and non-natives alike. In some cases a level of 
mistrust has developed that is deeply ingrained on both sides. Today 
however, instead of focusing on this troubling past, I would like to 
highlight the success of my tribe as an example of what happens when 
tribal governments utilize their unique legal position to benefit not 
only the welfare of tribal citizens, but also the welfare of their non-
Indian neighbors. The lesson of the last several decades that hundreds 
of tribes and local communities are learning is that strong tribal 
governments and the economic activity that they develop is good for 
both tribal communities and their non-Indian neighbors. Provided the 
right legal landscape, tribal governments are strong engines of 
economic and civic growth, and are good partners to non-Indian local 
communities.
    Unfortunately, the U.S. Supreme Court's 2009 decision in Carcieri 
v. Salazar has cast doubt on the sovereign control of Indian lands and 
slowed the federal government's ability to place land into trust for 
the benefit of tribal governments. This complication not only harms the 
ability of tribes to provide for the welfare of their citizens-it also 
hampers the ability of tribes to bring the benefits of their economic 
development activities to their non-Indian neighbors. Until Congress 
corrects the Indian Reorganization Act in such a way as to correct the 
problems created by the Carcieri decision, the successes and benefits 
brought on by strong tribal governments will be significantly 
diminished.
    While I do not want to dwell on the sad history of injustice 
against tribes and Native Americans, it is important to note some 
important parts of this history as it relates to land ownership, in 
order to illuminate the justice and healing that tribal land 
reacquisition can engender. Every tribe has its own history of loss, 
and every federally-recognized tribe once held title to large amounts 
of land that has been stolen from them. There are numerous stories 
across the country about the theft of Indian land and resources, and 
even of the killing of our people. Ours is merely one example.
    Prior to the acquisition of our land by the United States through 
the Louisiana Purchase Treaty in 1803, the Tunica-Biloxi Tribe had been 
granted a ``league squared'' around each one of its villages by the 
King of Spain. Accordingly, the tribe held title to well over 50 square 
miles of land at that time. Like all other Spanish land grants, this 
land ownership was recognized by the United States in the Louisiana 
Purchase Treaty, and per the Trade and Intercourse Acts, these Indian 
lands could not be legally removed from tribal ownership without 
approval of the Federal Government. However, despite no approval for 
land transfer by the U.S. Congress in the intervening years, by 1980 
the tribe controlled less than 200 acres of land.
    These lands were stolen in hundreds of small ways, but one example 
stands out. In 1841, Chief Melacon confronted a local land owner whose 
work crew was moving his fence posts onto Tunica land. As the Chief 
began removing the fence posts the land owner shot Chief Melacon in the 
head in view of several other tribal citizens and non-Indians. The 
killer never stood trial, as the common view at the time among non-
Indians in the area was that the Indians were savages who did not farm 
their land ``properly'' and therefore had no right to keep it.
    Against this history of injustice, the Tunica-Biloxi Tribe, and 
hundreds of other tribes across the country, are utilizing their own 
resources to purchase land that has been stolen from them. But, we do 
not wish to continue the cycle of mistrust, envy and hard feelings. 
Instead, we have forged new positive relationships with the local non-
Indian communities that have grown up around us. Utilizing our status 
as a sovereign nation, the Tunica-Biloxi Tribe has created several 
economic development enterprises. These businesses generate revenue for 
the tribal government to protect and enhance the welfare and culture of 
the tribal citizens. However, they also provide major benefits for our 
non-Indian neighbors and revenues for state and local governments in 
the region. For example, our tribal enterprises purchase over $10 
million per year from local non-Indian vendors, and supply wages in 
excess of $26 million dollars per year to mostly non-Indian employees, 
resulting in state and federal employment taxes of over $2 million per 
year. In addition, we have donated millions of dollars to local 
charities, and have paid the local Parish government over $25 million 
to help cover the costs associated with the additional demands placed 
on the community from the increased economic activity.
    The Tunica-Biloxi Tribe is located near the small town of 
Marksville in Central Louisiana. Despite a population of less than 
6,000, Marksville serves as the seat of the Avoyelles parish 
government. When the Tribe began looking at gaming as a means for 
economic advancement in the early 1990s unemployment rates in Avoyelles 
Parish were as high as 15-17 percent (compared to the national rate at 
the time of about 8 percent). Youth were leaving the area as fast as 
they could, and those unable to leave had no employment options. Local 
governments struggled to provide even the most basic services, and it 
looked as if there was nothing on the horizon that might change the 
dismal forecast for the area.
    While the population of Marksville has not changed much in 20 
years, the Tunica-Biloxi Tribe, through its several economic 
development enterprises, employs nearly 1,500 people--the vast majority 
of them non-Indian. After our gaming facility opened in 1995, the 
direct and indirect jobs created by the Tribe caused the unemployment 
rate in Avoyelles Parish to drop to about 6 percent. Home prices 
increased, new roads were paved, schools improved, Parish government 
services expanded, and hundreds of new businesses sprung up in 
Marksville and across the parish. Of course, our tribal citizens who 
had previously suffered greatly from economic hardship were helped as 
well, but the full story is one of renewal for the entire region and 
all of our citizens and neighbors.
    Today, the Tunica-Biloxi Tribe, and hundreds of other tribal 
governments across the country are working hard to diversify our 
economies and find new enterprises that can provide the revenues we 
need to support our communities and protect and enhance our unique 
cultures. Tribes, including ours, are hoping to create new 
manufacturing facilities, enter the software and services industries, 
and build new clean energy projects. Because of the loss of our land 
base, in order to create these new economic development projects we 
must first repurchase the land that was stolen from us.
    Further, in order to take advantage of the benefits of our 
sovereignty, we must have that land added back into the trust status 
from which it was originally removed. Often, purchasing the tribe's 
original land is not an option. In some cases this is because the tribe 
was removed and sent a long way from their traditional homelands. In 
other cases the current owners are simply not willing to sell, or the 
land is no longer suitable for the intended purpose due to other 
development, environmental degradation, or any number of other reasons. 
Regardless of the location of the repurchased land, the inability of 
tribes to swiftly have these lands placed into trust by the U.S. 
Department of the Interior has dramatically decreased the ability of 
tribal governments to create new economic opportunities and jobs for 
our own tribal citizens and our neighbors. We realize that we cannot 
fully recreate what was lost. We can strive, however, to create a 
better world and better lives for our children.
    In light of the complicated and often brutal history of 
relationships between tribes and their neighbors, the level of acrimony 
we often hear from non-Indians who are opposed to tribal economic 
development projects is not entirely surprising. What I hope all of us 
will come to recognize, however, is that tribes and their neighbors are 
in this together. We must realize that we rely on each other, and all 
parties want the larger community and the nation to prosper. I am 
hopeful that the lessons we are learning in Central Louisiana and in 
hundreds of other communities across the country will yield a new 
spirit of cooperation, and that non-Indians who are fearful of tribal 
economic development will come to realize that what is good for our 
tribal communities is good for them as well.
    The Supreme Court decision in Carcieri v. Salazar was a major step 
backward in this process of justice and healing. The ruling confused 
both tribal governments and non-Indians alike, slowed economic growth 
and job creation, and continues to spawn legal impediments to the 
repatriation of Indian homelands. For the good of tribes, for the good 
of Indian children and generations yet to come, and for the good of our 
non-Indian neighbors and the nation as a whole, Congress should act to 
amend the Indian Reorganization Act to conform to its original intended 
purpose.

    The Chairwoman. Thank you, Mr. Chairman. Thank you for 
being here. Thank you for representing the Tunica-Biloxi Tribe 
so well. We appreciate it.
    Ms. Dillon, thank you for being here. We are looking 
forward to your testimony. You can begin.

  STATEMENT OF DIANE DILLON, SUPERVISOR, NAPA COUNTY BOARD OF 
             SUPERVISORS; MEMBER, CALIFORNIA STATE 
                    ASSOCIATION OF COUNTIES

    Ms. Dillon. Thank you very much.
    Chairwoman, Senator Begich, thank you for the opportunity 
to address you today. My name is Diane Dillon and I serve on 
the Napa County Board of Supervisors. The testimony I am 
delivering today is on behalf of the California State 
Association of Counties, known as CSAC, of which I am an active 
member. Fifty-eight counties, almost 300 elected officials, 
representing the entire population of California, one-tenth of 
the U.S. population. Everyone who lives in a city lives in a 
county as well.
    I am also submitting for the record a statement from the 
National Association of Counties, NACO. CSAC works closely with 
NACO on a number of issues, including several key Indian 
affairs matters.
    In the brief time that I have before you today, I will 
describe what CSAC believes are major deficiencies in the 
Department of Interior's fee to trust process and provide the 
Committee with our recommendations for addressing these flaws. 
County governments have long been frustrated with the process 
by which lands are taken into trust. We believe the fee to 
trust system is broken and broken for al parties. A so-called 
simple Carcieri fix, as advocated by some stakeholders, would 
do nothing to repair the underlying problems in the trust land 
process and would serve only to perpetuate the conflict 
inherent in the current system.
    As county governments, the people we serve are heavily 
impacted by fee to trust decisions. In California alone, there 
are currently 113 federally recognized tribes. As Senator 
Feinstein mentioned, there are 70 casinos. Apart from the 
removal of trust lands from the local tax base and land use 
jurisdiction, which as Secretary Washburn described, are the 
two issues upon which we are consulted, trust acquisitions 
increase demands for law enforcement, fire protection, health 
and social services, transportation, water and other resources 
provided by counties without providing any mitigation for the 
burdens created.
    These challenges are of particular concern because newly 
sought-after tribal lands are targeted in well-established 
communities that are closer to large urban populations than 
existing casinos. These newly sought tribal land applications 
are aimed at creating new gamblers, as well as drawing business 
from existing casinos.
    Although trust acquisitions can result in these significant 
off-reservation impacts, the Department of Interior does not 
provide impacted local governments and communities with 
sufficient notice regarding fee to trust applications. Further, 
the Department does not accord county concerns adequate weight 
in the land into trust process.
    Many of these deficiencies in the trust land process were 
recently documented in a Pepperdine law review quantitative 
analysis of all 111 fee to trust decisions by the Pacific 
Region Bureau of Indian Affairs office between 2001 and 2011. 
The analysis found that the BIA granted 100 percent of the 
acquisition requests, and in no case did any Section 151 weigh 
against approval of an application.
    Because of the lack of clear guidance and objective 
criteria for analyzing trust land requests, the Pacific Region 
BIA decisions did not give due consideration to the issues at 
stake.
    Perhaps most egregious is that as determinations are made 
regarding whether property qualifies as Indian lands under the 
Indian Gaming Regulatory Act, which is critical to a gaming 
application, counties are not notified of such determination, 
not consulted and not invited to participate in the process. We 
believe that local government participation is essential in 
order to ensure there is a complete factual basis upon which 
objective decisions can be made.
    We want a real and lasting fix to the entire land into 
trust process. In our view, an amendment to the 1934 Indian 
Reorganization Act that extends tribal trust land acquisition 
authority to the Secretary of Interior must also include clear 
direction to provide adequate notice to local governments, 
ensure that local governments are consulted throughout the fee 
to trust process, provide incentives for tribes and local 
governments to work together. We want to do that. And provide 
for cooperating agreements that are enforceable.
    Rather than authorize the Department to continue business 
as usual, this Committee should advance legislation that 
balances the legitimate interests of both tribal and county 
governments.
    In closing, I ask you to note that CSAC has submitted 
formal written testimony for the record that includes 
additional details, more than I can give in this allotted oral 
time. One-fifth of the Nation's federally recognized tribes are 
in California. There are 352 applications for Federal 
recognition pending nationwide; one-fourth are from California.
    If Carcieri reform occurs without addressing fee to trust 
reform, it will have a disproportionate impact on California 
compared to the rest of the Nation, because of the large 
numbers of tribes that could be positioned for trust land 
acquisition. I believe personally that that is why Senator 
Feinstein is so concerned about this issue.
    The fee to trust process mus be part of a Carcieri fix. You 
will only fix part of the problem if you don't address the 
whole underlying situation. We need to look at this 
comprehensively. We urge you to work with counties to ensure 
that this historic opportunity is not missed.
    Thank you very much.
    [The prepared statement of Ms. Dillon follows:]

 Prepared Statement of Diane Dillon, Supervisor, Napa County Board of 
     Supervisors; Member, California State Association of Counties
    Thank you Chairwoman Cantwell, Ranking Member Barrasso, and Members 
of the Committee for the opportunity to testify today. My name is Diane 
Dillon, and I am a County Supervisor in Napa County, California and am 
actively involved in the California State Association of Counties 
(CSAC). This testimony is submitted on behalf of CSAC, which has been 
actively engaged in pursuing federal laws and regulations that provide 
the framework for constructive government-to-government relationships 
between counties and tribes.
    CSAC, which was founded in 1895, is the unified voice on behalf of 
all 58 of California's counties. The primary purpose of the association 
is to represent county government before the California Legislature, 
administrative agencies, and the federal government. CSAC places a 
strong emphasis on educating the public about the value and need for 
county programs and services.
    The intent of this testimony is to provide a perspective from 
counties regarding the significance of the Supreme Court's decision in 
Carcieri v. Salazar and to recommend measures for the Committee to 
consider as it seeks to address the implications of the decision. The 
views presented herein also reflect policy positions of many State 
Attorneys General who are committed to the creation of a fee-to-trust 
process in which tribal interests can be met and legitimate state and 
local interests are properly considered.
    In our view, the recent Carcieri decision provides Congress with a 
rare opportunity to address long-standing defects in the land-into-
trust system. The current process--as authorized under the Indian 
Reorganization Act of 1934 (IRA) and governed by the Department of the 
Interior's Part 151 regulations--lacks adequate standards and has led 
to significant, and in many cases, unnecessary conflict and distrust of 
the federal decisionmaking system for trust lands. It is from this 
local government experience regarding the fee-to-trust process that we 
address the implications of the Carcieri decision.
The Deficiencies of the Current Trust-Land Process
    The fundamental problem with the trust acquisition process is that 
Congress has not set standards under which any delegated trust land 
authority would be applied by the Bureau of Indian Affairs (BIA). The 
relevant section of federal law, Section 5 of the IRA, reads as 
follows: ``The Secretary of the Interior is hereby authorized in his 
discretion, to acquire [by various means] any interest in lands, water 
rights, or surface rights to lands, within or without reservations . . 
. for the purpose of providing land to Indians.'' 25 U.S.C.  465.
    The aforementioned general and undefined congressional guidance has 
resulted in a trust land process that fails to meaningfully include 
legitimate interests, provide adequate transparency to the public, or 
demonstrate fundamental balance in trust land decisions. The 
unsatisfactory process has created significant controversy, serious 
conflicts between tribes and states, counties and local governments--
including litigation costly to all parties--and broad distrust of the 
fairness of the system.
    It should be noted that the deficiencies in the trust land process 
were reaffirmed recently in a quantitative analysis of all 111 fee-to-
trust decisions by the Pacific Region BIA Office between 2001 and 2011. 
\1\ The analysis found that BIA granted 100 percent of the proposed 
acquisition requests and in no case did any Section 151 factor weigh 
against approval of an application. \2\ The analysis further found that 
because of the lack of clear guidance and objective criteria, Pacific 
Region BIA decisions avoid substantive analysis in favor of filler 
considerations and boilerplate language. \3\ The result is a broken 
process in which community concerns are ignored or downplayed, 
applications are rubber-stamped at a 100 percent acceptance rate, and 
tribes and local governments are forced into unnecessary and 
unproductive conflict. \4\ The problem appears likely to worsen in the 
future, given recent statements by the Department trumpeting its desire 
to ``keep that freight train moving'' and ``keep restoring lands for 
tribes.'' \5\
---------------------------------------------------------------------------
    \1\ (Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust 
Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law 
Review 250 (2013).
    \2\ Id., pp. 278.
    \3\ Id., pp. 286, 293, 302.
    \4\ Id., pp. 292, 295, 297.
    \5\ See ``Washburn Announces Plan of Attack for Patchak Plan,'' 
http://indiancountrytodaymedianetwork.com/2013/05/24/washburn-
announces-plan-attack-patchak-patch-149514.
---------------------------------------------------------------------------
    While there are a number of major flaws in BIA's fee-to-trust 
process, one of CSAC's central concerns is the severely limited role 
that state and local governments play. The implications of losing 
jurisdiction over local lands are very significant, including the loss 
of tax base, loss of planning and zoning authority, and the loss of 
environmental and other regulatory power. Yet, state, county and local 
governments are afforded limited, and often late, notice of a pending 
trust land application, and, under the current regulations, are asked 
to provide comments on two narrow issues only: (1) potential 
jurisdictional conflicts; and, (2) loss of tax revenues.
    Moreover, the notice that local governments receive typically does 
not include the actual fee-to-trust application and often does not 
indicate how the applicant tribe intends to use the land. Further, in 
some cases, tribes have proposed a trust acquisition without 
identifying a use for the land; in other cases, tribes have identified 
a non-intensive, mundane use, only to change the use to heavy economic 
development, such as gaming or energy projects, soon after the land is 
acquired in trust.
    Local governments also are often forced to resort to Freedom of 
Information Act (FOIA) requests to ascertain if a petition for an 
Indian lands determination--a key step in the process for a parcel of 
land to qualify for gaming--has been filed in their jurisdiction. 
Because many tribal land acquisitions ultimately will be used for 
economic development purposes--including gaming activities--there are 
often significant unmitigated impacts to the surrounding community, 
including environmental and economic impacts. Unfortunately, current 
law does not provide any incentive for tribes and affected local 
governments to enter into agreements for the mitigation of off-
reservation impacts.
    While the Department of the Interior understands the increased 
impacts and conflicts inherent in recent trust land decisions, it has 
not crafted regulations that strike a reasonable balance between tribes 
seeking new trust lands and the states and local governments 
experiencing unacceptable impacts. Indeed, the current notification 
process embodied in the Part 151 regulations is, in practice, 
insufficient and falls far short of providing local governments with 
the level of detail needed to adequately respond to proposed trust land 
acquisitions. Accordingly, a legislative effort is needed to meet the 
fundamental interests of both tribes and local governments.
Carcieri v. Salazar--An Historic Opportunity
    On February 24, 2009, the U.S. Supreme Court issued its landmark 
decision on Indian trust lands in Carcieri v. Salazar. The Court held 
that the Secretary of the Interior lacks authority to take land into 
trust on behalf of Indian tribes that were not under the jurisdiction 
of the Federal Government upon enactment of the IRA in 1934.
    Because the Carcieri decision has definitively confirmed the 
Secretary's lack of authority to take land into trust for post-1934 
tribes, Congress has the opportunity not just to address the issue of 
the Secretary's authority under the current failed fee-to-trust system, 
but to reassert its primary authority for these decisions by setting 
specific standards for taking land into trust that address the main 
shortcomings of the trust land process.
    In the wake of this significant court decision, varied proposals 
for reversing the Carcieri decision have been generated, some proposing 
administrative action and others favoring a congressional approach. 
Today's hearing, like several hearings before it, is a recognition of 
the significance of the Carcieri decision and the need to consider 
legislative action.
    We believe that the responsibility to address the implications of 
Carcieri clearly rests with Congress and that a decision to do so in 
isolation of the larger problems of the fee-to-trust system would 
represent an historic missed opportunity. Indeed, a legislative 
resolution that hastily returns the trust land system to its status 
before Carcieri will be regarded as unsatisfactory to counties, local 
governments, and the people we serve. Rather than a ``fix,'' such a 
result would only perpetuate a broken system, where the non-tribal 
entities most affected by the trust acquisition process are without a 
meaningful role. Ultimately, this would undermine the respectful 
government-to-government relationship that is necessary for both tribes 
and neighboring governments to fully develop, thrive, and serve the 
people dependent upon them for their well being.
    Our primary recommendation to the Committee and to Congress is 
this: Do not advance a congressional response to Carcieri that allows 
the Secretary of the Interior to return to the flawed fee-to-trust 
process. Rather, Congress should make meaningful, comprehensive reforms 
to the trust land system. Legislation should include provisions that 
ensure local governments and impacted parties are able to file a 
challenge to a trust acquisition decision before title to the land is 
transferred. Such a change is necessary in light of the Department of 
the Interior's recent decision--discussed in further detail below--to 
eliminate the waiting period in which the Secretary was required to 
publish a notice of a trust decision 30 days before actually acquiring 
title to the land.
    CSAC believes that the Carcieri decision presents Congress with an 
opportunity to carefully exercise its constitutional authority for fee-
to-trust acquisitions and to define the respective roles of Congress 
and the Executive Branch in trust land decisions. Additionally, it 
affords Congress with the opportunity to establish clear and specific 
congressional standards and processes to guide trust land decisions in 
the future. A clear definition of roles is acutely needed regardless of 
whether trust and recognition decisions are ultimately made by 
Congress, as provided in the Constitution, or the Executive Branch 
under a congressional grant of authority.
    It should be noted that Congress has the power to not provide new 
standard-less authority to the Executive Branch for trust land 
decisions and instead retain its own authority to make these decisions 
on a case-by-case basis as it has done in the past, although 
decreasingly in recent years. Whether or not Congress chooses to retain 
its authority or to delegate it in some way, it owes it to tribes and 
to states, counties, local governments and communities, to provide 
clear direction to the Secretary of the Interior to make trust land 
decisions according to specific congressional standards and to 
eliminate much of the conflict inherent in such decisions under present 
practice.
    Looking ahead, we respectfully urge Members of this Committee to 
consider a comprehensive approach to the problem in any legislation 
seeking to address the trust land process post-Carcieri, namely: (1) 
the absence of authority to acquire trust lands, which affects post-
1934 tribes, and (2) the lack of meaningful standards and a fair and 
open process, which affects states, local governments, businesses and 
non-tribal communities. As Congress considers the trust land issue, it 
should undertake reform that is in the interests of all affected 
parties.
    Some of the more important new standards should be as follows:
Notice and Transparency
    1) Require Full Disclosure from the Tribes on Trust Land 
Applications and Other Indian Land Decisions, and Fair Notice and 
Transparency from the BIA. The Part 151 regulations are not specific 
and do not require sufficient information about tribal plans to use the 
land proposed for trust status. As a result, it is very difficult for 
affected parties (local and state governments, and the public) to 
determine the nature of the tribal proposal, evaluate the impacts, and 
provide meaningful comments.
    BIA should be directed to require tribes to provide reasonably 
detailed information to state and affected local governments, as well 
as the public, about the proposed uses of the land early on, not unlike 
the public information required for planning, zoning and permitting on 
the local level. This assumes even greater importance since local 
planning, zoning and permitting are being preempted by the trust land 
decision; accordingly, information about intended uses is reasonable 
and fair to require.
    Legislative and regulatory changes need to be made to ensure that 
affected governments receive timely notice of fee-to-trust applications 
and petitions for Indian land determinations in their jurisdiction and 
have adequate time to provide meaningful input. Indian lands 
determinations, a critical step for a tribe to take land into trust for 
gaming purposes, is conducted in secret without notice to affected 
counties or any real opportunity for input. As previously indicated, 
counties are often forced to file a FOIA request to even determine if 
an application was filed and the basis for the petition.
    Notice for trust and other land actions for tribes that go to 
counties and other governments is not only very limited in coverage, 
the opportunity to comment is minimal; this must change. A new paradigm 
is needed where counties are considered meaningful and constructive 
stakeholders in Indian land-related determinations. For too long, 
counties have been excluded from providing input in critical Department 
of Interior decisions and policy formation that directly affects their 
communities. This remains true today as evidenced by new policies being 
announced by the Administration without input from or consultation with 
local government organizations.
    The corollary is that consultation with counties and local 
governments must be substantive, include all affected communities, and 
provide an opportunity for public comment. Under Part 151, BIA does not 
invite comment by third parties even though they may experience major 
negative impacts, although it will accept and review such comments. BIA 
accepts comments only from the affected state and the local government 
with legal jurisdiction over the land and, from those parties, only on 
the narrow question of tax revenue loss, government services currently 
provided to the subject parcels, and zoning conflicts. As a result, 
under current BIA practice, trust acquisition requests are reviewed 
under a very one-sided and incomplete record that does not provide real 
consultation or an adequate representation of the consequences of the 
decision. Broad notice of trust applications should be required with at 
least 90 days to respond.
Define Tribal Need
    2) The BIA Should Define ``Tribal Need'' and Require Specific 
Information about Need from the Tribes. The BIA regulations provide 
inadequate guidance as to what constitutes legitimate tribal need for a 
trust land acquisition. There are no standards other than the 
stipulation that the land is necessary to facilitate tribal self-
determination, economic development or Indian housing. These standards 
can be met by virtually any trust land request, regardless of how 
successful the tribe is or how much land it already owns. As a result, 
there are numerous examples of BIA taking additional land into trust 
for economically and governmentally self-sufficient tribes already 
having wealth and large land bases.
    Congress should consider developing standards requiring 
justification of the need and purpose for acquisition of additional 
trust lands so that the acquisition process does not continue to be a 
``blank check'' for removing land from state and local jurisdiction. 
Notably, CSAC supports a lower threshold for acquisition of trust land 
that will be used only for non-gaming or non-intensive economic 
purposes, including governmental uses and housing projects.
Changes in Use of Land
    3) Applications Should Require Specific Representations of Intended 
Uses. Changes in use should not be permitted without further reviews, 
including environmental impacts, and application of relevant procedures 
and limitations. Such further review should have the same notice, 
comment, and consultation as the initial application. The law also 
should be changed to explicitly authorize restrictions and conditions 
to be placed on land going into trust that further the interests of 
both affected tribes and other affected governments.
Intergovernmental Agreements
    4) Tribes that Reach Local Intergovernmental Agreements to Address 
Jurisdiction and Environmental Impacts Should Have a Streamlined 
Process. The legal framework should encourage tribes to reach 
intergovernmental agreements to address off-reservation project impacts 
by reducing the threshold for demonstrating need when such agreements 
are in place. Tribes, states, and counties need a process that is less 
costly and more efficient. The virtually unfettered discretion 
contained in the current process, due to the lack of clear standards, 
almost inevitably creates conflict and burdens the system. A process 
that encourages cooperation and communication provides a basis to 
expedite decisions and reduce costs and frustration for all involved.
    It should be noted that an approach that encourages 
intergovernmental agreements between a tribe and local government 
affected by fee-to-trust applications is required and working well 
under recent California State gaming compacts. Not only does such an 
approach offer the opportunity to streamline the application process, 
it can also help to ensure the success of the tribal project within the 
local community. The establishment of a trust land system that 
incentivizes intergovernmental agreements between tribes and local 
governments is at the heart of CSAC's fee-to-trust reform 
recommendations and should be a top priority for Congress.
Clear and Objective Standards
    5) Establish Clear and Objective Standards for Agency Exercise of 
Discretion in Making Fee-to-Trust Decisions. The lack of meaningful 
standards or any objective criteria in fee-to-trust decisions made by 
the BIA have been long criticized by the U.S. Government Accountability 
Office and local governments. For example, BIA requests only minimal 
information about the impacts of such acquisitions on local communities 
and trust land decisions are not governed by a requirement to balance 
the benefit to the tribe against the impact to the local community. As 
a result, there are well-known and significant impacts of trust land 
decisions on communities and states, with consequent controversy and 
delay and distrust of the process.
    Furthermore, the BIA has the specific mission to serve Indians and 
tribes and is granted broad discretion to decide in favor of tribes. In 
order to reasonably balance the interests of tribes and local 
governments, the Executive Branch should be given clear direction from 
Congress regarding considerations of need and mitigation of impacts to 
approve a trust land acquisition. However any delegation of authority 
is resolved, Congress must specifically direct clear and balanced 
standards that ensure that trust land requests cannot be approved where 
the negative impacts to other parties outweigh the benefit to the 
tribe.
    The attached fee-to-trust legislative reform proposal developed by 
CSAC seeks to address the inequities and flaws in the current trust 
land system. The centerpiece of the reform package is a proposal that 
would provide an incentive for tribes and local governments to enter 
into judicially enforceable mitigation agreements. Additionally, the 
proposal would remedy the serious defects in the fee-to-trust process 
related to inadequate notification and consultation requirements, 
including those outlined in the aforementioned Pepperdine Law Review 
analysis of fee-to-trust decisions, as well as address other 
significant shortcomings in the trust land system.
Appeals of Land Acquisition Decisions
    On November 13th of this year, the Department of the Interior 
finalized a new rule governing decisions by the Secretary to approve or 
deny applications to acquire land in trust. CSAC believes that the 
final rule, which amends the Department's 151 regulations, will 
expedite trust approvals to the detriment of all interested parties, 
and to the administrative process itself.
    The rule (found at 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15) 
effectively repeals the Department's ``self-stay'' policy, which 
required the Secretary to publish a notice of a trust decision 30 days 
before actually transferring title. The now-eliminated waiting period 
was intended to ensure that interested parties had the opportunity to 
seek judicial review under the Administrative Procedure Act (APA) 
before the Secretary acquired title to land in trust. In virtually all 
past cases, if a challenger filed suit within the 30-day window, the 
Secretary agreed to ``self-stay'' the trust transfer during court 
proceedings, thus allowing for the orderly resolution of the challenge.
    It should be noted that the Department's new rule incorrectly 
asserts that because of the Supreme Court's 2012 decision in Match-E-
Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, eliminating 
the current 30-day wait period will not effect a change in the law or 
affect any parties' rights under current law. In Patchak, the Court 
determined that the Quiet Title Act did not bar APA challenges to trust 
decisions after title transfer to the United States. However, as 
described below, the final rule puts local governments in a far worse 
position by dramatically altering the balance of equities and 
eliminating their ability to obtain emergency relief after a decision 
to accept the land in trust, but before the land achieves trust status.
    The rule fails to recognize that the facts on the ground and 
balance of equities changes when land achieves trust status and 
development commences. The rule directs the Secretary or other BIA 
official to ``immediately acquire the land in trust'' after a decision 
becomes final, and the BIA is encouraging tribes to begin development 
immediately upon acceptance of land into trust. Both of these steps 
appear intended to foreclose concerned parties from obtaining emergency 
relief, even with regard to trust decisions that are clearly 
inappropriate and arbitrary. Courts are less likely to order emergency 
relief if a tribe and its development partners have invested resources 
and substantially implemented a gaming or other development project. 
Indeed, courts may be unable to grant relief at all if tribes decline 
to participate in the action and claim sovereign immunity.
    The rule also contravenes protections in the APA for parties 
seeking emergency relief from administrative decisions. In particular, 
Section 705 of the APA authorizes federal courts to postpone the 
effective date of an agency action and to preserve status or rights 
pending conclusion of the review proceedings. The rule circumvents 
Section 705 by pushing land transfers before an affected party can seek 
judicial review and allow the courts to exercise their authority to 
review trust transfers. Communities and local governments will be 
harmed because, even if successful in the litigation, their success 
likely will not bring back the tax revenue and other fees lost when the 
land went into trust, nor remove the incompatible developments that are 
not permitted under comprehensive local land use plans, now possible 
without the rule.
    The Department's push for immediate project implementation also 
appears intended to impede a court's ability to award complete relief. 
Litigation can take years to reach a final decision, which raises 
strong concerns regarding the Department's practical ability to unwind 
a trust decision and remove land from trust. The rule ignores these 
concerns, and includes no procedure for undoing a trust decision in a 
transparent and orderly manner.
    The Department is amiss in asserting that these harms are balanced 
by the rule's requirements regarding the notification of decisions and 
administrative appeal rights. These changes are equally flawed, as the 
rule requires communities and local governments to make themselves 
known to BIA officials at every decisionmaking level to receive written 
notice of a trust land acquisition. It will be extremely difficult for 
anyone to sort through local and national BIA organizational charts to 
try to determine how, when, and by whom a particular application will 
be processed. BIA decisionmaking is far from transparent today, and the 
rule will make the process even more opaque and participation more 
difficult in the future.
    In light of the Department's new rule, we believe that Congress 
should seek legislative changes that would entitle a party, upon timely 
request, to an automatic 30 day stay of a decision approving a trust 
application. A stay of decision should hold true whether a party has 
appealed a trust decision to the Interior Board of Indian Appeals, or 
has appeared before the Assistant Secretary--Indian Affairs. This would 
enable the party to preserve its rights by seeking a judicial order 
staying the effectiveness of any Departmental approval pending the 
court's review of the validity of that decision.
    Additional provisions requiring BIA to publish trust applications 
on its website, provide regular updates as to the status of its review, 
identify the decision-makers responsible for an application, and 
provide contact information to allow parties to identify themselves as 
interested parties also should be required. Parties should be exempt 
from exhaustion requirements in the absence of substantial compliance 
with these provisions.
California's Situation and the Need for a Suspension of Fee-To-Trust 
        Application Processing
    California's unique cultural history and geography, and the fact 
that there are over 100 federally-recognized tribes in the state, 
contributes to the fact that no two fee-to-trust applications are 
alike. The diversity of applications and circumstances in California 
reinforce the need for both clear, objective standards in the fee-to-
trust process and the importance of local intergovernmental agreements 
to address particular concerns.
    The sheer number of pending applications in California further 
amplifies the need for reform. From 2011 to September of 2013 alone, 
dozens of California tribes submitted fee-to-trust applications--for 
both gaming and non-gaming purposes--totaling more than 9,600 acres of 
land. Numerous previously submitted applications remain in process at 
the Department of the Interior representing tens of thousands of 
additional acres of land that could be removed from state and federal 
tax rolls and exempt from county and state regulatory control.
    The Supreme Court's decision in Carcieri complicates the picture in 
California and across the country. As previously discussed, the Court 
held that the authority of the Secretary of the Interior to take land 
into trust for tribes extends only to those tribes under federal 
jurisdiction in 1934. However, the phrase ``under federal 
jurisdiction'' is not defined.
    Notably, many California tribes are located on ``Rancherias,'' 
which were originally federal property on which homeless Indians were 
placed. No ``recognition'' was extended to most of these tribes at that 
time. If legislation to change the result in Carcieri is considered, it 
is essential that changes be made to the fee-to-trust processes to 
ensure improved notice to counties and to better define standards to 
remove property from local jurisdiction. Requirements must be 
established to ensure that the significant off-reservation impacts of 
tribal projects are fully mitigated. In particular, any new legislation 
should address the significant issues raised in states like California, 
which did not generally have a ``reservation'' system, and that are now 
faced with small Bands of tribal people who are recognized by the 
Federal Government as tribes and who are anxious to establish large 
commercial casinos.
    In the meantime, CSAC strongly urges the Department of the Interior 
to suspend further fee-to-trust land acquisitions until Carcieri's 
implications are better understood and legislation is passed to better 
define when and which tribes may acquire land, particularly for gaming 
purposes.
Pending Legislation
    As stated above, congressional action must address the critical 
repairs needed in the fee-to-trust process. Unfortunately, legislation 
currently pending in the House (H.R. 279 and H.R. 666) fails to set 
clear standards for taking land into trust, to properly balance the 
roles and interests of tribes, state, local and federal governments in 
these decisions, and to clearly address the apparent usurpation of 
authority by the Executive Branch over Congress' constitutional 
authority over tribal recognition.
    H.R. 279, in particular, serves to expand the undelegated power of 
the Department of the Interior by expanding the definition of an Indian 
tribe under the IRA to any community the Secretary ``acknowledges to 
exist as an Indian Tribe [emphasis added].'' In doing so, the effect of 
the bill is to facilitate off-reservation activities by tribes and 
perpetuate the inconsistent standards that have been used to create 
tribal entities. Such a ``solution'' causes controversy and conflict 
rather than an open process which, particularly in states such as 
California, is needed to address the varied circumstances of local 
governments and tribes.
Conclusion
    We ask Members of the Committee to incorporate the aforementioned 
requests into any Congressional actions that may emerge regarding the 
Carcieri decision. Congress must take the lead in any legal repair for 
inequities caused by the Supreme Court's action, but absolutely should 
not do so without addressing these reforms. CSAC's proposals are 
common-sense reforms, based upon a broad national base of experience on 
these issues that, if enacted, will eliminate some of the most 
controversial and problematic elements of the current trust land 
acquisition process. The result would help states, local governments 
and non-tribal stakeholders. It also would assist trust land applicants 
by guiding their requests towards a collaborative process and, in doing 
so, reduce the delay and controversy that now routinely accompany 
acquisition requests.
    We also urge Members to reject any ``one-size-fits-all'' solution 
to these issues. In our view, the Indian Gaming Regulatory Act has 
often represented such an approach, and as a result has caused many 
problems throughout the nation where the sheer number of tribal 
entities and the great disparity among them requires a thoughtful case-
by-case analysis of each tribal land acquisition decision.
    Thank you for considering these views.
    Attachment


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    The Chairwoman. Thank you, and thank you for your testimony
    I think I might just start with you on a couple of things. 
One, do you know if the counties took any position or had any 
position prior to the gaming laws that were on the books? Did 
the counties ever have problems in dealing with land into trust 
issues or take a formal position?
    Ms. Dillon. You mean prior to 1988?
    The Chairwoman. Yes.
    Ms. Dillon. I don't know that. I don't know that. And I 
don't have a lot of specific details at hand. I was only 
informed about this hearing a week ago Friday. And we were not 
able to compile all that we would like to present. I understand 
we have another two weeks to present that.
    The Chairwoman. Yes. Do you think any of the current issues 
that your county association, just within California, and we 
will submit the NACO letter for the record, but on your 
California counties, do you think there are any issues that 
they have in taking land into trust that aren't related to 
gaming?
    Ms. Dillon. Oh, yes, I would definitely say so. As you 
know, California produces one-third of the Nation's food crop. 
We have a very great concern about diminishing agricultural 
land. In California in the 1940s, 1950s and 1960s and into the 
1970s, we saw subdivisions encroach on agricultural land. But 
in the last 20 to 30 years, there has been a concentrated focus 
on protecting agricultural land and not having sprawl, as we 
saw in that period of time.
    We are working, for instance, in my county, very closely 
with the Napa Valley Vintners Association, because counties do 
not have the ability to engage and there is no, there is not an 
approach with this process that encourages local cooperative 
agreements, we have no real protection in terms of anyone who 
acquires or a tribal entity, for instance, that acquires 
agricultural land, in keeping it in agriculture, in making sure 
that that is how it continues, and in making sure that other 
issues concerning water use and so forth are adhered to.
    Without that enforceability mechanism, we have great 
concerns, even with regard to lands taken into trust for 
agricultural purposes.
    The Chairwoman. So do you know if any of the California 
counties have ever objected or sent remarks, testimony, to the 
Department of Interior on a project that is not gaming?
    Ms. Dillon. I don't know that personally, but I intend to 
find out.
    The Chairwoman. That would be great, thank you. I am just 
curious to know and understand on that.
    And has your association taken a position on tribal 
sovereignty?
    Ms. Dillon. I don't know that we have a formal position. I 
believe our written remarks, the written testimony reflects our 
great respect for tribal sovereignty. This is not the concern 
that we have. It is not our position that we want to have local 
control. We are simply advocating to be able to have 
cooperative agreements. That is not the path that California is 
headed in.
    The Chairwoman. If I could turn to Ms. Johnson-Pata. I was 
asking the Assistant Secretary this issue about economic 
impact, because I feel like we have had this chilling effect 
and it is hard to understand or measure how much has been 
slowed down. Do you have any data from the National Congress of 
American Indians on that?
    Ms. Johnson-Pata. I made a note of that when you were 
asking that question. The difficulty with that is, we hear the 
stories, I hear from tribes, several tribes who have let us 
know about investors who have decided not to invest because of 
the uncertainty of the land. So we hear those stories, but 
those are really difficult for them to document. First of all, 
a tribe doesn't want to be in a position where maybe a future 
investor might be a little concerned. And secondly, investors 
don't want to be seen as red-lining. So that becomes one of the 
challenges, I think, in doing so.
    When you asked that question, I was thinking if there was a 
possible way for us to do some kind of confidential kind of 
survey to get some kind of grasp of economic impact. But I will 
check with our folks at the Policy Research Center to see if 
there is a means of being able to come up with that. It is 
pretty targeted right now with the 18 cases that are moving 
forward. Certainly cases adjacent to those areas would probably 
be more targeted.
    But overall, I don't know how you measure the economic 
impact of slow decision-making, which I think is the most 
critical right now. Decision-making around particularly energy 
development and lands that would be utilized for energy 
development and the slowed process of taking land into trust 
and to addressing those decisions has increased, created a 
bottleneck for tribal development moving forward. That causes a 
chilling effect on investors and folks who want to have some 
co-development responsibilities with tribes.
    The Chairwoman. To me, it is an important issue. I know, as 
you say, it is probably hard to document. We could probably 
look at pre-2009 and see what the average permit process was.
    Ms. Johnson-Pata. The time line.
    The Chairwoman. Time line, even excluding gaming. But 
again, the reason I mention this is because I think most of my 
colleagues think this issue has to deal with land into trust, 
when in reality I think it probably deals more with NIGRA and 
the process by which tribes are recognized. Those two issues, 
as opposed to really the land into trust issue. Land into trust 
is just the last step in a process.
    Ms. Johnson-Pata. Right.
    The Chairwoman. As opposed to, we have many previous chairs 
to me who have had many, many hearings on the failure to 
implement various policies after the original Gaming Act was 
implemented, and then the policy decisions to follow on that. A 
lot of those got dragged out over a long period of time and 
caused lots of challenges and things that we are still dealing 
with.
    But I think it is interesting that we don't have any data 
to measure this. Maybe that is why most of my colleagues think 
this issue deals with gaming, when 98 percent of it doesn't 
have anything to do with gaming.
    Ms. Johnson-Pata. We will definitely work on a report that 
we can at least share with you, as much as we are able, to 
quantitatively put together.
    The Chairwoman. Okay. And what would you say is certainty 
in the process? What do you think is a time frame for, what 
kind of process for reviewing land into trust and getting land 
through a process, what do you think certainty is?
    Ms. Johnson-Pata. Prior to Patchak, we got, the certainty 
was once the Department made a determination, that that was the 
determination the tribe could move forward. And that was really 
critically important for us, because we believe our 
relationship is with the Federal Government. And when the 
Federal Government makes this decision that says, this land is 
taken into trust for the purpose of the tribe to develop or to 
do what it is intended to do, that should be certainty. And it 
shouldn't be second-guessed again.
    So I believe that that is what certainty is. We have worked 
with the Department to try to make sure that we can at least 
identify any folks that may have challenges to the taking of 
that land into trust, so that there is a process for addressing 
that. So the uncertainty of who may be out there in the world 
of challenges is limited. So certainty is, I believe, when the 
Department takes that action and finalizes that action, that 
should be what certainty is.
    The Chairwoman. You don't have a time frame in mind?
    Ms. Johnson-Pata. A time frame?
    The Chairwoman. Well, just in the sense of, I guess on all 
these, we have hydro relicensing that happens every 50 years. I 
think it takes probably about 10 years to decide the 
relicensing of hydro. Some people would say, in a very 
appropriate need, because hydro relicensing has to balance a 
lot of different needs, a lot of people have to weigh in, a lot 
of people have to discuss. I think my former colleague from 
Idaho and I worked on a process to make that a little smoother. 
Because 10 years is a pretty long time to go through a process.
    Ms. Johnson-Pata. And unfortunately, some of these land 
into trust applications are 10 years plus. Because as they are 
having to deal with some of the nuances, every single 
application is different. And there are things to be able to 
consider. That is why I think that trying to develop, the 
regulatory process allows for that engagement, to evaluate 
those applications on a case by case basis. And I would be 
concerned about legislation that so narrowly constrained this 
conversation about even ancestral land, for example. The 
stories were different for each tribe. I think that is 
important.
    The current process, the pre-Patchak process was that the 
Department made that decision, and then there was that 30 days 
and it was final, that was it. Thirty days for comments and 
then it was final. Now today, they make a decision and we note 
who potentially has challenges. And then we weigh out their 
ability to decide whether or not they want to litigate. And we 
know at least what the scope of that will be.
    I think reasonable time frames, like in any process, if 
someone was, housing for example, something I know more about, 
a tribe purchases a parcel for housing. And clearly, like any 
other development, you should reasonable think that within 
three months to six months at max, you should be able to 
finalize and close your loan, right? That process doesn't 
happen. And it has become more labored because of the longer 
term of all these questions that have to go about, rather than 
just looking at this as a parcel of land, as being brought to 
the tribe to provide housing to its people as you would 
purchase housing as a developer or somebody else would purchase 
housing in the common market.
    The Chairwoman. Senator Begich?
    Senator Begich. Thank you very much.
    Jackie, let me ask you a question, I don't know if you can 
answer this, and again, I don't come from a State that has 
gaming. And I agree with the Chairwoman, it seems like that is 
all this issue continues to circle around, but really it is a 
very small percentage. But let me ask you, in California, I am 
going to use California as an example, aren't there compacts 
with the State in regard to the arrangement?
    Ms. Johnson-Pata. There is.
    Senator Begich. And there are financial arrangements, 
right?
    Ms. Johnson-Pata. Yes, there is. Extensive compacts with 
the State, particularly in California.
    Senator Begich. Right, but financial arrangements, too.
    Ms. Johnson-Pata. Yes.
    Senator Begich. So the State receives some of the proceeds?
    Ms. Johnson-Pata. Most of the proceeds, each tribe 
negotiates their compact. But they have pretty much a standard 
in California.
    Senator Begich. But it is a percentage?
    Ms. Johnson-Pata. It is a range around 25 percent.
    Senator Begich. Yes, so the State gets some money.
    Ms. Johnson-Pata. Yes.
    Senator Begich. My guess is they probably don't distribute 
it equally to the counties. That is a different problem. I know 
this from my State, which has oil wealth, that my State, they 
are cloudy sometimes on giving it to local governments. As a 
former mayor, I always believe the States shouldn't have the 
money, but that is a different issue.
    So I am sensing, I am just guessing here that there are 
impacts, I don't deny that. Just like if a Wal-Mart opened up, 
there are going to be impacts. If they develop a mall, there 
are going to be impacts. There are always impacts. Matter of 
fact, most counties and cities, residential development, if you 
took it as an economic model, is a loser because of all the 
costs of services that go along with it, versus a commercial 
building and compacted lot that produces a lot of jobs and 
potential revenue, sales tax, especially in California. We 
don't have it in Anchorage.
    But I want to make sure on that point
    Ms. Johnson-Pata. Yes
    Senator Begich. So let me, if I can, Ms Dillon, I am 
struggling with this, because I am sitting here, and it reminds 
me for a moment of city council time, when I was on the city 
council. Communities don't want certain things in the 
neighborhood. I will take LA County, we don't have counties, we 
have boroughs, but LA County, 30 some different cities work in 
that county. Each city tries to take business from each other. 
But one city doesn't regulate another city.
    And this is the fundamental issue that I am struggling with 
here. Tribes have a government-to-government relationship. That 
is what they are. They are governments. We get a little foggy 
sometimes around here about what that means. But it is very 
clear to me. It is a government-to-government relationship. So 
it is no different than, I will use LA County, with 32 cities, 
when one city says, I am going to do X, and the city next door, 
I will use a city where I have an investment in, in Nevada, 
Carson City. Because Carson City wouldn't do the right deal 
with a developer, they went right over the city line and built 
a development there.
    Of course, the city doesn't have the right to tell that 
city what to do. Because the city made a choice, the developer 
made a choice.
    In this situation, I am struggling, when a tribe, a 
government, recognized by the Federal Government, decides to do 
something in their jurisdiction and rights, how that is 
different from a city next door who decides to do something 
that the city on the other side doesn't like. Help me 
understand that. Do you see what I am saying?
    Ms. Dillon. I do.
    Senator Begich. That is the fundamental issue here, it is a 
government-to-government relationship.
    Ms. Dillon. It is a government-to-government relationship. 
And I can't speak to the other 49 States, obviously. But in 
California, we have something called LAFCO, Local Area 
Formation Commission, in every county, that includes the county 
and the cities in that county. They are not allowed, things 
that are inter-jurisdictional, of what the kind you are 
describing, where a city might acquire land in the county, that 
is not allowed to happen unless it goes through the LAFCO 
process.
    So we all have to answer to something greater than 
ourselves.
    Senator Begich. But the challenge is, we took their land. 
So they are trying to get their land back. It is different than 
a city. But that agreement you have doesn't tell a city that 
another city can veto what they want to do in their city, 
correct?
    Ms. Dillon. No, and our concern is not, once, our issue 
isn't with tribal sovereignty.
    Senator Begich. I get that. But they get their land, that 
is part of their government, what does that matter what they 
then do with it? It is similar to a city to city relationship.
    Ms. Dillon. Our concerns are with that fee to trust process 
in terms of ancestral land, in terms of, is that the land that 
this Native American group had before, that they should now be 
able to reacquire and then deal with as they would desire. We 
are talking about way back early int eh process, about the 
acquisition of land.
    And the fact of the matter is that in a place like 
California, despite the fact that we have vast areas that are 
open space and in national parks and Federal lands, 39 million 
of us, 80 percent of the 39 million are living in a pretty 
concentrated area. And what happens next door is very important 
and is affected. And we have, in the Bay Area where I live, we 
have 9 counties and 101 cities. And we work together to plan 
where housing goes. So we don't, yes, I can't tell Sonoma 
County or Solana County, my neighbors, what they can do. But we 
have gotten past that by working together on the bigger 
picture.
    Senator Begich. But there is no jurisdictional requirements 
for you to do that. You just did it.
    Ms. Dillon. Yes.
    Senator Begich. I will tell you, every time I go to a 
community around the Country, I visit tribes, some landless 
tribes. Matter of fact, in the wine country, I was up north 
that they showed me some of their lands that they have been 
able to acquire that are ag lands. That was very impressive, 
that they were putting them into wine country land, in fact, to 
produce.
    Ms. Dillon. Not in Napa County, but yes, that is right.
    Senator Begich. Yes, Napa County is not only wine country, 
it is the wine country, I know in some people's minds, but it 
is not the only. I will tell you eastern Washington has some 
beautiful wine country. So it is all different.
    But I am just saying to you that I saw the land. I thought 
it was very responsible. Because why? They were working with 
the local community. And it wasn't regulated for them to do 
that. It is good business and good for their community.
    So that is why I understand your point of, let's try to 
catch everything. I am not seeing where the problem is at the 
level you are describing.
    Now, I get where people don't like gaming. I get that. Our 
State does not allow gaming. The whole State. I get that. But 
this is only 1, 2 percent of the issue. I visit tribes all over 
the Country. And I will tell you, that is not the issue I see 
as the prevalent issue. I see people who have land that they 
want to get back into their homelands and then have a 
relationship with whatever those governments are adjoining 
them, and I have see it successful.
    Now, does gaming by itself and its activity create all 
kinds of other activities? Yes. That is why in your State there 
is a compact or compacts, I should say, but if the State is not 
sharing that wealth and those impact dollars the right way, 
that is a different question that we can't answer here. I would 
love if I could figure out a way to tell my State that they 
need to give more money to local governments that they are 
taking on oil and gas revenues. They don't. They should, 
because that is the best expenditure location.
    But I see multiple issues here. So I just want to kind of 
put it out there, not necessarily, I don't know if I need an 
answer. I am struggling with why this would not get the fix, 
get land going into trust again in the right way. And the 
cooperation I have seen in many communities I have visited is 
occurring without a regulatory process, without the Federal 
Government saying, you shall do this.
    Ms. Dillon. If I might respond with three points, one is 
that probably, I am going to say, everybody in this room, we 
are all reasonable people. I bet we could all live in a town 
together and not even need zoning regulations. But that is not 
how the world works. We have to have laws for the 1 or 2 
percent or however many there are that don't work 
cooperatively.
    And I submit to you, I don't have actual names and places 
today, but I can tell you based on what I have heard from my 
colleagues in CSAC that there are, just as there are in every 
population, every group of folks, some folks who don't want to 
play by the rules, some folks who don't respect others. And 
that is why, respectfully, we are asking for a better 
regulatory structure. It doesn't have to do with the bulk of 
folks.
    I also want to say that I agree that tribal nations deserve 
certainty. And I think in a government-to-government 
relationship both sides should have certainty. We need, county 
governments need to have certainty that the mitigations are 
addressed.
    And I believe, I am not conversant on the law that creates 
the requirement for the compacts. But I will be looking into 
it, I can assure you, in the next two weeks.
    Senator Begich. I bet you you should get your Governor to 
do a little revenue sharing off those compacts.
    Ms. Dillon. Again, I have no idea if he is even allowed to. 
But I am going to, the last point I would like to make is with 
regard to the quantification that you are looking for. And the 
quantification that I see is the number of lawsuits. Any time 
you have a situation with the number of lawsuits that we have 
out there, all this litigation, there is something wrong. And 
that is the proof of it. Most of those lawsuits are not with 
regard to only the Carcieri issue.
    So as an elected person, and I would guess that you feel 
the same way, our job is to try to fix things so that future 
litigation doesn't occur. I think this Committee is in a place 
to be able to do that if more than the Carcieri fix is 
addressed.
    The Chairwoman. I am sorry, did you say most of them were 
related? Did you mean most of those other issues weren't 
related to gaming or they were related to gaming? When you said 
most of these weren't related?
    Ms. Dillon. I said the litigation that is out there is not 
all just related to Carcieri issues.
    The Chairwoman. Meaning?
    Ms. Dillon. It is related to fee to trust issues.
    The Chairwoman. But mostly around gaming?
    Ms. Johnson-Pata. They are fee to trust issues, but they 
are using the Carcieri as the their ability to pursue.
    Ms. Dillon. And my point is, if I may, my point is simply 
by fixing Carcieri it is not going to make litigation go away. 
We had litigation before the Carcieri decision and I think we 
will continue to see it as long as the Department of Interior 
continues to operate with the interpretations. One of the 
things we have great concern about is the rule that was just 
adopted within the last two months. There hasn't been any 
litigation on it yet because it is not right. But I predict 
that we will be seeing some.
    The Chairwoman. Well, as someone who chaired an energy 
subcommittee on water on the oversight of the San Joaquin water 
settlement issue, I agree. I think that had been like 18 years 
in litigation and finally everybody came to the table and said, 
this is what we want to do for water, which is basically 
figuring out how to more efficiently use the water in the Bay 
Area that people had. So I agree that it is a better process to 
figure out.
    One of the things, I want to go back to Ms. Johnson-Pata, 
you heard Ms. Dillon, she says she doesn't want to affect 
tribal sovereignty. So one of the issues that I am interested 
in is if the association is encouraging a streamlined process, 
that is voluntary, do you think that impacts tribal 
sovereignty?
    Ms. Johnson-Pata. A streamlined process that is voluntary?
    The Chairwoman. Yes. One of the things, as I was mentioning 
earlier, the hydro relicensing decision, a lot of it was, 
people would wait in the process and then end up filing suit 
and it would elongate the process even longer. So one of the 
things that we did was say, you could form agreements up front. 
But they were voluntary. They were totally voluntary. It is 
just a way to get some of the issues on the table.
    Ms. Johnson-Pata. I think you see that all the time with 
tribes. They choose to have cooperative agreements. I look at 
California, I have spent a great deal of time there. There are 
a lot of cooperative agreements in California with the local 
communities on the water, the fire protection, other issues 
that mitigate impacts. I think that tribes see that as being a 
good neighbor. I think Marshall speaks to that, being a good 
neighbor and providing resources outside of just their tribe in 
many ways.
    So I think that is what we would all ultimately hope for, 
is to have those kinds of relationships.
    The Chairwoman. Do those take place as part of a normal 
function on land into trust issues?
    Ms. Johnson-Pata. It is very normal. It is part of a normal 
function.
    The Chairwoman. So in the beginning of a land into trust, 
people would go and form, basically have a discussion with the 
local government?
    Ms. Johnson-Pata. Every tribe who is pursuing land into 
trust ultimately wants to get to the land into trust. So if you 
are a businessman or tribal leader, you are going to take a 
look at what is out there as potential challenges and you are 
going to try to mitigate those or try to address them, try to 
be able to figure out how you can finalize your deal. And you 
don't go into it thinking that those things are going to become 
real obstacles. I don't know of any tribes who haven't tried to 
mitigate those issues. Challenges become when requests are 
unreasonable. And then all of a sudden, as happens in family 
groups, and other folks, those sometimes emotionally charged 
relationships then create their own obstacles to finding 
solutions together.
    But I see agreements after agreements. In fact, at NCAI's 
website you can see, I think we have, we haven't done this for 
a while, but several years ago we went just to take a look at 
law enforcement agreements when we were getting ready for the 
TROA. And there were over 400 agreements between tribes and 
local governments, just on law enforcement alone, and 
cooperative agreements.
    So Indian Country, it is a common use for us to be able to 
have agreements and to seek agreements with other governments 
in a respectful government-to-government relationship. Our 
point is, to make it very clear, our primary relationship is 
with the Federal Government. And this relationship with the 
Federal Government shouldn't be usurped by the county 
government. And we want to be able to make sure that when we 
make a decision with the Federal Government that that is a 
final decision. And that decision is what gets solidified 
through that relationship.
    The Chairwoman. So a voluntary agreement, you are saying 
they are done and you would support voluntary agreements?
    Ms. Johnson-Pata. Yes.
    The Chairwoman. Okay. Mr. Chairman, do you have any input 
on the counties' recommendations for additional local level 
input?
    Mr. Pierite. Yes, Madam Chairwoman. When Tunica-Biloxi 
entered into the State compact negotiations with the State of 
Louisiana, we took a small contingency of community leaders 
with us. We agreed up front, they actually came with us and 
helped negotiate the State compact. We are looking at, we have 
entered tribal government agreement with them for social 
services to provide health service, mental health services, law 
enforcement services. So it has been done. We have been doing 
it for over 20 years.
    And we always highly recommend that the counties or parish 
get involved with their tribal governments. Because it is the 
fair thing to do. And I want to echo what Ms. Johnson-Pata 
said, the trust responsibility, the relationship is between the 
tribal government and the U.S. government, not between the 
local counties and tribal governments. But we do respect our 
local governments and ask them into our reservation and work 
out any agreements for us to have a joint agreement.
    Also I want to mention about Tunica-Biloxi has been working 
with the U.S. Chamber of Commerce. They have agreed to do a 
study on the impact of Carcieri as it relates to lack of 
economic development and job creation, because of Carcieri. 
Hopefully we will have that study within six months.
    The Chairwoman. So when you were mentioning those compacts, 
those were compacts with the State of Louisiana around gaming 
issues?
    Mr. Pierite. The State of Louisiana, around gaming issues. 
We do have inter-tribal agreements as far as, inter-
departmental agreements as far as law enforcement, mental 
health, social services. We just have a close working 
relationship with our community. I would strongly encourage all 
counties and parishes as well as Native American tribes, 
because you have to be good neighbors.
    The Chairwoman. So if Tunica-Biloxi was taking land further 
into trust, would part of that at the beginning process be a 
dialogue with the local governments?
    Mr. Pierite. Yes. We would let them know that we were 
planning on putting land into trust and what is the purpose. 
Being good community partners allows respect to be built on 
both sides. One of the things about Carcieri is a lot of mis-
communication being put out there as far as this being a gaming 
issue. This is not about gaming. This is about putting land 
into trust, about tribes to get back lands that they once owned 
and that were stolen from them. It is a spiritual connection to 
that land.
    Before Columbus stumbled upon America, because he did not 
discover America, you cannot discover something where people 
were already here, Native Americans were here first. And all 
these lands were taken from us. I am not about to sit here and 
rehash old stuff, because we have to work together. You have to 
put it all in perspective and know that you have to be a good 
neighbor. But you have to be respectful of your neighbor. You 
have to respect their sovereignty. You have to respect what 
Native American Country has been through.
    In my opening comments, I mentioned about Native Americans 
walked for centuries in darkness. You have to take that to 
heart. Sometimes you have to put your spiritual eyes on it and 
see what people have been through and see what it is all about. 
Once again, it is about a spiritual connection. Because in 
those same lands you are speaking of, there are some tribes 
there, used to own their land. And in them is burial grounds. 
And in those burial grounds is dreams that will never come into 
fruition, books that were never written, stories that never 
will be told, relationships that never will be formed. And you 
have to put all that into perspective.
    It is not all about gaming. It is not all about dollars and 
sense. It is all about what we can bring back for our children, 
for our next generation. It is about securing the future for 
them. Thank you.
    The Chairwoman. I don't think I ever failed to meet with 
you or be in your presence where you don't say something very 
profound and meaningful. Thank you for reminding us about all 
of that.
    Are you saying on this notion of a streamlined process, if 
it was voluntary, if you are saying Tunica-Biloxi already do 
agreements, and you had a voluntary process and said, okay, you 
could have a streamlined process at Interior on land into trust 
if you had agreements, is that a problem? Is that acceptable?
    Mr. Pierite. My philosophy is, and I take difference with 
the demographic country philosophy, never enter, if you have 
the strength to enter into a conflict or confrontation, also 
into wisdom to bring resolution to same conflict or 
confrontation. So it is about sitting down to the table and 
discussing it. And yes, we will be willing to discuss it.
    But one of the things about a clean Carcieri fix that I 
would like to go on record is, we don't want to leave any 
tribes behind. With a clean Carcieri fix, we want to make sure 
that each and every tribe has the ability to put land into 
trust. Because that is the only thing they can hold onto. That 
is the only thing they can reach out to. That is the only thing 
they can embrace.
    The Chairwoman. I hear Ms. Dillon saying they just want to 
have some discussion. I hear other, there are all sorts of 
agreements going on or have gone on, there are other State 
ballot issues, I guess, or agreements, compacts that say okay, 
we don't want to be by schools or we don't want to be near 
this. So then I see Ms. Dillon, do you represent the Napa 
Valley area, is that what I heard?
    Ms. Dillon. I am a county supervisor in Napa County, yes.
    The Chairwoman. So I am assuming that one of these issues 
for you is you want to keep most of that land in wine 
production.
    Ms. Dillon. We have the first agricultural preserve, our 
valley floor, in the United States, and that is our goal. We 
are the equivalent of Bordeaux, if you will. And it can't be 
replicated anywhere else.
    The Chairwoman. And is that currently under threat by some 
proposed land into trust agreement?
    Ms. Dillon. Not an actual land into trust, it hasn't 
reached that stage yet. There is a group seeking recognition 
through the Federal court system with the stated intention of 
acquiring land for a casino.
    The Chairwoman. So is your issue with then their ability to 
be recognized and their holding, you said earlier you were not 
against tribal sovereignty, but you had questions about whether 
people had rights to access certain lands. I am trying to 
distinguish between --
    Ms. Dillon. We don't believe that the group of people who 
are seeking recognition necessarily have any connection with 
Napa County, that is more a desire to be in a relatively, well, 
a very well-known place that is highly desirable to many people 
as a place to be.
    The Chairwoman. So I think some of those issues are in a 
different area of concern as it relates to Indian Country. I 
don't know, Ms. Johnson-Pata, whether you want to comment on 
that.
    Ms. Johnson-Pata. I do. I think you hit it on the head. 
When there are, there are issues that are out there, folks that 
don't want something in their back yard, that comes up 
periodically in all kinds of development, inside and outside of 
Indian Country. We shouldn't clog up the system or for that 
matter, this whole Congressional process of trying to address 
land into trust, basic land into trust, pre-Carcieri, to make 
sure that we have the same rights that we had. All the Supreme 
Court was saying is, Congress, you need to clarify this.
    I remember Chief Justice Breyer saying to us at NCAI, many 
years ago, he came to us and he said, there is some gray matter 
that is making it difficult in the courts. We need Congress to 
clarify. What we are saying to Congress is, we need you to 
clarify this so we can go back to having land brought into 
trust for all of these other beneficial reasons.
    And this isn't the piece of legislation to piggyback on 
other issues and solutions. We want to be able to get back to 
pre-2009 status. And these other issues, such as Senator Begich 
talked about, I am from Alaska, this is a sensitive issue for 
me. But Alaska Natives have said, we want Carcieri for our 
brothers and sisters across the Country. We recognize our issue 
is tougher to deal with. We are not going to piggyback it onto 
the Carcieri fix. We are going to find another place for us to 
address that.
    I say this is another issue that wasn't brought about by 
the challenge that this issue is. We can't use that as the 
vehicle to be all, fix all. But we certainly should have 
continued dialogue on this issue and find the appropriate 
vehicle to address other concerns that are clearly more of a 
local nature, that should not bottleneck the whole potential 
economic system of Indian Country when we are just barely 
beginning to rise up from where we have been and grasping 
economic opportunity.
    And then now we can't develop our energy potential, we 
can't develop our reservation economies. Our health care 
facilities are stalled, our school systems are stalled, all 
because of this issue. This is not the vehicle to deal with an 
issue that has a controversy of a local nature that we can't 
fix in national legislation.
    The Chairwoman. But you would say, Ms. Johnson-Pata, that 
the counties do deserve to have an opportunity to express their 
concerns about these kinds of issues, particularly as they come 
up in the process of who might get recognized and how they get 
recognized and the process of how they might then proceed.
    Ms. Johnson-Pata. Absolutely. I think the process already 
says that people who have objections have a right to be able to 
voice their objections. And I think the process allows for 
that. I don't think those objections get elevated to the fact 
that every parcel of land that is being taken into trust for 
Indian Country should now be circumvented or stalled or a 
barrier to it, because somebody, and I am not just speaking to 
you, bu somebody has a concern in Napa Valley, so we want to 
change the whole system.
    I think there should be a process to be able to have that 
kind of meaningful dialogue and solution oriented, but still 
recognize the ultimate authority is with the Federal Government 
and the tribes as they deal with their trust relationship that 
is constitutionally bound.
    The Chairwoman. I did hear Ms. Dillon say that she wanted 
to honor that.
    Ms. Dillon. I do.
    The Chairwoman. I think that is good, and I hope you know 
what you mean when you say that. Those are big words, honoring 
and recognizing tribal sovereignty. There is a lot of law that 
goes with that.
    Ms. Dillon. Let me say that you asked me about Napa County 
and I responded. But that is not why I am here. So I want to 
make that really clear. I am here representing CSAC, and that 
is 58 counties who have grave concerns, who have put forth a 
position paper of the changes that they would like to see 
Congress implement. And again, it is asking that there be 
incentives for tribes and local governments to work together 
and to provide for cooperating agreements that are enforceable.
    If that is contrary to recognizing tribal sovereignty, then 
I will condition my prior statement. But what we would like to 
see is that as things evolve, we have a mechanism, an agreement 
for dealing with those issues, a working agreement. And as you 
know, California is a pretty heavily regulated State 
internally. We have new things coming up all the time that our 
State government wants us to do, with water, with wastewater, 
stormwater, constantly imposing new regulatory requirements 
that cost money.
    Many of those require us to work on a watershed basis. If 
you will just let me give you an example. All of a sudden you 
will have a watershed area where the State makes a regulation 
and says, if 90 percent of the land in this watershed is not 
cooperating, then every landowner is going to have to pay on an 
individual basis to the State. So obviously it behooves 
everyone to work together in the watershed to minimize their 
costs on whatever particular regulation this was, for irrigated 
ag lands in this case.
    But if we don't have a mechanism, if we had a tribal 
entity, for instance, that owned agricultural land and said, we 
are not going to participate, and we have no mechanism for 
enforcing that, it would have this impact that we would not be 
able to deal with, that was never anticipated at the time, 
perhaps, that the tribe acquired land.
    So it is those kinds of issues, that is the kind of 
agreement that we need to have and would like to have on a 
local government to tribal government basis. That is just one 
example.
    The Chairwoman. Okay. I thank all the witnesses. I have 
definitely pushed some things out there today in hopes that we 
might resolve this issue and move forward. I think I am in 
agreement with the panelists that if we end up in a legal 
lawsuit process that is just held up for years and years and 
years, that that is not going to be in our best interest, that 
we want to try and figure this out.
    People have given good food for thought today about how to 
do that. And we will certainly be taking that into 
consideration as we think about legislative solutions.
    I know how important this issue is to many people. We 
certainly want to restore, I think, what the 1934 Act had as an 
intention, which is not to divide tribes that are recognized. 
So we will be working on that issue and certainly taking into 
consideration how we move forward. But to do so that really 
brings about clarity.
    And maybe that we have to do things that are clarifications 
in other areas, and just to get there. But certainly we want to 
move forward as soon as possible on clearing this up, so that 
this larger issue of taking land into trust that has just been 
such a historic part of what I think has been very positive 
self-governance for tribes, resulting in very positive economic 
development and in many cases very positive economic 
development for the entire region, continues and continue as it 
has in the past.
    So we have a lot of work to do, but I thank all the 
witnesses for being here today and for their testimony.
    Mr. Pierite. Madam Chair, can I enter these letters of 
support from tribal leaders, tribal organization and community 
leaders into the record, please?
    The Chairwoman. Without objection.
    The Chairwoman. This hearing is adjourned.
    [Whereupon, at 4:25 p.m., the Committee was adjourned.]
                            A P P E N D I X

  Prepared Statement of Hon. William Iyall, Chairman, Cowlitz Indian 
                                 Tribe
    The Cowlitz Indian Tribe (``Cowlitz'' or ``Tribe'') is very 
appreciative of the Committee's commitment to resolving the crisis 
caused by the Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 
379 (2009), which has had devastating impacts on Indian Country--
threatening tribal sovereignty and economic self-sufficiency, creating 
unequal treatment of federally-recognized Indian tribes contrary to 
Congressional intent, and resulting in costly, protracted litigation in 
which the United States is the defendant (at taxpayer expense). As I am 
sure you are aware, the Cowlitz Tribe is currently involved in just 
this type of litigation. As a result, Cowlitz is on the front line of 
the efforts to deal with the Carcieri decision and this experience has 
afforded us some valuable insight that we think might benefit the 
Committee in its consideration of this very important issue.
    We greatly appreciate that the Committee held a hearing to address 
the issues raised by Carcieri. Cowlitz strongly believes that all 
federally recognized tribes should have equal access to the intended 
benefits of the Indian Reorganization Act (IRA), and that those 
benefits are crucial to ensuring that tribes have adequate trust lands 
on which to provide housing, education, health care, cultural and 
natural resource protection, economic development and governmental 
services to their members. But we are concerned about certain remarks 
made by some witnesses during the hearing suggesting changes that would 
effectively take the decision making out of the hands of the federal 
government and allow local governments to veto future trust 
acquisitions.
    The IRA was enacted to effect a sea change in federal Indian 
policy, explicitly rejecting long-standing federal policies which had 
undermined the political and even physical existence of tribal nations. 
In particular, the IRA was meant to address the staggering loss of 
tribal land occasioned by passage of the General Allotment Act in 1887, 
which resulted in more than 90 million acres of tribal land passing out 
of trust status. The IRA provides a legal framework to support tribal 
governments and tribal economic development, and the most important 
component of that framework is the administrative mechanism to assist 
in the reacquisition of land for Indians. Any Carcieri fix must be 
viewed against this backdrop, and should not unduly or unfairly 
restrict the ability of Indian tribes to acquire trust lands.
    Section 20 of the Indian Gaming Regulatory Act (IGRA) and the 
Department of the Interior's implementing regulations already include 
appropriate and extremely rigorous requirements that must be met before 
gaming can occur on Indian lands acquired in trust after October 17, 
1988. Despite the concerns expressed by some witnesses during the 
hearing, approvals to acquire off-reservation lands for gaming are 
extremely rare. Indeed, the Cowlitz Tribe has been in the fee-to-trust 
process for more than eleven years now, and yet we still are landless. 
The notion that the Department is some kind of rubber stamp for new 
tribal casinos is almost comical to any tribe that actually has tried 
to go through the process. We do not believe that new restrictions are 
necessary, and we are concerned about incorporating new gaming-related 
requirements into a legislative vehicle aimed at addressing Carcieri.
    The testimony from Senator Feinstein as well as Ms. Diane Dillon 
for the California State Association of Counties advocated for a 
greater role for local governments in the fee-to-trust process, 
focusing on gaming acquisitions. \1\ She stated, ``I strongly believe 
that local governments must have the ability to influence the terms and 
conditions of the development of new casinos, especially because many 
communities simply do not want new casinos in their backyard.'' Ms. 
Dillon complained of the uncertainty for California counties with 
respect to planning caused by the creation of new Indian lands. But the 
fee-to-trust process already provides local governments with ample 
opportunity to influence the terms and conditions of the Secretary's 
decision. 25 C.F.R. Part 151 specifically provides for State and local 
government input on jurisdictional, tax, and related issues like 
planning, and the NEPA process already requires analysis of land use 
issues, including potential impacts and mitigation of those impacts on 
local governments and services, and provides several opportunities for 
public hearing and comment. In addition, most proposed gaming-related 
trust land acquisitions already include agreements with local 
communities (or some other vehicle to address the concerns of local 
governments) in order to provide for the mitigation of impacts from 
proposed gaming projects. But as Ms. Dillon acknowledged in her 
testimony, some non-Indian communities/local governments will never 
consent to tribal land acquisition, regardless of the merits or purpose 
for the acquisition. To give those communities effective veto authority 
would be neither appropriate nor consistent with the purposes of the 
IRA.
---------------------------------------------------------------------------
    \1\ We note that Senator Feinstein's and Ms. Dillon's comments were 
focused entirely on Indian gaming rather than the fee-to-trust process. 
We must emphasize that these are two separate administrative processes, 
land acquisition being governed by the IRA and gaming eligibility by 
IGRA.
---------------------------------------------------------------------------
    During the hearing, it was suggested that local government 
participation in the process could be strengthened by including in a 
Carcieri fix some kind of requirement that a tribe enter into a 
``voluntary'' memoranda of understanding (``MOU'') with local 
communities affected by a proposed tribal land acquisition for off-
reservation gaming. Apart from the fact that it is unclear how a 
statutory requirement could impose a voluntary agreement, this type of 
requirement is troubling because it could allow non-Indian communities 
to exact a high price from a newly recognized or restored tribe (which 
has limited options because of existing regulatory historical and 
modern connections requirements) in exchange for allowing a gaming 
acquisition to proceed, or to delay the process indefinitely, or to 
simply refuse to negotiate a all. While the Cowlitz Tribe fully 
supports voluntary agreements with local communities, and like most 
tribes desires to forge positive, productive, mutually beneficial 
relationships with its neighbors, we are concerned that this type of 
provision is not appropriate to include in a Carcieri fix and would 
effectively hand over the Federal Government's decision-making 
authority to local governments. Or, as in the case of Cowlitz, where 
our MOU with Clark County was challenged and set aside under state law, 
a hostile third-party effectively could derail the fee-to-trust process 
by challenging the MOU. We believe that the existing rules already 
provide local communities with ample opportunity to participate in and 
comment on the impacts of proposed tribal gaming acquisitions, and 
require the Department to address issues raised by local communities. 
The law should not be changed to give non-Indian communities or 
interested third parties veto power over where (or even whether) newly 
recognized or restored tribes may acquire land in trust for gaming.
    The Cowlitz Tribe understands that enactment of clean Carcieri-fix 
legislation is a very significant challenge. Nevertheless, we add our 
voices to those of the Obama Administration, the National Congress of 
American Indians (NCAI), the United South and Eastern Tribes, and 
tribes throughout Indian Country in asking Congress to enact a fix that 
puts all federally recognized tribes on an equal playing field, and 
does so without imposing draconian new restrictions on fee-to-trust 
acquisitions. Chairwoman Cantwell and Vice Chairman Barrasso, and 
members of the Committee, we again appreciate your commitment to 
achieving an honorable Carcieri fix.
                                 ______
                                 
Prepared Statement of Hon. Craig Corn, Chairman, Menominee Indian Tribe


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                                 ______
                                 
            Prepared Statement of the Tohono O'odham Nation
    As Chairwoman Cantwell so eloquently said in her opening statement, 
the Supreme Court's 2009 decision in Carcieri v. Salazar has created 
two unequal classes of federally recognized tribes--tribes that are 
able to benefit from the Indian Reorganization Act (IRA) and tribes 
that are not. Since the IRA is in many ways the fundamental backbone of 
modern federal Indian law, this disparity has caused significant 
injustices. The Nation applauds the Committee's continuing effort to 
find a path forward to enact an honorable fix to the damage Carcieri 
has caused Indian Country.
    While the Nation was not directly affected by the Carcieri 
decision--as its status as a tribe ``under federal jurisdiction'' in 
1934 is beyond dispute--the Nation has consistently expressed its 
unequivocal support for federal legislation that would undo the very 
real damage that Carcieri has wreaked on so many federally recognized 
tribes. As one of the largest tribes in the United States, the Nation 
feels an obligation to speak out in support of tribes that have been 
less fortunate--tribes that were terminated, tribes that were or are 
landless, and tribes that, for other reasons, have suffered the 
devastating effects of having an inadequate homeland. The Nation well 
understands these deprivations, as nearly 10,000 acres of the Nation's 
own reservation land were taken by the United States in the mid-
twentieth century, and the tribal members residing on those lands were 
forced to crowd together on a small 40-acre parcel of land. We know 
what it is like to lose our traditional land, and we know how hard it 
is to try to acquire replacement land. For some tribes, the Carcieri 
decision has made acquiring new land impossible.
    The Nation understands that the Committee may eventually consider 
specific legislative language, and the Nation likely will submit more 
specific comments after that proposed language becomes available. In 
the meantime, the Nation would like to bring to the Committee's 
attention significant misstatements in written testimony submitted by a 
witness at the November 20, 2013, hearing that were directed at the 
Nation. In addition, the Nation feels compelled to express its concerns 
about several suggested new limitations on taking land in trust that 
were discussed by some witnesses at the November 20, 2013 hearing. The 
Nation will address each of these matters in turn.
A. The Nation's Proposed West Valley Resort
    In her written testimony, Senator Dianne Feinstein made the 
following statement:

         The City of Glendale, Arizona, is disputing the Tohono O'odham 
        (Toe-hoe-no OH-tham) Nation's proposal to open a casino and 
        resort in the city's urban sport and entertainment district, 
        which even by the tribe's own admission is at least 75 miles 
        from its reservation's border.

        Testimony of Senator Diane Feinstein, at 4.

    This statement, which was directed at the Tohono O'odham Nation's 
replacement lands acquisition for its West Valley Resort project near 
the cities of Glendale and Peoria in Maricopa County, Arizona, is 
incorrect in several key respects. First, the West Valley Resort enjoys 
widespread support from nearby communities. In fact, three neighboring 
communities, Peoria, Tolleson, and Surprise, have passed resolutions in 
support of the Nation's project. What is more, as has been widely 
reported, the City of Glendale has begun a productive dialogue with the 
Nation. \1\ Second, contrary to Senator Feinstein's statement, the 
Resort site is not ``at least 75 miles from [the Nation's] borders.'' 
In fact, as the Nation has repeatedly testified, the West Valley Resort 
property is only about 48 miles from the Nation's existing trust land 
at San Lucy Village, near Gila Bend, Arizona (where its land was 
flooded and destroyed) and is located in the same county (Maricopa) as 
this existing trust land. \2\
---------------------------------------------------------------------------
    \1\ Carolyn Dryer, Ed., Dialogue has begun; partnership appears on 
horizon, Glendale Star, September 15, 2013 (available at http://
www.glendalestar.com/opinion/editorials/article_4408fed6-11a6-11e3-
9130-001a4bcf887a.html)
    \2\ Although not pertinent under the Nation's land settlement, the 
West Valley Resort property is a readily commutable distance from Gila 
Bend. Indeed, ``almost twice as many workers leave the Gila Bend area 
to commute to jobs in the East Valley as stay to work in Gila Bend. 
East Valley consists of Scottsdale, Paradise Valley, Fountain Hills, 
Tempe, Mesa, Gilbert and Chandler.'' Creating New Avenues for Success: 
The West Valley Workforce and Labor Market Study, 2008, pp. 53-54 
(sponsored by WESTMARC, a coalition of fifteen West Valley 
communities). The East Valley cities to which the majority of Gila 
Bend's workers commute are significantly farther from Gila Bend than is 
the West Valley Resort property.
---------------------------------------------------------------------------
B. Other Limitations on the Fee-to-Trust Process Discussed at the 
        Hearing
1. The Proposed ``Aboriginal Ties'' Requirement Will Lead to Unjust and 
        Perverse 
        Results
    As a consequence of the Removal Era, culminating in the Indian 
Removal Act of 1830, many tribes ceded their aboriginal territories in 
the Eastern United States and were forcibly removed to areas west of 
the Mississippi River. Act of May 28, 1830, ch. 148, Stat. 411. Many of 
the tribal victims of the removal era were widely dispersed, and some 
have only recently achieved federal acknowledgment and/or obtained 
reservations. Similar displacement occurred in the Western United 
States as well, such that not all tribes today reside in their 
aboriginal territories. To graft an across-the-board aboriginal ties 
requirement onto the IRA's trust land acquisition authority would 
impose a great injustice for some tribes, and lead to absurd results 
for others, because in the modern era some tribes simply are not 
currently located within the confines of their aboriginal territories. 
Indeed, some tribes' aboriginal territories are not even located within 
the same states or the same regions of the country as where the tribes 
currently are located. \3\
---------------------------------------------------------------------------
    \3\ The reality is that, when Indian gaming comes into play, the 
Department of the Interior's own regulations generally already require 
the Secretary to consider a tribe's historical (as opposed to 
aboriginal) connections to the land at issue before she will decide 
whether to acquire land for gaming for newly recognized or newly 
restored tribes. The only instances in which historical ties are not 
required are when lands are acquired as part of a ``two-part 
determination'' (in which cases the Governor of the State has absolute 
veto authority) and when lands are acquired in the settlement of a land 
claim (in which cases the Department follows Congress' specific 
direction, since land claim settlements generally are implemented 
through acts of Congress).
---------------------------------------------------------------------------
    Depending on how it might be formulated, an aboriginal ties 
requirement also could have an unintentional adverse impact on the 
Nation. In the Nation's land claim settlement, Congress explicitly 
identified the three counties within which the Nation would be entitled 
to acquire new land to replace lands destroyed by the Army Corps of 
Engineers (i.e., the same three counties in which the Nation already 
has other reservation lands). Imposition of an aboriginal ties 
requirement on the Nation's land claim settlement could significantly 
and inappropriately alter the settlement terms agreed to by the Nation 
and the United States nearly three decades ago.
2. Requiring MOUs with Local Counties Also May Lead to Unjust Results
    Another potential restriction on the fee-to-trust process discussed 
at the hearing would require tribes and neighboring non-Indian 
communities to enter into memoranda of understanding (MOUs) before the 
Secretary could acquire land in trust for tribes. Like many tribes, the 
Nation has always worked closely with its neighboring communities to 
deal with the kinds of issues that all governments regularly address, 
including water and power, transportation, and public safety, and we 
are proud of the many mutually beneficial agreements that we share with 
local non-Indian communities.
    For these issues to be addressed in a fair, equitable, and mutually 
agreeable manner, however, the Nation believes that discussions must 
take place in an environment of mutual respect and trust, not one of 
coercion. Further, the Nation is aware that, in some circumstances, a 
tribe may have very little latitude on where it can acquire lands. In 
our case, our Federal land claim settlement requires that we acquire 
our replacement land in one of three counties. If an MOU requirement 
was grafted onto our land claim settlement, then local governments 
could unilaterally block implementation of our Federal land claim 
settlement, if they were of a mind to do so, completely undermining the 
long-recognized Federal trust obligation owed to the Nation as an 
Indian tribe.
    Accordingly, the Nation opposes a condition on the IRA that would 
unfairly interfere in intergovernmental discussions and the Federal 
trust obligation by requiring that a tribe enter into agreements with 
surrounding communities before the acquisition of lands in trust for a 
tribe.
    Finally, the Nation urges the Committee to consider grandfathering 
existing fee-to-trust decisions that have not yet been fully 
implemented to protect tribes, like the Nation, that have spent many 
years and expended significant resources to navigate the existing 
process. Failure to include such a grandfathering provision will 
effectively punish tribes that have been playing by the rules in good 
faith.
Conclusion
    The Nation supports the Committee's efforts to ensure that the IRA 
applies to all tribes. However, the concerns raised by some witnesses 
relate only to gaming issues and do not belong in legislation designed 
to address the injustices of the Carcieri decision. The Nation urges 
that some of the trust acquisition restrictions suggested by some 
witnesses are inconsistent with the primary purposes of the 
Reorganization Act and, if adopted, may result in unforeseen and unjust 
consequences.
    We hope these comments are helpful to the Committee, and the Nation 
is happy to answer any questions the Committee might have.
                                 ______
                                 
 Prepared Statement of Matthew D. Chase, Executive Director, National 
                     Association of Counties (NACo)
    Dear Chairwoman Cantwell and Vice Chairman Barrasso:
    On behalf of the nation's 3,069 counties, we thank you for the 
opportunity to submit the following statement to the Senate Committee 
on Indian Affairs as you consider such a critical issue for county and 
tribal governments. We submit for the Committee's consideration our 
statement that provides the National Association of Counties' (NACo) 
relevant policy, determined and approved by our full membership, as it 
pertains to county and tribal government relationships and to the 
Supreme Court decision in Carcieri v. Salazar, 555 U.S. 379 (2009).
    NACo is the only national organization that represents county 
governments in the United States. Founded in 1935, NACo advances issues 
with a unified voice before the Federal Government, improves the 
public's understanding of county government, assists counties in 
finding and sharing innovative solutions through education and research 
and provides value-added services to save counties and taxpayers money. 
As part of its work, NACo is engaged in pursuing federal laws and 
regulations that provide the framework for constructive government-to-
government relationships between counties and tribes.
County and Tribal Government Relations
    The policy of NACo is to support government-to-government relations 
that recognize the role and unique interests of tribes, states, 
counties and other local governments to protect all members of their 
communities and to provide governmental services and infrastructure 
beneficial to all--Indian and non-Indian alike.
    NACo recognizes and respects the tribal right of self-governance to 
provide for tribal members and to preserve traditional tribal culture 
and heritage. In similar fashion, NACo recognizes and promotes self-
governance by counties to provide for the health, safety and general 
welfare of all members of their communities. To that end, NACo supports 
active participation by counties on issues and activities that have an 
impact on counties.
    NACo supports tribes and local governments reaching enforceable 
agreements concerning the mitigation of impacts of gaming or other 
development. NACo opposes any federal limitation on the ability of 
tribes, states, counties and other local governments to reach mutually 
acceptable and enforceable agreements or on the ability of these 
governments to fulfill the purposes for which they have self-
governance.
    Nothing in federal law should interfere with the provision of 
public health, safety, welfare, or environmental services by local 
government. It is the policy of NACo to support legislation and 
regulation that preserves--and does not impair--the ability of counties 
to provide these services to the community.
Lands in Trust
    NACo supports the improvement of the process by which lands are 
considered to be taken into trust, such as revising the Indian 
Reorganization Act of 1934 (IRA) to require adequate advance notice of 
applications, actual meaningful consultation (including providing 
counties 120 days to respond to applications and requiring the 
Department of the Interior/Bureau of Indian Affairs to respond within 
90 days, in writing, to such comments explaining the rationale for 
acceptance or rejection of those comments) and (to the extent 
constitutionally permissible) the consent of the affected counties.
    NACo opposes administrative action or a legislative ``quick fix'' 
to overturn the United States Supreme Court decision in the case of 
Carcieri v. Salazar, which held that the Secretary of the U.S. 
Department of the Interior (DOI) lacks authority to take land into 
trust for tribes that were not ``under federal jurisdiction'' upon 
enactment of the IRA in 1934. NACo calls on Congress to address any 
Carcieri issues as part of a comprehensive examination and reform of 
the fee land into trust process.
    This reform is necessary as the current federal fee to trust 
process, as exercised under the IRA and as used under the ``restored 
lands'' exception to the Indian Gaming Regulatory Act (IGRA), is 
contrary to the original legislative intent; is without clear and 
enforceable standards; does not take into account county interests; 
and, at times, interferes with county ability to provide essential 
services to the community. NACo supports legislative changes to the 
trust process that also include full compensation to counties for lost 
tax revenue resulting from taking lands into federal jurisdiction.
    Once again, thank you for the opportunity to comment and provide 
NACo's policy.
                                 ______
                                 
            Joint Prepared Statement of Tribal Organizations


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                              Diane Dillon
    Question 1. Has CSAC taken a position on tribal sovereignty?
    Answer. CSAC's adopted policy affirms the association's recognition 
and respect for tribal self-governance to provide for its members and 
to preserve traditional Indian culture and heritage. CSAC's policy also 
states support for cooperative and respectful government-to-government 
relations that recognize the interdependent role of tribes, counties, 
and other local governments to be responsive to the needs and concerns 
of all members of their respective communities.
    As reiterated in past and recent congressional testimony, CSAC has 
great respect for the authority granted to all federally recognized 
Indian tribes. It is CSAC's intent to pursue policies that respect 
tribal authority, while at the same time protecting counties' 
legitimate interests, including the legal responsibility to provide for 
the health, safety, environment, infrastructure, and general welfare of 
all citizens.

    Question 2. Did counties have issues with the fee-to-trust process 
or take a formal position on the process prior to passage of the Indian 
Gaming Regulatory Act (IGRA)?
    Answer. Although CSAC did not have a formal position on the BIA's 
fee-to-trust process prior to the 1988 enactment of IGRA, many 
individual California counties were experiencing impacts in rural areas 
from Indian gaming establishments. These early establishments were 
places where Indian bingo was the primary commercial enterprise in 
support of tribal economic self-reliance. The impacts on local 
communities were not as significant in large part because the 
facilities where Indian bingo was played were modest in size and did 
not attract as many patrons as larger casinos that have proliferated 
today. Following the enactment of IGRA, the impacts to counties from 
Indian gaming enterprises increased with the advent of larger 
facilities. Even so, the impacts to local communities from these larger 
facilities were generally manageable, except in certain instances.
    Beginning with the 1999 signing of the State's Tribal Gaming 
Compacts, the ensuing rapid expansion of Indian gaming in California 
has had profound impacts beyond the boundaries of tribal lands. The 
majority California's counties now have a casino, a tribe petitioning 
for federal recognition, or are the site of a proposed casino plan. As 
the Committee is aware, many casino proposals relate to projects on 
land far from a tribe's ancestral territory.
    In response to the rise of significant off-reservation impacts 
resulting from tribal gaming establishments, CSAC adopted formal policy 
on Indian gaming in 2003. The association adopted subsequent policy 
revisions and updates in order to emphasize the need for counties and 
tribal governments to each carry out their governmental 
responsibilities in a manner that respects the governmental 
responsibilities of the other.
    Today, California has 111 federally recognized tribes, 59 of which 
operate 60 casinos. Moreover, there are currently 352 applications for 
federal recognition pending nationwide, with one quarter of those from 
the state of California. With a large number of tribes already engaged 
in gaming and with the possibility that a significant number of 
additional tribal groups could gain federal recognition, CSAC and 
California's counties continue to take an active interest in federal 
Indian affairs issues and policies.

    Question 3. Do California's counties have issues with the fee-to-
trust process that aren't related to gaming?
    Answer. Yes, California's counties have a number of concerns with 
the fee-to-trust process that are not related to tribal gaming. These 
concerns have become increasingly pressing, as California tribes have 
petitioned to have at least 9,938 acres of additional land taken into 
trust status for a variety of purposes since 2011 alone. As outlined in 
CSAC's congressional testimony, the association's fundamental concerns 
stem from the fact that there is a lack of clear and enforceable 
standards in the land-into-trust process. Congress has not set 
standards under which any delegated trust land authority would be 
applied by BIA. The relevant section of federal law, Section 5 of the 
Indian Reorganization Act, reads as follows: ``The Secretary of the 
Interior is hereby authorized in his discretion, to acquire [by various 
means] any interest in lands, water rights, or surface rights to lands, 
within or without reservations . . . for the purpose of providing land 
to Indians.'' 25 U.S.C.  465.
    The aforementioned general and undefined congressional guidance, as 
implemented by the Department of the Interior in its Part 151 
regulations, has resulted in a trust land process that fails to 
meaningfully include the legitimate interests of local government 
agencies. Therefore, the concerns of California's counties are given 
minimal consideration in the fee-to-trust process, despite the fact 
that counties must address the off-reservation impacts of projects on 
trust lands and any inconsistencies with surrounding land uses, as well 
as provide some local government services, including law enforcement in 
California, on trust lands.
    The lack of guidance has also led to procedural shortcomings in the 
fee-to-trust process. Local governments often do not receive timely 
notice when a trust land application is filed within their 
jurisdictions. In turn, BIA only invites comments from the affected 
state and the local governments with legal jurisdiction over the land 
and, from those parties, only on the narrow question of tax revenue 
loss and regulatory jurisdictional conflicts. As a result, trust 
acquisition requests are reviewed under a very one-sided and incomplete 
record that does not provide real consultation or an adequate 
representation of the consequences of the decision. Moreover, local 
governments are often forced to resort to Freedom of Information Act 
requests to ascertain if petitions for Indian land determinations have 
been filed in their jurisdictions.
    While CSAC remains particularly concerned that tribal gaming often 
leads to significant unmitigated impacts to the surrounding community, 
including environmental and economic impacts, other forms of tribal 
development also are a source of concern. For example, many tribal 
projects are often incompatible with local land-use plans and 
regulations (i.e. proposed tribal housing and associated infrastructure 
in areas that are zoned exclusively for agriculture). Moreover, 
economic development projects on trust lands that support existing 
Tribal gaming enterprises, for instance a golf course or music venue, 
can have off-reservation impacts similar to those of casinos. Unlike 
casino projects, which require negotiation of mitigation agreements 
with affected local governments under California's recent tribal-state 
gaming compacts, local governments have no ability to secure mitigation 
for the off-reservation impacts a project on trust lands may have on 
government services or the environment.
    It should also be noted that many non-gaming trust acquisitions, 
both large and small, can result in jurisdictional confusion with 
regard to law enforcement, social service delivery, and emergency 
services. In addition, the loss of local control to regulate land uses 
without appropriate mitigation can congest county and state roadways, 
impact water quality in waterways, reduce water supply to adjacent 
properties, degrade habitat, air quality and the environment, and 
create a public nuisance. These types of impacts are not simply limited 
to the development and operation of Indian casinos.

    Question 4. Have any California counties objected or sent remarks 
or testimony to the Department of the Interior (DOI) on a trust land 
application that was not related to gaming?
    Answer. Yes, a number of California counties have sent comment 
letters to DOI/BIA regarding proposed non-gaming trust land 
acquisitions. For example, Fresno County sent a letter to BIA in 2012 
regarding the Table Mountain Rancheria's application to have nine 
parcels of land taken into trust for non-gaming purposes. The County 
provided comments to the BIA in an effort to highlight a number of 
pertinent issues, including the expected loss of county property tax 
revenue and the continued provision of county services to the land.
    Yolo County submitted comments in response to the Environmental 
Assessment and subsequent Finding of No Significant Impacts for the 
proposed acquisition of approximately 853 acres of land for the Yocha 
Dehe Wintun Nation in 2011 and 2013, respectively. The County raised no 
objections to the Tribe's proposed development of approximately 100 
acres of the intended trust lands for housing, community facilities, 
infrastructure and cultural facilities. The Board of Supervisors was, 
however, concerned that there would be no mechanism for the County to 
provide meaningful input or secure mitigation measures for the off-
reservation impacts of any future projects on the remaining 753 acres, 
for which no planned development was described in the Tribe's 
application.
    Santa Barbara County recently sent correspondence to the BIA to 
register opposition to the Santa Ynez Band of Chumash Mission Indians' 
non-gaming fee-to-trust application. The parcel of land in question, 
which encompasses more than 1,400 acres, would be used for tribal 
housing and perhaps other non-gaming purposes, such as a major 
community center and an office complex. The County opposes the fee-to-
trust application on the grounds that the proposed project conflicts 
with the County's General Plan, the Santa Ynez Community Plan, and 
local land-use regulations.
    Additionally, if the land is taken into trust, Santa Barbara County 
would lose substantial tax revenue while at the same time experiencing 
an increased demand for services and infrastructure. In its 
correspondence to the BIA, the County notes that it is anticipated that 
the tribe may choose to change its intended uses on the site. Once the 
land is in trust, however, the County would have no regulatory 
authority in the approval process.
    On a related matter, CSAC would like to highlight the fact that 
there are a number of tribes both within and outside the state of 
California that have switched the stated or intended uses of trust 
land. According to BIA records, land was taken into trust for the Smith 
River Rancheria in Del Norte County for tribal housing in 1989, only to 
be converted to gaming use in 1996. \1\ In Butte County, a parcel of 
land was taken into trust for HUD tribal housing units and community 
uses in 1994; the land was converted to gaming in 1996. \2\ 
Incidentally, in both of the aforementioned cases, National Indian 
Gaming Commission officials were not aware of applicable IGRA 
exceptions or status.
---------------------------------------------------------------------------
    \1\ (U.S. Department of the Interior, Office of Inspector General. 
Final Evaluation Report on the Process Used to Assess Applications to 
Take Land into Trust for Gaming Purposes. Report Number: E-EV-BIA-0063-
2003 (2005).
    \2\ Id., pp. 18.
---------------------------------------------------------------------------
    Thank you again for your leadership on this issue and for your 
consideration of our views.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John Barrasso to 
                              Diane Dillon
    Question 1. What recommendations do you have for incentivizing 
local governments to enter into mitigation agreements?
    Answer. CSAC believes that a strong incentive already exists for 
local governments, as well as tribes, to reach judicially enforceable 
agreements. For starters, the process of negotiating an agreement or 
memorandum-of-understanding (MOU) brings both parties to the table and 
often lays the foundation for a more productive, beneficial, and long-
term government-to-government relationship. Moreover, a mitigation 
agreement provides the jurisdictional local government with certainty 
that the impacts of a particular development project will be adequately 
addressed.
    Unfortunately, the current fee-to-trust process--as authorized 
under the Indian Reorganization Act and governed by the Department of 
the Interior's Part 151 regulations--lacks adequate standards and does 
not provide any incentive for local governments or tribes to enter into 
mitigation agreements. The result is a trust land system that gives 
rise to mutual distrust and dissatisfaction.
    We believe that the federal legal framework must be modified to 
encourage both parties to reach mitigation agreements. This could be 
done, for example, by establishing a more streamlined fee-to-trust 
process for cases in which local agreements are in place. Pursuant to 
CSAC's trust reform proposal, this would be accomplished by exempting a 
tribe from the need to meet the statutory requirements of subsection 
(b) if the tribe and the jurisdictional local government(s) have 
entered into an MOU that address the impacts of the proposed trust 
acquisition.
    In the absence of a mitigation agreement, federal law should 
require the Secretary to ensure that the interests of the tribe and the 
jurisdictional local government are balanced in the fee-to-trust 
process. This should be done by requiring the Secretary to determine, 
after consulting with appropriate state and local officials, that the 
proposed land acquisition would not be detrimental to the surrounding 
community. Additionally, the Secretary should be required to determine 
that tribes have taken necessary steps to ensure that jurisdictional 
conflicts and impacts have been mitigated. Once these requirements have 
been satisfied, the Secretary would be authorized to approve the 
tribe's development.

    Question 2. What should be done if local governments refuse to 
enter mitigation agreements?
    Answer. CSAC does not believe that local governments--or tribes for 
that matter--should be compelled to enter into mitigation agreements. 
Indeed, we acknowledge that there will be cases in which neither party 
will ultimately want to negotiate an MOU no matter how much a potential 
new fee-to-trust process is able to ``incentivize'' intergovernmental 
cooperation.
    It is important to note that CSAC's reform proposal would not 
preclude a tribe from moving forward with a trust application if a 
local government refuses to enter into an agreement. In such cases, 
proposed development could move forward as long as other reasonable 
standards have been met.
    While a perfect fee-to-trust process may not be attainable, we 
remain steadfast in our belief that the best possible system is one 
that provides a framework for both tribes and local governments to work 
together.

    Question 3. Could you describe the importance of intergovernmental 
agreements between the tribes and the local governments?
    Answer. CSAC believes that intergovernmental agreements between 
tribes and local governments is essential when one government's 
development project will significantly impact the other. This cannot be 
understated given the history of conflict, mistrust, and gridlock that 
has characterized the current fee-to-trust process.
    For the reasons already stated herein, federal statutory law must 
provide a framework that encourages cooperation between neighboring 
governments.

    Question 4. How should economic self-sufficiency be determined?
    Answer. One of the principal goals of Federal Indian policy is to 
promote tribal economic development and self-sufficiency. Incidentally, 
the statutes and regulations governing tribes and tribal development do 
not define self sufficiency or provide further policy guidance relative 
to how such a standard is to be measured.
    In general, economists, think tanks, research centers, and private 
interest groups agree that economic self-sufficiency is achieved when 
an individual or family's basic needs--including food, housing, 
utilities, health care, transportation, taxes, dependent care, 
clothing, etc.--are consistently met with minimal or no outside 
financial assistance or subsidies. Expressed as a measurement of 
income, self-sufficiency is reached when an individual/family has an 
income of at least 200 percent of the federal poverty level, relative 
to household size.
    CSAC recognizes that the aforementioned measurement, although a 
widely used standard, may or may not be appropriate for determining 
whether a tribe and its members have attained economic self-
sufficiency. However, since promoting self sufficiency is one of the 
primary purposes of Federal Indian policy--and in consideration of the 
significant off-reservation impacts that result from the establishment 
of casinos and other tribal development projects--we believe that the 
term, in this context, should be defined in federal law. We therefore 
urge Congress to carefully consider this issue as part of a broader 
discussion on fee-to-trust reform, with a particular emphasis on the 
policy-related implications of potentially applying a different self-
sufficiency standard to different socio-economic groups.
    Thank you for your leadership on this issue and for your 
consideration of our views.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John Barrasso to 
                        Jacqueline Johnson-Pata
    The fee to trust process involves trust acquisitions of lands 
located both within an Indian reservation and outside the reservation 
boundaries. In particular, ``off-reservation'' trust acquisitions may 
result in a change of jurisdiction and impact the surrounding 
community.
    Question 1. Please describe some of the ways Indian tribes address 
jurisdictional issues and mitigate local community impacts for off-
reservation trust acquisitions?
    Answer. Thank you Senator Barrasso. First, it is important to note 
that the vast majority of tribal land acquisitions occur in very rural 
areas, including those that are off-reservation. These are mostly 
agricultural and forest lands that are adjacent or very near to 
existing reservations. Most land acquisitions have little impact 
outside of the tribe.
    Of course there are tribes located closer to populated areas, and 
in these cases there is generally a significant amount of cooperation 
already in place between the tribal and local government. Most common 
are public safety and mutual aid agreements. Services agreements and 
revenue sharing agreements are also common where services are jointly 
provided. Cooperative land use planning is frequent in populated areas. 
If new lands are placed into trust, they usually fall under an existing 
system of tribal and local government cooperation. For the most part, 
tribes and local governments find that these agreements work very well, 
services and jurisdiction are seamless, and are capable of providing a 
higher degree of public services because of the pooling of effort and 
resources.
    Although the clear trend is towards intergovernmental cooperation, 
of course there are places where relations are strained. Cooperation 
between tribal and local governments tends to improve when the tribe is 
a significant part of the local economy. Tribes and local communities 
have been living and working together for multiple generations, and 
will continue to do so. Congress should continue to fulfill its trust 
responsibilities to Indian people by restoring tribal lands and 
empowering tribes to make positive contributions to the local economy.
    Your written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' states that tribes would never accept a transfer of 
section 151 authority to state or county governments.

    Question 2. What kind of meaningful role can local and county 
governments have in the section 151 process without transferring 
authority to them?

    Question 2a. Do you believe that the local or county governments' 
support or opposition to the land into trust acquisition should be 
taken into consideration by the Secretary?
    Answer. I will answer these related questions together. Local and 
county governments currently play a vital role with their informed 
participation in the land to trust process, and this option to 
participate and provide comments is required under the federal 
regulations at 25 CFR 151. Local government concerns are a critical 
factor that the Secretary considers regularly. However, in most 
instances, local concerns are addressed in government-to-government 
discussions preceding the application to Interior.
    The Secretary of Interior is an independent decision maker, 
confirmed by the Senate, and is charged with making reasonable 
decisions and weighing the costs and benefits of any land acquisition. 
In practice, tribes don't waste time on unrealistic plans for 
discretionary land acquisitions that would transfer significant costs 
or raise legitimate concerns for the local community. The Secretary's 
independent and informed decisionmaking role is critical to ensuring 
that valid local government concerns are properly addressed.
    We want to again point out that most issues with county governments 
relate to off-reservation acquisitions in populated areas, and that the 
vast majority of acquisitions are much more rural in character. In 
populated areas it is common that the parties will negotiate conditions 
and agreements, facilitated by the Secretary's approval function.

    Question 3. Do you believe that tribes should be able to state on 
their application that the land is being taken into trust for one 
purpose, but then use the land for another purpose without further 
review by the Bureau of Indian Affairs?
    Answer. Existing law prevents tribes or anyone else from making 
false statements regarding land to trust applications. Interior's land 
acquisition regulations at Sec. 151.25 state that anyone who knowingly 
and willfully makes a false statement in connection with a trust title 
acquisition request may be subject to criminal prosecution under the 
False Statements Accountability Act of 1996, 18 U.S.C. 1001.
    That said, it is entirely possible and even likely that land use 
plans will change over periods of time, and this is true for every 
local government in the country. Twenty years ago very few would have 
predicted the use of land for cell phone towers, now they are 
ubiquitous across the landscape. Changing land use plans will often 
cause public debate, but change is inevitable. We do not believe that 
further federal review is appropriate or necessary for a change in land 
use plans.
    Instead, we should increase cooperation between local and tribal 
governments on land use planning. This is already common in developed 
areas, such as the Tulalip Reservation north of Seattle, where 
cooperative land use planning with Snohomish County has been a 
foundation for cooperation on economic development, public services, 
and natural resources protection. Land use planning is much less common 
in very rural areas, however, for both tribes and local governments.
    Land use planning is critical to economic development and improving 
living conditions for individuals and families in and around Indian 
Country. Tribal land use planning tends to be siloed on certain 
programmatic needs--for example transportation or housing. There is a 
great need for integrated planning across infrastructure needs, and 
NCAI strongly encourages Congress, as a part of its trust 
responsibility, to provide additional support for land use planning in 
Indian country.

    Question 4. Do you believe that tribes should be required to 
mitigate jurisdictional conflicts and effects as a condition for 
placing land into trust?
    Answer. No. As I noted above, there is a great deal more 
jurisdictional cooperation than conflict in Indian country, and land 
transfers tend to fall under existing jurisdictional arrangements that 
have been in place for decades. Of course there are places where 
cooperation is more difficult, but these are the exception rather than 
the rule.
    In addition, the current process requires the Interior Department 
to consider all concerns raised by local governments, and the 
Department's process and independent review heavily favors parties who 
work together to mitigate impacts.
    I should also mention that local communities near Indian 
reservations already benefit a great deal from federal spending on 
reservation, from programs such as Johnson O'Malley that provides funds 
to local schools near reservations, and also from federal Payments in 
Lieu of Taxes for communities near federal lands.
    We urge Congress to keep the context in mind. Restored lands were 
frequently stolen or unfairly taken from Indian tribes and now tribes 
must repurchase every square foot before it can be considered for a 
land to trust transfer. Tribes work very hard to provide services and 
cooperate with surrounding governments, and the results are impressive. 
The process should not be held hostage to a mitigation requirement that 
would be extraordinarily difficult for Interior to manage, would slow 
the process to a crawl, give even more leverage to local governments, 
and disadvantage Indian tribes who are the beneficiary of a federal 
trust responsibility.

    In her testimony before the Committee at the hearing on November 
20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Senator Feinstein proposed that land taken into trust 
for non-gaming purposes should be prohibited from being used as casino 
locations at future dates.

    Question 5. Do you agree with this proposal?
    Answer. This is already the law for off-reservation acquisitions. 
Section 20 of the Indian Gaming Regulatory Act prohibits gaming on off-
reservation Indian lands acquired in trust after 1988, with only three 
exceptions:

        1.)  Two Part Determinations--25 USC 2719(b)(1)(A) permits 
        gaming on lands acquired in trust after 1988 if the Secretary 
        of Interior ``determines that a gaming establishment on newly 
        acquired lands would be in the best interest of the Indian 
        tribe and its members, and would not be detrimental to the 
        surrounding community, but only if the Governor of the State in 
        which the gaming activity is to be conducted concurs in the 
        Secretary's determination. . .'' These acquisitions require 
        wide public engagement on the proposal, and the state's 
        Governor must concur.

        2.)  Settlement of Land Claims--25 USC 2719(b)(1)(B)(i) permits 
        gaming on lands acquired in trust after 1988 if the lands are 
        taken into trust as part of a settlement of a land claim. There 
        are several older settlement statutes that permit certain 
        tribes to select replacement lands in a defined geographic 
        area. These are existing settlements and generally the 
        Secretary lacks discretion in making these acquisitions under 
        federal law. Any acquisitions for gaming purposes require 
        notice to state and local government and public notice and 
        comment under 25 C.F.R. Part 151 and 292.

        3.)  Initial Reservation or Restored Lands. 25 USC 
        2719(b)(1)(B) permits gaming on lands acquired in trust after 
        1988 if the lands are taken into trust as part of ``(ii) the 
        initial reservation of an Indian tribe acknowledged by the 
        Secretary under the Federal acknowledgment process, or (iii) 
        the restoration of lands for an Indian tribe that is restored 
        to Federal recognition.'' These acquisitions only occur in a 
        public process where the purpose to acquire the land for gaming 
        purposes is widely shared with state and local governments, and 
        the Department of Interior seeks comment from interested 
        parties under 25 C.F.R. Part 151 and 292.

    In her testimony before the Committee at the hearing on November 
20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Senator Feinstein noted that casinos require local 
resources, including increased costs for police, fire, water, sewer, 
and transportation.
    Question 6. Do you believe tribes should be required to mitigate 
these costs?
    Answer. The Indian Gaming Regulatory Act requires tribes and states 
to negotiate compacts before the tribe can exercise Class III gaming. 
Compacts may include provisions related to the allocation of criminal 
and civil jurisdiction and the costs necessary for regulating such 
activities. Many state governments already receive revenue transfers 
from tribes for these purposes, and local governments are subdivisions 
of the states. For example, in Wisconsin the State provides for 
extensive transfers of gaming revenue funds for local police efforts in 
cooperation with tribal police. We do not believe it is necessary to 
provide additional authority to local governments as these issues can 
and have been resolved through state-tribal compact negotiations. Many 
tribes provide very substantial contributions to state and local 
government costs, and these are managed through intergovernmental 
negotiations.

    Question 6a. Please explain how tribes have addressed these costs.
    Answer. Most tribes are already providing support for the state 
budget and for local law enforcement and police departments through 
gaming compact negotiations.
    In addition, many tribes make tangible contributions to assist 
services in their local area--for example it is remarkable the number 
of press releases we see where a tribal government has made a 
contribution in the form of a new fire truck or a police cruiser. 
Indian tribes are a foundation for economic development in many local 
areas that is never going to be outsourced to a foreign country, and 
tribes make enormous contributions in their local communities. In many 
cases tribes are largest employers in the county and provide jobs and 
economic support to not only tribal members, but local communities as 
well.

    Question 7. Have there been any instances where disputes arose 
between tribes and local, county, or state governments regarding 
mitigating, paying for, or entering agreements to address these local 
impacts?
    Answer. Of course local debates arise from time to time about 
revenue and services--which are the primary topics of every government 
discussion. For example, until recently some of the tribes in New York 
were withholding payment until the terms of their compacts were 
fulfilled. But the State of New York and the tribes engaged in a series 
of far-reaching settlements that will benefit both the tribes and their 
neighbors. We urge Congress to continue to trust in the good will and 
track record of government-to-government negotiations. Cooperation 
between tribal and local governments tends to improve when the tribe is 
empowered, and is making positive contributions to the local economy 
and governmental services. Congress should continue to fulfill its 
trust responsibilities to Indian people, restore tribal lands, and 
empower tribes to make positive contributions to the local economy and 
governmental services.

    In her written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Ms. Diane Dillon recommended several changes to the 
land into trust process. One recommendation is that trust land requests 
cannot be approved when negative impacts to other parties outweigh the 
benefit to the tribe.
    Question 8. What do you think about balancing these impacts and 
benefits?
    Answer. As I mentioned above, the Secretary of Interior is a 
Senate-confirmed cabinet member who is charged with exercising 
discretion to make these judgments. Tribes work very hard to provide 
services and cooperate with surrounding governments, and the results 
are impressive. We do not believe it would be appropriate to create a 
mitigation requirement that would be extraordinarily difficult for 
Interior to quantify or apply, would slow the process to a crawl, give 
even more leverage to local governments, and disadvantage Indian tribes 
who are the beneficiary of a federal trust responsibility.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John Barrasso to 
                         Hon. Marshall Pierite
    In her written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Ms. Diane Dillon recommended several changes to the 
land into trust process. One recommendation is that trust land requests 
cannot be approved when negative impacts to other parties outweigh the 
benefit to the tribe.
    Question 1. What do you think about balancing these impacts and 
benefits?
    Answer. This question must be considered within the historical 
context of broken promises and illegal dispossession of tribes from 
their land. Although we should strive to find justice and balance, a 
part of the equation must include a recognition that tribes had their 
land stolen from them and now are forced to buy it back.

    Question 2. Could you describe some of the impacts that Carcieri 
has had on Indian tribes?
    Answer. Tribes are working every day to improve the welfare of 
their people through projects for community and economic development. 
The uncertainty over the status of their land has increased risk to 
potential investors which has led in many cases to an increase in the 
cost of capital for projects, and the inability to find capital for 
others. The Carcieri decision has stagnated job growth and diminished 
the chance for thousands of people to increase their standard of living 
and provide a more certain future for their children.

    Question 3. How important do you think it is for tribes to work 
with local governments when taking land into trust that is not 
contingent to an existing Indian reservation?
    Answer. Tribes work on a daily basis with their local non-Indian 
neighbors. While many people would like to spread fear in those places 
where tribes are seeking to develop new economic development 
facilities, the truth is that tribal enterprises are a positive force 
in local communities and in most cases a strong mutually beneficial 
relationship evolves. We encourage all tribes to seek strong 
partnerships with local governments, but we cannot agree that local 
governments should have a veto power over projects on tribal land--land 
that was in most cases stolen from the tribe to begin with.
                                 ______
                                 
*Response to the following written questions was not received before 
        the hearing's print deadline*

           Written Questions Submitted to Hon. Kevin Washburn
    The written testimony from Ms. Diane Dillon submitted for the 
Committee hearing on November 20, 2013, on ``Carcieri: Bringing 
Certainty to Trust Land Acquisitions,'' states that the acceptance rate 
for section 151 fee-to-trust applications from the Bureau of Indian 
Affairs (BIA) Pacific Regional Office was 100 percent from 2001 to 
2011.
    Question. How many section 151 applications were received, 
withdrawn, accepted, and denied in that Office in the past 10 years?

    Question. How many section 151 applications have been received, 
withdrawn, accepted, and denied in all BIA regions in the past 10 
years?

    Your written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' questions whether tribes should be asked at all what 
their purpose for taking land into trust is.
    Question. Do you question this provision as well for off-
reservation acquisitions?

    Question. How would local communities and governments provide 
meaningful comments on a tribal application when the purpose is 
unknown?

    In her written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Ms. Diane Dillon states that the state, county, and 
local governments are only afforded limited notice and consultation on 
pending applications.
    Question. Please describe in detail the process of notifying state, 
county, and local governments and of receiving comments from local 
governments and local communities (i.e., do you conduct town hall 
meetings or consultation, etc., if so, how are they conducted).

    Question. Please describe how the input of these governments and 
communities affects the decision on whether the land is taken into 
trust.

    Question. Do intergovernmental agreements help streamline the fee-
to-trust process?

    Question. Do you believe there is something that should be done to 
expedite land-into-trust applications that are accompanied by an 
intergovernmental agreement?

    According to data received from the Bureau of Indian Affairs (BIA) 
regarding land-into-trust acquisitions, there have been 18 applications 
for land into trust accepted over the last 4 years, for which the 
purpose of the acquisition is ``unidentified.'' The data received from 
the BIA also states that only 13 of the land-into-trust applications 
were for gaming.
    Question. How can the Secretary evaluate the application and 
conduct an environmental assessment or impact statement when no purpose 
is provided in the fee to trust application?

    Question. What kind of BIA oversight exists to ensure the current 
and future uses of the trust land are consistent with the purpose for 
which the land was taken into trust?

    Question. What happens if the purpose that the land was taken into 
trust for is not the purpose being carried out on the land?

    In her testimony before the Committee hearing on November 20, 2013, 
on ``Carcieri: Bringing Certainty to Trust Land Acquisitions,'' Senator 
Feinstein proposes that land taken into trust for non-gaming purposes 
should be prohibited from being used as casino locations at future 
dates.
    Question. Do you agree with this proposal?

    In her written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' Ms. Diane Dillon proposed that land be taken into trust 
on the condition that it is used for the intended purpose. She further 
proposes that if the purpose is changed, the land into trust 
application must be further reviewed.
    Question. Do you agree with this proposal?

    On November 13, 2013, the Administration published a final rule 
amending the land acquisition regulations in 25 CFR Part 151. Ms. Diane 
Dillon's written testimony submitted for the Committee hearing on 
November 20, 2013, on ``Carcieri: Bringing Certainty to Trust Land 
Acquisitions,'' states that this new rule will allow tribes to 
immediately begin development of the trust land and result in 
irreparable damage to local governments even if the local governments 
receive a favorable decision in court.
    Question. Could you describe how this rule mitigates the impacts of 
the Patchak decision?

    Question. How would the BIA manage or treat lands that had been 
taken into trust but, after the acquisition, a court holds that the 
acquisition was outside the scope of the Secretary's authority and that 
the acquisition was invalid?

    Question. How would this invalidation of a Secretarial acquisition 
affect the application of the final rule published on November 13, 2013 
to the acquisition or other trust land applications?

    Data received from the Bureau of Indian Affairs indicates that only 
13 applications for land-into-trust for gaming purposes have been 
approved in the past 4 years.
    Question. How many have been submitted in that timeframe?

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