    [Senate Hearing 113-509]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-509

                S. 1603, S. 1818, S. 2040, S. 2041, AND S. 2188

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

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 7, 2014

                                   __________

             Printed for the use of the Committee on Indian Affairs

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                          COMMITTEE ON INDIAN AFFAIRS

                         JON TESTER, Montana, Chairman
                     JOHN BARRASSO, Wyoming, Vice Chairman
    TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
    MARIA CANTWELL, Washington           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 May 7, 2014......................................     1
    Statement of Senator Barrasso....................................     2
    Statement of Senator Crapo.......................................     5
    Statement of Senator Moran.......................................     3
    Statement of Senator Tester......................................     1

                                   Witnesses

    Cladoosby, Hon. Brian, President, National Congress of American
      Indians........................................................    19
        Prepared statement...........................................    21
    Lowery, Hon. Elwood, Chairman, Pyramid Lake Paiute Tribe.........    50
        Prepared statement...........................................    52
    Small, Hon. Nathan, Chairman, Fort Hall Business Council,
      Shoshone-Bannock Tribes........................................    23
        Prepared statement...........................................    27
    Sprague, Hon. David ``D.K.'', Chairman, Match-E-Be-Nash-She-Wish
      Band of Pottawatomi Indians....................................    55
        Prepared statement...........................................    56
    Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S.
      Department of the Interior.....................................     7
        Prepared statement...........................................     8

                                    Appendix

    Cate, Matthew, Executive Director, California State Association
      of Counties, prepared statement................................    65
    Feinstein, Hon. Dianne, U.S. Senator from California, prepared
      statement......................................................    63
    Heller, Hon. Dean, U.S. Senator from Nevada, prepared statement..    63
    Letters submitted for the record submitted by:
        Cyndi Hillery................................................    71
        Dianne Jacob.................................................    77
        Cheryl Schmit................................................    72
    Reid, Hon. Harry, U.S. Senator from Nevada, prepared statement...    65
    Response to written questions submitted by Hon. Lisa Murkowski to
      Hon. Kevin Washburn............................................    79

                S. 1603, S. 1818, S. 2040, S. 2041, AND S. 2188

                                  ----------

                             WEDNESDAY, MAY 7, 2014

                                           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. Jon Tester,
    Chairman of the Committee, presiding.

                 OPENING STATEMENT OF HON. JON TESTER,
                       U.S. SENATOR FROM MONTANA

        The Chairman. Welcome, and the Committee will come to
    order.
        This afternoon the Committee is holding a legislative
    hearing on five bills affecting lands in Indian Country.
        Before I get started, I want to take a moment to recognize
    a tribal leader that we lost earlier this week, Billy Frank.
    Billy fought tirelessly on behalf of tribes to help protect and
    preserve fishing rights for tribes in the northwest and
    throughout Indian Country. His efforts led to a greater
    collaboration between tribes, State and the Federal Government.
    He was a true leader.
        It seems appropriate that while we are discussing land and
    water rights today, we acknowledge the legacy of such a great
    inspiration to so many folks throughout Indian Country.
        Turning to the business at hand, we are going to first
    discuss S. 2188, which would reaffirm the Secretary of
    Interior's authority to take land into trust for all federally-
    recognized tribes. This authority was first established in the
    Indian Reorganization Act of 1934 and was intended to reverse
    the impacts of the allotment era, which led to tribes losing
    nearly 80 percent of the lands promised to them through
    treaties, executive orders and Congressional acts.
        This authority was recently called into question when the
    Supreme Court issued its decision in Carcieri v. Salazar in
    2009. The Carcieri decision went against 75 years of
    administrative precedent and has created two classes of tribes.
    Since the decision came down, tribes, tribal organizations and
    other stakeholders from throughout Indian Country have asked
    this Committee to bring certainty and equality back to the land
    in trust process.
        The impacts of the Carcieri decision have resulted in lost
    economic opportunities, stalled tribal infrastructure projects,
    increased litigation and bureaucratic delays at the Department
    of Interior and disparate treatment of tribes.
        For all these reasons, I have introduced S. 2188 to ensure
    that all tribes are able to continue reacquiring their
    homelands and create economic development opportunities for
    their communities. Senator Moran has joined me and others are
    co-sponsoring this bill. And we will hear from our colleagues
    as Senator Moran has joined us today, and we welcome you,
    Senator Moran, we look forward to your comments in just a
    minute.
        This issue has remained a priority for Indian Country. And
    since this really is a non-partisan issue, I urge my colleagues
    on both sides of the aisle to finally fix the Supreme Court's
    mistake.

        In addition to the Carcieri bill, we are going to discuss
    S. 1603, the Gun Lake Trust Land Reaffirmation Act. The tribal
    lands involved in this bill are subject to another recent
    Supreme Court decision which created even greater uncertainty
    with regard to lands placed into trust by tribes.
        In Salazar v. Patchak, the Supreme Court held that land
    placed into trust by the Secretary of Interior can be
    challenged by an individual for up to six years after the land
    is placed into trust. This ruling would inhibit development of
    tribal lands for years after they are acquired.
        S. 1603 would ratify and confirm the Secretary's taking of
    land into trust for the Gun Lake Band in Wisconsin. The Gun
    Lake Band was recognized through the Department's Federal
    acknowledgment process just 16 years ago. The land in question
    is the only property the Band owns in trust and is used for
    economic development, which provides funds for the tribal
    government and social services for the community. Gun Lake
    Chairman D.K. Sprague will provide testimony on this bill and
    discuss its importance to the Band.
        We are also going to discuss S. 1818, the Pyramid Lake
    Paiute Tribe-Fish Springs Ranch Settlement Act. This act would
    ratify a settlement agreement between the tribe and Fish
    Springs regarding tribal water rights. Chairman Lowery of the
    Pyramid Lake Paiute Tribe will testify today on this bill.
        Finally, we are going to hear about two bills affecting the
    Shoshone Bannock Tribes of the Fort Hall Reservation in Idaho.
    Senator Crapo has introduce S. 2040 and S. 2041, both of which
    would resolve some of the land issues regarding Fort Hall
    Reservation. I will let Senator Crapo discuss those bills a bit
    more when he shows. And we will hear from Chairman Small of the
    Fort Hall Reservation as well.
        With that, I will turn it over to my ranking member and
    Vice Chair, Senator Barrasso.

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

        Senator Barrasso. Thank you very much, Mr. Chairman, for
    scheduling this legislative hearing today. I want to welcome my
    good friend, Senator Jerry Moran, to the hearing. I look
    forward to hearing from you, Senator Moran.
        We have several witnesses for today's hearing, so I will be
    brief. The Committee is considering several bills that deserve
    our careful consideration. Mr. Chairman, you introduced S. 2188
    to address the Secretary of Interior's authority to take land
    into trust for tribes. It is an issue that is going to require
    meaningful dialogue among many parties, Congress and the
    Administration. I want to thank you for your leadership, Mr.
    Chairman, on this complex matter. I also want to thank the
    witnesses for traveling here today and look forward to the
    testimony.
        The Chairman. Thank you, Senator Barrasso.
        We will now hear testimony from Senator Jerry Moran.
    Senator Moran has worked very hard on S. 2188. I very much
    appreciate the partnerships we have had on many issues, and
    this is right at the top of the list.
        I want to thank you for all you do, and thank you for
    taking time out of what I know is a busy schedule to come talk
    to us about this important issue. So with that, you may begin.

                    STATEMENT OF HON. JERRY MORAN,
                        U.S. SENATOR FROM KANSAS

        Senator Moran. Mr. Chairman, thank you very much.
        Before my colleague Senator Barrasso walked in, I finally,
    for the first time in my life, thought I might have your
    undivided attention.
        [Laughter.]
        Senator Moran. I appreciate the chance to be in front of
    you and in front of Dr. Barrasso. I come today in support of S.
    2188, that legislation you just described, both of you
    described, to fix the 2009 court decision, Carcieri v. Salazar.
        In my time in public service, I started as a state senator.
    The first assignment as a new member of the Kansas legislature,
    I happened to have a law degree, and I was the most junior
    member. That resulted in me becoming the chairman of the
    legislative committee on Indian gaming in our State. I spent
    the next year and a half or so in front of a Federal district
    judge negotiating Indian compacts, gaming compacts under IGRA.
        We have four native tribes in our State. While none of them
    were in my Congressional district as a House member, they all
    are certainly in Kansas. I indicated to myself that when I
    became a member of the United States Senate, I would take a
    broader issue and get involved in issues that affect tribes in
    my State, and ultimately tribes across our Country.
        So I am pleased to be able to be here and urge you and your
    colleagues to deal appropriately, quickly, thoughtfully with
    this issue, with the issues that arrive from Carcieri.
        When I meet with tribal leaders, the issue that comes up
    time and time again is this Supreme Court decision. It has
    become more evident to me that it is a greater and greater
    problem as a result of other court decisions subsequent to
    Carcieri. And it is one that I think is important for us to
    address.
        And I come here certainly as a member of the United States
    Senate, as a Kansan. But I come with a view that tribes have
    been burdened for a long time with the uncertainty over fee-to-
    trust claims, eroding tribal sovereignty, economic development.
    For five years, there have been two classes, as you described,
    of Native Americans, of tribes, those who were recognized prior
    to 1934, prior to the 1934 Indian Reorganization Act, and those
    who were recognized thereafter. This creates, in my view, an
    unnecessary and an irrational divide between, in a sense, the
    haves and the have-nots, the tribes that may put their land
    into trust and move forward with economic development plans and
    tribes who are left in limbo, wondering if land into trust
    applications will be successful, many times after devoting
    significant resources and I would significant limited resources
    for costly litigation, trying to accomplish the goal of being
    recognized.
        The narrow definition of a tribe strips a post-1934 tribe
    of its ability to regulate land for economic activity. It put
    post-1934 tribes at risk of losing legal protections under the
    Constitution and business practices. And it costs this Country,
    certainly Native Americans, jobs and resources.
        Additionally, the already backlogged fee to trust process
    becomes even more complicated with the ambiguities created by
    Carcieri. It requires the Department of Interior's finite
    resources and personnel to evaluate fee to trust claims and
    defend against lawsuits.
        The proposed legislation is simple. It reaffirms the
    authority of the Secretary of Interior to take land into trust
    and to return us to that pre-2009 status quo. In my view, our
    Nation's tribes are overwhelmingly supportive of a clean, so-
    called clean Carcieri fix. And it doesn't seem to matter about
    size or economic wealth of those tribes.
        In fact, I received a letter from one of my own tribes in
    Kansas, the Prairie Band of Potawatomi, in support of a clean
    fix. I was impressed by the fact that their support for this
    legislation is there despite the fact they indicate they will
    not be directly affected. They are directly affected by
    Carcieri.
        I also believe that this legislation is in line with
    conservative principles. I think Republicans have long held
    beliefs that the best way for individuals to succeed and to
    prosper, for communities to thrive and grow, is with less
    government intrusion. And Carcieri in my view complies with
    that kind of philosophy, that kind of thought. A Carcieri fix
    will help fulfill our obligations to Native Americans. It will
    encourage tribal sovereignty. It will foster economic
    opportunity and investment. And it eliminates uncertainty.
        Republicans, me being one of them, are often decrying the
    fact of the uncertainty that government puts in the place of
    people, businesses across the Country. And I think we can take
    a valuable step in reducing the uncertainty that this issue
    Carcieri and its consequences, the uncertainty it places upon
    tribes, tribal leaders and the individual members of those
    tribes who would benefit from economic growth and opportunity.
        It just seems to me that it is a common sense solution to a
    problem that was manufactured in 2009. In conversations with
    tribal leaders, they make clear to me that Native Americans
    want to achieve what I call the American dream. In my view,
    that is our most primary responsibility as citizens and us
    certainly as members of the United States Senate, is to make
    certain that every American has the opportunity to pursue the
    American dream. That certainly involves the ability to start a
    business, to create jobs, to provide a better future for our
    children and grandchildren. I encourage my colleague to support
    this legislation and help make that dream a reality for all
    Americans.
        Mr. Chairman, Ranking Member Barrasso, thank you for the
    honor that it is to be able to testify in front of your
    Committee.
        The Chairman. Thank you for being here. As I said earlier,
    thank you for your comments, we very much appreciate them.
        If this was an easy issue, it would have been fixed a long
    time ago. But I am confident that us working together, we are
    not going to get all the Ds, we are not going to get all the
    Rs, but us working together will get enough to get this thing
    across the finish line and add a little certainty, as you spoke
    of.
        So thank you, Senator Moran.
        Senator Moran. Thank you very much.
        Senator Crapo?

                     STATEMENT OF HON. MIKE CRAPO,
                        U.S. SENATOR FROM IDAHO

        Senator Crapo. Thank you, Mr. Chairman, not only for
    holding this hearing but for including two of my pieces of
    legislation in it. I deeply appreciate that. And I also want to
    thank and express my appreciation to Chairman Small for his
    willingness to join us at today's hearing.
        The Chairman and I have been working on this legislation
    for the past three Congresses now. We hope this is the last
    time that this Committee will need to hear from us on this
    issue.
        S. 2040, the Blackfoot River Lands Settlement Act, embodies
    the terms of a negotiated settlement between the Shoshone-
    Bannock Tribes' non-Indian litigants and the State of Idaho
    relating to the ownership of land and water rights. In an 1867
    executive order, President Andrew Johnson established the
    boundaries of the Fort Hall Indian Reservation for the
    Shoshone-Bannock Tribes in eastern Idaho, including the
    reservation's northern border tracing the then-location of the
    Blackfoot River.
        In 1964, the U.S. Army Corps of engineers, on behalf of the
    Blackfoot River Flood Control District Number 7, completed a
    flood control project that resulted in channel realignment of
    the Blackfoot River. The resulting property holdings that have
    come from that have tribal-owned lands north of the new river
    course and non-tribal lands south of the new river course,
    severing several contiguous land holdings and creating
    situations and creating ownership disputes.
        The BLM Cadastral surveys dating to 1999 show 44 tribal and
    non-Indian parcels are affected, covering 13.49 linear miles
    and approximately 68 acres, 37 acres to non-Indians and 31
    acres to tribal members. S. 2040 would extinguish all claims
    and all past, present and future, right, title and interest in
    and to tribal lands and the non-Indian land. Enactment of this
    settlement is in the benefit of all of the affected
    stakeholders as the tribe and the United States are expected to
    pursue trespass actions against non-Indian landowners and
    condemnation of their lands.
        Mr. Chairman, absent action on the legislation, an outcome
    no one wants, there are going to be contested legal
    proceedings. In order to move S. 2040 though the Committee and
    the full Senate, we removed the authorization for
    appropriations. All affected parties, including the tribes
    north bank non-Indian landowners and the Blackfoot River Flood
    Control District, have agreed to forego congressionally-
    directed compensation in lieu of advancing this bill.
        Instead, the bill would take the lands located on the north
    side of the Blackfoot River into trust. The negotiated
    settlement would then transfer the southern tribal land to the
    flood control district, which would in turn compensate the non-
    Indian landowners through the sale of those lands.
        As you can see, the tribes would no longer be compensated
    monetarily under S. 2040. But I am currently, Mr. Chairman,
    exploring several alternatives separate from this bill, to keep
    the tribes whole.
        Because we have removed the score, I expect Congress to act
    swiftly on the legislation now that is before us. Thank you,
    Mr. Chairman.
        Finally, just briefly, on the second piece of legislation,
    I am pleased that the Committee will also hear testimony
    regarding S. 2041, which would repeal an outdated and archaic
    Congressional authorization. On May 31, 1918, Congress
    authorized the U.S. Department of Interior to reserve a 120-
    acre tract of land within the Fort Hall Reservation for the
    establishment of a local town site. Although we aren't entirely
    sure on the Congressional intent, we think this was either to
    provide unneeded Federal oversight within the reservation or to
    help the tribes market their agriculture in a central location.
    Perhaps both.
        Regardless, this town site never came to fruition. In 1966,
    48 years later, the Interior Department restored four of the
    acres and the tribes are now seeking restitution of the
    remaining 111 acres.
        Bingham County, which currently owns this land, fully
    supports this bill. Bingham County and the tribes currently
    operate under a memorandum of agreement in which the county
    does not assess property taxes and defers to the tribes on
    regulatory authority and zoning issues occurring on the tract.
    In turn, the tribes provide all essential government services.
        Although this cooperative agreement works well, Bingham
    County would like to officially absolve itself from liability
    concerns stemming from its ownership, and the tribes would like
    to purchase the property at fair market value. It is my hope
    that this important legislation will be reported favorably out
    of Committee also during our next business meeting.
        And again, Mr. Chairman, I thank you for your action on
    these two important pieces of legislation to us.
        The Chairman. Thank you, Senator Crapo, and we appreciate
    your leadership on these issues, as I know they are critically
    important to you and to the Native Americans you represent in
    the United States Senate, and quite frankly, to the non-
    Natives. So thank you.
        Kevin, you will be up to bat shortly. It is good to see you
    again this week. It has become a weekly thing. We appreciate
    your coming in and enlightening us on issues of importance, in
    this case the five bills that are on the docket today. Kevin
    Washburn, who literally needs no introduction to this Committee
    at this point in time but maybe to some folks that are in the
    crowd. Kevin is the Assistant Secretary for Indian Affairs at
    the Department of the Interior.
        I would like to remind our witnesses today, and Kevin, you
    know the rules, five minutes. Your entire testimony will be a
    part of the record. But we want to thank you for your time to
    be here today. We appreciate and value your input, and you may
    begin.

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

        Mr. Washburn. Thank you, Chairman, thank you, Vice Chairman
    and Senator Crapo. Thanks for having me here again. It is
    always a pleasure to come.
        I will move quickly the five bills we have to testify on.
    Because I have written statements on each of them.
        First, Carcieri. Senator Moran could not have stated it
    better. Home ownership, having a home is the American dream.
    Frankly, the Carcieri decision sort of got in the way of that
    dream for a lot of tribes. And we need to solve that. We have
    numerous challenges now to our land into trust applications. We
    think this is the most important thing we can do, is help
    tribes restore their homelands. So we strongly urge you to fix
    that.
        And I don't think I need to say a whole lot more about
    that. We have been pretty consistent and our testimony is
    strong.
        The Gun Lake Bill, S. 1603, we support that bill. The Gun
    Lake Tribe, like other tribes, needs to have a homeland. And
    this would be the tribe's homeland. They don't currently have
    land into trust, and they were affected and they are litigating
    for their lives, their homes, in the Patchak case. We have done
    what we can to try to help them with our Patchak patch, and to
    help all tribes, that we created last fall. But there is more
    to be done. We support S. 1603, and we also support the
    Carcieri fix, because it would help all tribes in this
    situation.
        Moving on to S. 1818, we support Chairman Lowery and his
    attempt to get this issue resolved. We have no objection to
    this bill. We have not been involved in these negotiations. But
    this bill seems to be cost-free to the United States. And it
    appears to resolve some important claims. We congratulate the
    Pyramid Lake Tribe for exercising self-determination in this
    way, by moving forward. We weren't particularly involved in
    this, the United States was not. But the tribe has exercised
    self-determination in seeking to resolve issues itself. So we
    congratulate them on that and are fully supportive of their
    efforts. We have no objection to this bill.
        Last, let me take up the two Shoshone-Bannock bills. I know
    Chairman Nathan Small will testify, so I won't need to take a
    whole lot of time on this. We support the aims of S. 2041. We
    have a little interest in more clarity, because we would have
    to implement this bill. So we would like to have a little more
    clarity, as we have explained further in our written testimony.
    But we certainly support its aims and we are grateful to
    Senator Crapo for this bill.
        We also would state support for the Blackfoot River Land
    Exchange Act. This is a bill we have looked at before in a
    different form. We congratulate the tribe and Senator Crapo for
    improving the bill since we saw it last and given the changes
    that have been made, we have no further objection. Indeed, we
    now support this bill. So thanks for changing it in a way that
    we can support it. We are very grateful for that.
        I don't need to take much more time, Chairman. I would say
    that we are a button-wearing culture in my tribe, and I have my
    Fix Carcieri Now button on. It is a little bit of a stunt, but
    I figure if President Cladoosby can wear that basket on his
    head, I can wear a button on my jacket.
        [Laughter.]
        Mr. Washburn. Thank you, Chairman.
        [The prepared statement of Mr. Washburn follows:]

    Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian
                    Affairs, U.S. Department of the Interior
                                    S. 1603
    Introduction
        Chairman Tester, Vice-Chairman Barrasso, and Members of the
    Committee, my name is Kevin Washburn and I am the Assistant Secretary
    for Indian Affairs at the Department of the Interior (Department).
    Thank you for the opportunity to testify on S. 1603, the Gun Lake Trust
    Land Reaffirmation Act, a bill to reaffirm that certain land has been
    taken into trust for the benefit of the Match-E-Be-Nash-She-Wish Band
    of Pottawatomi Indians (Tribe). The Department supports S. 1603, which
    applies to the only parcel of land held in trust for the Tribe. The
    Department supports legislative solutions that would provide such
    certainty to all federally recognized tribes and future acquisitions by
    the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians in light of
    the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
    decision.
        As this Committee, and Congress, is aware, in June of 2011 the
    Supreme Court issued its decision in Match-E-Be-Nash-She-Wish Band of
    Pottawatomi Indians v. Patchak. \1\ The Supreme Court held in that case
    that the decisions of the Secretary of the Interior to acquire land in
    trust under the Indian Reorganization Act could be challenged on the
    ground that the United States lacked authority to take land into trust
    even if the land at issue was already held in trust by the United
    States. This decision was inconsistent with the widely-held
    understanding that once land was held in trust by the United States for
    the benefit of a tribe, the Quiet Title Act (QTA) prevented a litigant
    from seeking to divest the United States of such trust title. \2\ The
    Court held that the Secretary's decisions were subject to review under
    the Administrative Procedure Act even if the land was held in trust and
    expanded the scope of prudential standing under the Indian
    Reorganization Act to include private citizens who oppose the trust
    acquisition.
    ---------------------------------------------------------------------------
        \1\ 132 S. Ct. 2199 (2012).
        \2\ See, e.g., Metro. Water Dist. of S. Cal. v. United States, 830
    F.2d 139 (9th Cir. 1987) (Indian lands exception to Quiet Title Act's
    waiver of sovereign immunity operated to bar municipality's claim
    challenging increase of tribal reservation and related water rights);
    Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir.
    2004) (challenge to Secretary's land into trust decision barred by
    Indian lands exception to Quiet Title Act's waiver of sovereign
    immunity); Florida Dep't of Bus. Regulation v. Dep't of Interior, 768
    F.2d 1248 (11th Cir. 1985) (same).
    ---------------------------------------------------------------------------
    Background
        On April 18, 2005, the Department issued its decision to acquire
    approximately 147 acres of land in trust for the Tribe for gaming
    purposes. The Citizens' group Michigan Gambling Opposition (``MichGo'')
    immediately challenged the decision in the United States District Court
    for the District of Columbia under the Indian Gaming Regulatory Act and
    National Environmental Policy Act (``NEPA''), as well as on the basis
    that the Indian Reorganization Act was unconstitutional. The district
    court rejected MichGo's claims, the District of Columbia Circuit Court
    of Appeals affirmed, and, in January 2009, the United States Supreme
    Court denied certiorari review. The Secretary then acquired the land
    into trust on January 30, 2009. Shortly thereafter in February 2009,
    the Supreme Court issued its decision in Carcieri v. Salazar. \3\
    ---------------------------------------------------------------------------
        \3\ 555 U.S. 379 (2009).
    ---------------------------------------------------------------------------
        While the MichGo lawsuit was on appeal, David Patchak filed suit in
    district court to also challenge the Secretary's decision, on the
    ground that the Secretary is without authority to acquire land in trust
    for the Band because the Band was not a federally recognized tribe when
    the IRA was enacted in 1934. The district court did not reach the
    merits of Patchak's claim, instead holding that Patchak lacked
    prudential standing to challenge the Department's authority under the
    Indian Reorganization Act. The D.C. Circuit reversed. Ultimately, on
    June 18, 2012, in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
    v. Patchak, \4\ the Supreme Court held that Patchak had prudential
    standing to challenge the acquisition, and that the Quiet Title Act is
    not a bar to Administrative Procedure Act challenges to the Secretary's
    decision to acquire land in trust after the United States acquires
    title to the property unless the aggrieved party asserts an ownership
    interest in the land as the basis for the challenge.
    ---------------------------------------------------------------------------
        \4\ 132 S. Ct. 2199 (2012).
    ---------------------------------------------------------------------------
        Until Patchak was decided, prevailing Federal court decisions held
    that the QTA precluded judicial review of trust acquisitions after the
    United States acquired title to the subject property. The effect of the
    Patchak decision is that plaintiffs may seek to reverse trust
    acquisitions many years after the fact and divest the United States of
    its title to the property.
    Consequence of the Patchak Decision
        The Patchak 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. The Patchak decision imposes additional burdens
    and uncertainty on the Department's long-standing approach to trust
    acquisitions and the Court's decision may ultimately destabilize tribal
    economies and their surrounding communities. The Patchak decision casts
    a cloud of uncertainty on lands acquired in trust under the Indian
    Reorganization Act, and ultimately inhibits and discourages the
    productive use of tribal trust land itself.
        Economic development, and the resulting job opportunities, that a
    tribe could pursue may well be lost or indefinitely stalled out of
    concern that an individual will challenge the trust acquisition up to
    six years after that decision is made. \5\ The Department has worked to
    provide more clarity to everyone by amending its land acquisition rules
    to provide for greater notice of land-into-trust decisions and clarify
    the mechanisms for judicial review, depending on whether the land is
    taken into trust by the Assistant Secretary for Indian Affairs, or by
    an official of the Bureau of Indian Affairs. Without legislation to
    address Patchak, the Supreme Court's new reading of the Quiet Title Act
    and the Administrative Procedure Act will frustrate the lives of
    homeowners and small business owners on Indian reservations throughout
    the United States, and undermine the efforts of the United States
    government in promoting growing communities and economies in Indian
    country.
    ---------------------------------------------------------------------------
        \5\ 28 U.S.C.  2401(a) provides that ``every civil action
    commenced against the United States shall be barred unless the
    complaint is filed within six years after the right of action first
    accrues.''
    ---------------------------------------------------------------------------
    The Patchak Decision Encourages Litigation to Undermine Settled
            Expectations
        In the Patchak decision, the Supreme Court held that a litigant may
    file suit challenging the Secretary's authority to acquire land in
    trust for a tribe under the Administrative Procedure Act, even after
    the land is held in trust. The Court reached this decision,
    notwithstanding the widely-held view that Congress had prohibited these
    types of lawsuits through the Quiet Title Act, which states:

             (a) The United States may be named as a party defendant in a
            civil action under this section to adjudicate a disputed title
            to real property in which the United States claims an interest,
            other than a security interest or water rights. This section
            does not apply to trust or restricted Indian lands. . .

            28 U.S.C.  2409a (emphasis added).

        As a result of the Court's reading of this provision, lawsuits
    could potentially reverse trust acquisitions many years after the fact,
    and divest the United States of its title to the property.
        The majority in Patchak failed to consider--or even recognize--the
    extreme result that its opinion made possible. Divesting the United
    States of trust title not only frustrates tribal economic development
    efforts on the land at issue; more critically, it creates the specter
    of uncertainty as to the applicable criminal and civil jurisdiction on
    the land and the operation of tribal and federal programs there.
        Before the Patchak decision, the Secretary's decision to place a
    parcel of land into trust could be challenged only prior to the
    finalization of the trust acquisition. The Department had adopted
    provisions in its regulations governing the trust acquisition process
    which ensured that interested parties had an opportunity to seek
    judicial review. It was the Department's general practice to wait to
    complete a trust acquisition until the resolution of all legal
    challenges brought in compliance with the process contemplated by the
    Department's regulations. This allowed all interested parties,
    including those who wished to challenge a particular acquisition, to
    move forward with a sense of certainty and finality once a trust
    acquisition was completed.
        Certainty of title is important. It provides tribes, the United
    States and state and local governments with the clarity needed to carry
    out each sovereign's respective obligations, such as law enforcement.
    Moreover, such certainty is pivotal to a tribe's ability to provide
    essential government services to its citizens, such as housing,
    education, health care, to foster business relationships, to attract
    investors, and to promote tribal economies.
        Once a trust acquisition is finalized and title transferred in the
    name of the United States, tribes and the United States should be able
    to depend on the status of the land and the scope of the authority over
    the land. Tribes must have confidence that their land cannot be
    forcibly taken out of trust once the government has made a final
    decision.
    Conclusion
        The Secretary's authority to acquire lands in trust for all Indian
    tribes, and certainty concerning the status of and jurisdiction over
    Indian lands after such acquisitions into trust, touch the core of the
    federal trust responsibility. The power to acquire lands in trust, and
    certainty that such land remain in trust, is an essential tool for the
    United States to effectuate its longstanding policy of fostering tribal
    self-determination. A system in which some federally recognized tribes
    cannot enjoy the same rights and privileges available to other
    federally recognized tribes is unacceptable. The Department supports S.
    1603. In addition, this Administration supports legislative solutions
    that make clear the Secretary's authority to fulfill her obligations
    under the Indian Reorganization Act for all federally recognized
    tribes.

                                    S. 1818
        Chairman Tester, Vice Chair Barrasso, and Members of the Committee,
    my name is Kevin Washburn and I am the Assistant Secretary for Indian
    Affairs at the Department of the Interior (Department). Thank you for
    the opportunity to present testimony for the Department on S. 1818, the
    Pyramid Lake Paiute Tribe--Fish Springs Ranch Settlement Act, which
    would authorize and ratify a settlement agreement negotiated by the
    Pyramid Lake Paiute Tribe (Tribe) and Fish Springs Ranch LLC (Fish
    Springs), resolve litigation brought by the Tribe against the Bureau of
    Land Management (BLM), and relieve the United States of any potential
    liability related to the settlement. The Department does not object to
    S. 1818.
    Background
        In 2006, the Tribe filed a lawsuit in the federal District Court
    challenging a Bureau of Land Management (BLM) decision to grant to Fish
    Springs a right-of-way across federal land for the construction of a
    groundwater transmission pipeline. In March 2007, the District Court
    granted the Tribe's motion for a preliminary injunction and enjoined
    construction related to the pipeline. At this time, the Tribe and Fish
    Springs began settlement discussions.
        In May 2007, the Tribe and Fish Springs entered into a settlement
    agreement (Original Agreement). Under the Original Agreement, in
    consideration of $3.6 million, the transfer of over 6,200 acres of
    land, and other benefits provided by Fish Springs, the Tribe petitioned
    the District Court to dissolve the preliminary injunction and stay
    proceedings in the case against BLM. This allowed Fish Springs to
    construct the pipeline and begin pumping groundwater according to terms
    agreed upon by the Tribe and Fish Springs.
        In 2013, the Tribe and Fish Springs entered into a Supplement to
    the Original Agreement (Supplemental Agreement) whereby Fish Springs
    and the Tribe agreed to seek legislation to settle all claims, if any,
    of the Tribe and the United States on behalf of the Tribe and its
    members for impacts or injuries to existing and claimed tribal water
    rights and injuries to tribal trust resources related to groundwater
    pumping by Fish Springs. This includes final resolution of the Tribe's
    lawsuit against BLM. Upon enactment of this legislation, Fish Springs
    will provide an additional $3.6 million, plus accrued interest, to the
    Tribe.
    S. 1818
        Section 3 of S. 1818 would authorize and ratify the Supplemental
    Agreement entered into by the Tribe and Fish Springs.
        Section 4 of S. 1818 includes waivers and releases of claims by the
    Tribe against both Fish Springs and the United States. S. 1818 would
    authorize the Tribe to waive claims against Fish Springs and to
    subordinate its existing and claimed water rights to the Fish Springs
    project. The Tribe would also waive claims against the United States,
    including claims related to: BLM's approval of the Fish Springs
    project; injuries to the Tribe's trust and reserved resources related
    to the project; and the negotiation of the Original Agreement, the
    Supplemental Agreement, and the implementing legislation. Rather than
    requiring the Department to sign waivers of claims, S. 1818 would
    extinguish any claims that the United States could bring on behalf of
    the Tribe and its members to the same extent that those claims are
    waived by the Tribe.
        S. 1818 would ratify an agreement negotiated by the Tribe and Fish
    Springs. In addition, it would resolve litigation against the BLM and
    relieve United States of any potential liability related to the Fish
    Springs project, the Original Agreement, the Supplemental Agreement,
    and the implementing legislation. S. 1818 would provide these benefits
    without any appropriation.
        The Original Agreement and the Supplemental Agreement reflect a
    creative and cooperative approach by the Tribe and Fish Springs to
    resolve a dispute regarding Fish Springs' use of groundwater and the
    potential effect to the Tribe's interests. These agreements were
    negotiated without the involvement of the Department.
        Therefore, the Department does not object to S. 1818.

                                    S. 2040
        Chairman Tester, 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 testify on S. 2040, the Blackfoot River Land
    Exchange Act of 2014, a bill to exchange trust and fee land to resolve
    land disputes created by the realignment of the Blackfoot River along
    the boundary of the Fort Hall Indian Reservation.
        The Department supports S. 2040.
    Background
        In 1867, the Fort Hall Indian Reservation was created by Executive
    Order for various Bands of the Shoshone and Bannock Indians. Pursuant
    to the Executive Order, the Blackfoot River, as it existed in its
    natural state, formed the northern boundary of the Reservation. In the
    1960's, the United States Anny Corps of Engineers (Army Corps)
    completed a flood control project along the Blackfoot River. The
    project consisted of constructing levees, replacing irrigation
    diversion structures, replacing bridges and channel realignment.
        While the flood control project did not change the original
    boundaries of the Reservation, it realigned portions of the Blackfoot
    River. Thus, after the Anny Corps completed the project, individually-
    Indian owned and Indian lands (approximately 37.04 acres) ended up on
    the north side of the realigned River, and non-Indian owned lands
    (approximately 31.01 acres) ended up on the south side of the realigned
    River. Over the years, these parcels of land have remained idle because
    the landowners could not gain access to the parcels of land without
    trespassing or seeking rights-of-way across the lands of other owners.
        In the late 1980's, the Snake River Basin Adjudication (SRBA) began
    to decree water rights on all streams and rivers within the Snake River
    basin in Idaho, which includes the Blackfoot River basin. During SRBA,
    several non-Indian landowners, whose lands were affected by the
    realignment of Blackfoot River, claimed as their water rights' place of
    use lands on the Fort Hall Indian Reservation.
        The Shoshone-Bannock Tribes (Tribes) filed objections to these
    water right claims. The United States did not file objections on behalf
    of the Tribes, but has been closely working with the Tribes and
    monitoring these and related water right claims in the SRBA. Thus,
    resolution of the land ownership issues along the realigned portions of
    the Blackfoot River could resolve related water rights claim in the
    SRBA.
    S. 2040
        The primary features of S. 2040 are to:

       authorize the United States to take certain non-Indian lands
            into trust on behalf of the Shoshone-Bannock Tribes in Idaho;

       authorize the United States to convey certain Indian lands
            into fee lands;

       extinguish certain claims that potentially could be asserted
            by the Shoshone-Bannock Tribes against the United States;

        The Department supports the exchange of these lands because this
    exchange will enable the general stream adjudication of the Snake River
    to be concluded without interfering with the water rights claims of
    either party. The Department reviewed similar legislation in 2010 and
    that legislation had several provisions that the Administration could
    not support. The Department congratulates the Shoshone-Bannock Tribes
    and the parties on improving this legislation, and thanks Senator Crapo
    and Senator Risch for working with to remove those provisions that the
    Administration could not support.
        Thank you for the opportunity to present the Department's views on
    S. 2040.

                                    S. 2041
        Chairman Tester, 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 testify on S. 2041, the May 31, 1918 Act
    Repeal Act, a bill to repeal the Act of May 31, 1918. The Department
    does not have a position on S. 2041.
    Background
        In 1867, the Fort Hall Indian Reservation was created by Executive
    Order for various Bands of the Shoshone and Bannock Indians (Tribe). On
    May 31, 1918, Congress passed a bill to authorize the establishment of
    a town site on the Fort Hall Indian Reservation in Idaho. The Act of
    1918 authorized the Secretary of the Interior to set aside and reserve
    for town-site purposes a tract of land within the Fort Hall Indian
    Reservation. The Act of 1918 also authorized the Secretary of the
    Interior to set apart and reserve for school, park, and other public
    purposes not more than ten acres in such town site on the condition
    that Indian children shall be permitted to attend the public schools of
    such town under the same conditions as white children.
        The Act of 1918 further authorized the Secretary of the Interior to
    appraise and dispose of the lots within such town site and provided
    that any expenses in connection with the survey, appraisement, and
    should be reimbursed from the sales of town lots, and the net proceeds
    should be placed in the Treasury of the United States to the credit of
    the Tribe and would be subject to appropriation by Congress for the
    Tribe's benefit. Finally, the Act of 1918 provided that any lands
    disposed of under the Act of 1918 would be subject to all the laws of
    the United States and prohibited the introduction of intoxicants into
    the Indian country until otherwise provided by Congress.
        The Bureau of Indian Affairs' Northwest Regional office is working
    with the Tribe to get an accurate determination of the number of acres
    that are included in the townsite area and to determine the actual
    ownership of the lots in the townsite. Currently the BIA's Northwest
    Regional office is in receipt of fee-to-trust applications from the
    Tribe and one fee-to-trust application from a member of the Tribe for
    lands located within the township.
        The Department is aware that the Tribe acquired ownership of the
    Fort Hall Water and Sewer District in 2000 and the Tribe has extended
    and improved this system several times over the past 14 years. The Fort
    Hall Water and Sewer District was operated by a group of citizens that
    resided within the townsite, but were unable to continue to operate
    this system financially. The waterlines, pump stations, and lifts,
    along with their main water structure are part of the structures that
    are owned by the Tribe. There are a few lots that were originally part
    of the school reserve and remain reserved for that purpose.
    S. 2041
        The primary features of S. 2041 are to:

       repeal the Act of May 31, 1918 (which authorized the
            Secretary of the Interior to set aside and reserve a tract of
            land within the Fort Hall Indian Reservation, Idaho, for town-
            site purposes),

       gives the Shoshone-Bannock Tribes of the Fort Hall Indian
            Reservation the exclusive right of first refusal to purchase at
            fair market value any land set aside or apart under the Act of
            1918 and such lands are offered for sale,

       directs the Secretary of the Interior to place lands in
            trust for the Tribe or a member of the Tribe where the lands
            subject to the Act of 1918, were (1) acquired before enactment
            of S. 2041, and (2) are acquired on or after the enactment of
            S. 2041 that is set aside or apart under the Act of 1918.

        The Department supports the aims of S. 2041. The Department would
    like to work with the Tribe and the sponsors of the legislation to gain
    more background information on the status of the lands covered by the
    Act of May 31, 1918, and obtain current ownership information of the
    subject lands by the Tribe and members of the Tribe. For clarity, the
    Department prefers such legislation include the legal descriptions of
    the affected land. This insures that the Department understands the
    will of Congress and can execute the law effectively.
        Thank you for the opportunity to testify on S. 2041.

                                    S. 2188

            ``But there's more we can do to return more control to your
            communities. . . .
            It's why we'll keep pushing Congress to pass the Carcieri fix,
            so that more tribal nations can put their land into federal
            trust.''
            --President Barack Obama, Nov. 2013.

    I. Introduction
        Chairman Tester, Vice Chairman Barrasso, and Members of the
    Committee, my name is Kevin Washburn and I am the Assistant Secretary
    for Indian Affairs at the Department of the Interior. Thank you for the
    opportunity to present the views of the Department of the Interior on
    S. 2188, a bill ``to amend the Act of June 18, 1934, to reaffirm the
    authority of the Secretary of the Interior to take land into trust for
    Indian tribes.''
        Since 2009, the Obama Administration has consistently expressed
    strong support for a legislative solution to the Carcieri decision.
    Since FY 2012, the President has repeatedly included language to
    address the Carcieri decision in the Budget, reflecting this
    Administration's position for a legislative solution to resolve this
    issue. Secretary Sally Jewell has reaffirmed the need for a legislative
    solution, stating ``[t]he Carcieri decision represents a step back
    toward misguided policies of a century ago and is wholly inconsistent
    with the United States' long-standing policy of self-governance and
    self-determination.'' S. 2188 is consistent with the President's Budget
    and I am here today to express the Administration's strong support for
    S. 2188.
        In a time of limited resources, the Carcieri decision exacerbates
    the challenges we are tackling in Indian country. Tribal dollars that
    had been used to protect children and elders, provide housing and
    water, or protect tribal cultural sites are instead expended to jump
    through hoops created by Carcieri. These judicially created hoops pull
    the Department's resources away from some of the fundamental priorities
    of this Administration and this Committee--education, social services,
    energy and economic development. S. 2188 alleviates these costs without
    any increase in the federal budget and restores the regular order of
    decision making that existed for decades before the Carcieri decision.
        As I testified last year, we characterize homeownership as the
    American dream and the fee-to-trust process is about ensuring that
    tribes have homelands. S. 2188 ensures that no tribe is denied that
    dream because of Carcieri. This Administration has worked hard to
    ensure that tribes have homelands for their people. Since 2009, the
    Department has acted on over 1,500 applications and accepted
    approximately 248,000 acres in trust for tribes. The vast majority of
    these acquisitions were for agricultural, governmental, housing and
    economic development purposes--only 7were for gaming. S. 2188 will
    clarify the Department's authority to ensure that all tribes have
    homelands for their people, thereby eliminating the costs imposed by
    Carcieri for both tribes and the public.
        Since the Carcieri decision, the Department's leadership has worked
    with this Committee, other Senators and Representatives, their
    respective staffs, and tribal leaders from across the United States to
    address the Carcieri decision. In 2009 and 2011, the Department
    testified in support of legislation similar to S. 2188. The Department
    incorporates that previous testimony here. S. 2188 will prevent costly
    litigation and lengthy delays for both the Department and the tribes to
    which the United States owes a trust responsibility.
    II. Background Regarding the Cause and Outcome of Carcieri
        No tribe has felt the impact of the Carcieri decision more directly
    than the one at the center of the case, the Narragansett Tribe. Before
    discussing the consequences of the Carcieri decision on Indian country
    as a whole, it is important to remember lands at issue in that case and
    the impact of the decision on the Narragansett Tribe.
        In 1991, the Tribe's housing authority purchased, in fee simple,
    approximately 31 acres of land across the street from 1800 acres of
    lands held in trust for the Tribe. In 1992, the Tribe's housing
    authority transferred the 31 acres to the Tribe with a deed restriction
    requiring the land be used for tribal housing. That same year, the
    Tribe's housing authority began construction of an elderly housing
    project on the parcel. The Tribe did not acquire a building permit from
    the town or obtain the State's approval for individual sewage disposal
    systems before beginning construction because the Tribe believed those
    permits were not necessary on tribally owned land. A dispute erupted
    with respect to permits the State and town argued that the Tribe was
    required to obtain. The Tribe sought to remedy the dispute over those
    civil regulatory matters, by filing an application with the Department
    to have the 31 acres taken into trust. After several federal lawsuits
    over disagreements regarding the applicability of certain local laws,
    the Tribe amended its 1996 fee-to-trust application and the BIA's
    Eastern Regional Director agreed to acquire the land in trust for the
    Tribe in 1997. The State appealed the BIA's decision to the Interior
    Board of Indian Appeals, beginning the litigation that would go all the
    way to the Supreme Court where it resulted in the 2009 Carcieri
    decision.
        I recently visited the Narragansett Tribe's reservation in Rhode
    Island, where Chief Sachem Matthew Thomas and Medicine Man John Brown
    gave me a tour of the Tribe's longhouse, their church and other
    important lands held by the Tribe. Among other places, Chief Sachem
    Thomas brought me to the tract of land at issue in the Carcieri
    litigation. There I saw boarded-up vacant homes that the Tribe intended
    to house their elders. Although construction was complete on the homes
    in the early 1990's, the homes lacked sewer and other infrastructure.
        Without the necessary infrastructure, the Chief Sachem told me that
    these homes have been vacant since construction was completed
    approximately twenty years ago. He also stated that all but two of the
    elders who were to live in these particular homes have passed away. The
    Department of Interior's 1998 fee-to-trust acquisition decision of this
    land, for these homes, was the basis for more than a decade of
    litigation which led to the Carcieri decision and its drastic
    ramifications.
        The Narragansett Tribe's experience makes clear the importance of
    S. 2188. It illustrates the importance of tribes being able to
    literally provide homes to their citizens. It illustrates how Carcieri
    can stifle self-determination and self-governance--keystone federal
    policies embedded in the Indian Reorganization Act. The Tribe's
    experience illustrates the real life social and economic impacts of the
    uncertainty caused by the protracted litigation. Finally, it shows the
    administrative burdens placed on the Department and the resources
    expended to defend trust acquisitions, in this case for over a decade.
    S. 2188 fully addresses these impacts.
    III. Consequences of the Carcieri Decision
    A. The Carcieri Decision is Contrary to Longstanding Congressional
            Policy
        As noted above, in Carcieri, the Supreme Court was faced with the
    question of whether the Department could acquire land in trust on
    behalf of the Narragansett Tribe of Rhode Island for a housing project
    under section 5 of the Indian Reorganization Act. The Court's majority
    noted that section 5 permits the Secretary to acquire land in trust for
    federally recognized tribes that were ``under federal jurisdiction'' in
    1934. It then determined that the Secretary was precluded from taking
    land into trust for the Narragansett Tribe, who had stipulated that it
    was not ``under federal jurisdiction'' in 1934.
        The decision upset the settled expectations of both the Department
    and Indian country, and led to confusion about the scope of the
    Secretary's authority to acquire land in trust for all federally
    recognized tribes--including those tribes that were federally
    recognized or restored after the enactment of the Indian Reorganization
    Act. As many tribal leaders have noted, the Carcieri decision is
    contrary to existing congressional policy, and has the potential to
    subject federally recognized tribes to unequal treatment under federal
    law.
        In 1994 Congress was concerned about disparate treatment of Indian
    tribes and passed an amendment of the Indian Reorganization Act to
    emphasize its existing policy, and to ensure a principle of
    administrative equality and non-discrimination. The amendment provided:

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

             (g) Privileges and immunities of Indian tribes; existing
            regulations
            Any regulation or administrative decision or determination of a
            department or agency of the United States that is in existence
            or effect on May 31, 1994, and that classifies, enhances, or
            diminishes the privileges and immunities available to a
            federally recognized Indian tribe relative to the privileges
            and immunities available to other federally recognized tribes
            by virtue of their status as Indian tribes shall have no force
            or effect.

        25 U.S.C.  476(f), (g). S. 2188 would effectively reaffirm
    Congress's longstanding principle of treating all federally recognized
    tribes equally without regard to whether they were ``under Federal
    jurisdiction'' on June 18, 1934.
    B. The Carcieri Decision has led to a More Burdensome and Uncertain
            Fee-to-Trust Process
        Since the Carcieri decision, the Department must examine whether
    each tribe seeking to have land acquired in trust under the Indian
    Reorganization Act was ``under federal jurisdiction'' in 1934. This
    analysis is done on a tribe-by-tribe basis, even for those tribes whose
    jurisdictional status is unquestioned. This analysis may be time-
    consuming and costly for tribes and for the Department. It may require
    extensive legal and historical research and analysis and has engendered
    new litigation about tribal status and Secretarial authority. Overall,
    it has made the Department's consideration of fee-to-trust applications
    more complex.
        To help address this issue, the Department's Solicitor recently
    issued an M-Opinion interpreting the meaning of ``under federal
    jurisdiction.'' The Solicitor concluded that the Department may take
    land into trust under the first definition of ``Indian'' in the IRA for
    a federally recognized Indian tribe that can demonstrate: (1) in or
    before 1934, the tribe had some course of dealings with the federal
    government reflecting that there were federal obligations to or
    authority over the tribe; and (2) that the tribe remained under the
    authority or responsibility of the federal government in 1934. The M-
    Opinion formally institutionalizes and is consistent with the analysis
    the Solicitor's Office has been using since Carcieri was decided.
        Yet the issuance of the M-Opinion does not obviate the need for S.
    2188. Instead, it further demonstrates the importance of S. 2188, as
    tribes and the Department must expend considerable time and resources
    collecting and analyzing historical evidence to support an ``under
    federal jurisdiction'' analysis. And even once that work is completed,
    the Department faces extensive litigation challenging its ``under
    federal jurisdiction'' analyses and fee-to-trust acquisitions. Such
    extensive litigation causes lengthy periods of uncertainty for the
    tribes and poses barriers to tribal development or use of lands that
    are the subject of a lawsuit. Without enactment of S. 2188, both the
    Department and Indian tribes will continue to face this burdensome
    process.
    IV. S. 2188
        S. 2188 would help achieve the goals of the Indian Reorganization
    Act and tribal self-determination by clarifying that the Department's
    authority under the Act applies to all tribes, whether recognized in
    1934 or after, unless there is tribe-specific legislation that
    precludes such a result. The bills would reestablish regular order in
    the United States' ability to secure a land base for all federally
    recognized tribes. The language in S. 2188 is identical to language in
    the President's FY 2015 budget proposal for a Carcieri fix.
        S. 2188 includes language that expressly ratifies actions taken by
    the Secretary of the Interior under the authority of the Indian
    Reorganization Act to the extent that such actions are based on whether
    the Indian tribe was under federal jurisdiction on June 18, 1934. In
    addition, S. 2188 provides that any references to the Act of June 18,
    1934 contained in any other Federal law is to be considered to be a
    reference to the Indian Reorganization Act as amended by the
    legislation. The Department believes both the ratification and
    reference provisions would be helpful in avoiding further litigation.
        The Department has been consistent in expressing its support for
    clean and simple legislation like S. 2188 to reaffirm the Secretary's
    trust acquisition authority under the Indian Reorganization Act, in
    accord with the common understanding of this authority that existed in
    the decades preceding the Carcieri decision. We have also been
    consistent in our support of the policy established by Congress in 1994
    amendments to the Indian Reorganization Act, which ensures that we do
    not create separate classes of federally recognized tribes.
    V. Conclusion
        The Carcieri decision, and the Secretary's authority to acquire
    lands in trust for all Indian tribes, touches the heart of the federal
    trust responsibility. Without a clear reaffirmation of the Secretary's
    trust acquisition authority, a number of tribes will be delayed in
    their efforts to restore their homelands: Lands that will be used for
    cultural purposes, housing, education, health care and economic
    development.
        As sponsor of the Indian Reorganization Act, then Congressman
    Howard, stated: ``[w]hether or not the original area of the Indian
    lands was excessive, the land was theirs, under titles guaranteed by
    treaties and law; and when the Government of the United States set up a
    land policy which, in effect, became a forum of legalized
    misappropriations of the Indian estate, the Government became morally
    responsible for the damage that has resulted to the Indians from its
    faithless guardianship.''
        The power to acquire lands in trust is an important tool for the
    United States to effectuate its longstanding policy of fostering tribal
    self-determination. Congress has worked to foster self-determination
    for all tribes, and did not intend to limit this essential tool to only
    one class of tribes. S. 2188 would clarify Congress's policy and the
    Administration's intended goal of tribal self-determination and allow
    all tribes to avail themselves of the Secretary's trust acquisition
    authority. S. 2188 will help the United States meet is obligation as
    described by United States Supreme Court Justice Black's dissent
    Federal Power Commission v. Tuscarora Indian Nation. ``Great nations,
    like great men, should keep their word.''
        This concludes my statement. I would be happy to answer questions
    the Committee may have.

        The Chairman. Thank you, Kevin. I would just state before I
    get into my questions that I would hope that on 2041 you could
    work with Senator Crapo and his staff and the Indian Affairs
    staff to get clarified what needs to be clarified on this bill,
    so that we can hopefully move it along with some of the other
    bills we have been hearing since I took over as chairman.
        Your testimony states that the Administration supports the
    Patchak fix for all tribes. The provisions found in S. 1603 and
    S. 2188, the Carcieri bill, would ratify and confirm only past
    Secretarial trust acquisitions. Does the Department believe
    this language is sufficient or do we need additional language
    to fix the Patchak decision? If so, if we need additional
    legislation, does the Department have any specific proposals?
        Mr. Washburn. Thank you, Chairman. I would encourage you, I
    do think we need a Patchak fix. Once the Department has gone
    through its extensive administrative process to take land into
    trust, we believe that we should be immune from further
    litigation and tribes should be immune from further litigation
    involving those land into trust applications.
        I would not ask you to clutter up the Carcieri fix with an
    additional Patchak fix. I think that is just a little too
    complicated. So I would encourage you to consider a Patchak
    fix, restore our sovereign immunity for actions of land into
    trust. But I would not ask you to put another difficult issue
    in the Carcieri bill.
        The Chairman. I appreciate that. The Committee has heard
    several times now that the increase in litigation regarding the
    secretarial trust acquisition following Carcieri and the
    Patchak decisions. Last November you mentioned there were about
    15 trust land acquisitions being challenged either in Federal
    court or the Interior Board of Indian Appeals. Is there an
    update on those numbers? Is there any idea how much those
    challenges are costing the Department and the tribes?
        Mr. Washburn. As of this time, the numbers are roughly
    about the same, as of April. I checked again a couple of weeks
    ago and I believe we provided your staff with some information
    about that.
        But the work goes on. Because every time we take land into
    trust, at least every time we do it for a different tribe, we
    have to go through the whole analysis again to determine
    whether they meet a Carcieri standard, in essence. And that has
    been a heck of a lot of work. And we have lots of Carcieri
    analyses pending. It is holding up land into trust for some
    tribes.
        Once we have done it once for a tribe, then we are usually
    able to proceed taking additional land into trust for that
    tribe. However, because of Patchak, they can be sued. So it is
    not done when we do an opinion. We may have to face that again
    in court. So it creates a real question of uncertainty for the
    tribes.
        The Chairman. Have you been able to put any real numbers to
    what this is costing the Department or the tribes or both?
        Mr. Washburn. We have. It is, well, we have testified on
    other occasions, and I don't have those at the top of my head,
    but a significant amount of staff time is used. And so some of
    that stuff is sort of hidden, because you don't think about the
    cost to staff. But it has taken an enormous amount of staff
    time and it is economic development in Indian Country that is
    not happening. So there are some Federal costs, but there is
    also some lost opportunity cost at the tribal level. And those
    roll up to be quite significant in total.
        The Chairman. Okay, thank you. One of the proposals we have
    heard regarding the land into trust process is to streamline
    the process for on-reservation applications. Can you say how
    many on-reservation applications are pending with the BIA and
    how long those applications usually take?
        Mr. Washburn. They vary dramatically depending upon their
    complexity. Since the Obama Administration has been in office,
    there have been about 1,650 applications that have been
    accepted for land into trust. It is quite an extensive process.
    The first thing we do on taking land into trust is notify the
    State and local governments to see what they think about it.
    That is the first and foremost thing that we do to get their
    input. And once we have done that, then we put the tribe
    through a litany of factors which might also occasionally
    include NEPA, the environmental impact analysis, if they are
    planning to do development on that land.
        So it is often a long and arduous process. In fact, it is
    always a long and arduous process. But whether it takes just
    several months or several years depends on the complexity of
    the application. And again, Carcieri just increases that
    problem.
        The Chairman. So is there any way to expedite that process,
    or are we just where we are and that is the way it is?
        Mr. Washburn. Well, let me just say this. I think that it
    is probably fair to say that the vast majority of our land into
    trust applications are on reservation. The thing that people
    get wound up about is the gaming decisions. And there is a tiny
    handful of those. We are holding all land into trust hostage
    because some people are upset for just a handful of these small
    gaming applications.
        So we can certain, it is frustrating that the gaming issues
    have come to dominate this discussion to such a great degree.
        The Chairman. So can you give us any insight as to who is
    holding them hostage? You said they are being held hostage.
        Mr. Washburn. Well, Congress. I would say Congress. Until
    this body fixes Carcieri, we will continue to deal with this
    issue to some degree.
        The Chairman. All right. Senator Barrasso?
        Senator Barrasso. Thank you, Mr. Chairman.
        Kevin, following up along those lines, the Administration
    has supported restoring the Secretary's authority to take land
    into trust for tribes. So we received testimony at our November
    20, 2013 hearing that processes for trust acquisition and for
    off-reservation gaming, because you raised the issue of gaming,
    also need to be addressed as part of this decision. Do you
    think that no legislative fix for Secretarial authority is a
    better alternative than a fix that includes these other
    processes?
        Mr. Washburn. Well, let me say this. Those processes have
    just changed a little bit. Our Patchak patch regulation gave
    greater process to counties and local governments that are
    interested in these issues and ensured better notice to them to
    ensure that if they have a problem, they can raise that issue.
        So we have just, my sense is we have just made some
    improvements that address those kinds of things. People haven't
    gotten to see the benefit of that because the regulation was
    just enacted, just recently. So I would say that we have
    addressed a lot of the things that were raised by Senator
    Feinstein and Commissioner Dillon in that previous testimony.
        Senator Barrasso. Coming up next we have some testimony
    from Brian Cladoosby. When we review the written testimony, he
    mentions how some tribal trust acquisitions may actually
    infringe on the reservations of other tribes. So I don't know
    how much these newer regulations may impact that. These
    interests have caused some division among tribes in finding a
    Carcieri fix. Do you have some recommendations to reconcile
    these multiple tribal interests that are maybe overlapping
    here?
        Mr. Washburn. Vice Chairman, these are the hardest things
    we do. These are among our very hardest decisions we make. And
    that is why my job, it is one of the reasons my job is
    difficult, because we have to weigh these competing interests
    and then try to come up with a decision. And it is why we don't
    do, again, especially it is the gaming ones that seem to bother
    people. Those are the ones that bother people most.
        And so we don't do it very often when it overlaps on
    another tribe's reservation. It is very rare, and darned near
    never. I think of the 1,650 land into trust applications that
    we have had since the beginning of the Obama Administration, of
    the ones that have been approved, well, there are only seven of
    those, seven out of 1,650 that were taken into trust
    successfully for gaming. There are a few others that are not in
    trust yet because they have been challenged.
        But it is just exceedingly rare. It is a vast exception and
    again, it feels like, because people are upset about some very
    specific cases that all the rest of this is being held up.
        The Chairman. Senator Crapo?
        Senator Crapo. Thank you, Mr. Chairman.
        Mr. Washburn, first, I appreciate the Department's support
    of Senate Bill 2040. I would just remind and highlight to you
    that as we move forward, in order to deal with our scoring
    issues here in Congress, the tribes have agreed to relinquish
    the compensation that was due them. As I indicated to the
    Chairman, I am going go be looking in some other venue for an
    opportunity to correct that aspect of it, and may look to you
    for some guidance and assistance as we move in that direction.
        With regard to Senate Bill 2041, you indicated support for
    the aims of it but concern that there may be some detail work
    that still needs to be done. Could you clarify a little bit for
    me exactly what we need to try to clarify there?
        Mr. Washburn. Sure, Senator. One of the things is, we need
    to take some action with regard to land if this bill passes.
    And we don't have legal descriptions in the bill for the land
    and that sort of thing. Just really technical things that make
    it easier to do our job. We don't want something that is going
    to create litigation down the road. We would rather have
    clarity when you act, so that we know exactly what is expected
    of us, and so that we can do that forthwith, rather than having
    to wrangle through those issues later in ways that might make
    people upset.
        Senator Crapo. Thank you. I am sure that we will be eagerly
    in touch with you to find out exactly what clarity we need to
    include and to make those necessary corrections. I appreciate
    your working with us on that. Thank you.
        The Chairman. Thank you, Senator Crapo. Once again, Kevin,
    thank you very much for taking time out and being with us
    today. We appreciate your straightforward testimony. Thank you.
        Mr. Washburn. Thank you, Chairman.
        The Chairman. We will now ask the second panel to come to
    the table. First, we are going to hear from the Honorable Brian
    Cladoosby, President of the National Congress of American
    Indians. We are then going to hear from Chairman Nathan Small,
    from the Shoshone-Bannock Tribes, Chairman Elwood Lowery of the
    Pyramid Lake Paiute Tribe, and Chairman D.K. Sprague of the Gun
    Lake Band. Each one of these folks is going to discuss the
    bill's impact in their tribes. I want to say thank you to all
    you folks for traveling to Washington to visit with the
    Committee and give your perspective and give us the ability to
    put some meat on the bones when it comes to these bills.
        We thank you all for being here. The same goes for this
    panel as the previous one, you will have five minutes to make
    your remarks. Your entire written statement will be a part of
    the record. If you can stick to the five minute mark, it gives
    us a little additional time for questions.
        So with that, Brian, you may begin.

    STATEMENT OF HON. BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS
                          OF AMERICAN INDIANS

        Mr. Cladoosby. Chairman Tester, Vice Chairman Barrasso,
    members of the Committee, thank you for the opportunity to
    testify today. We very much appreciate the introduction of this
    legislation.
        The restoration of tribal homelands is critical to the
    futures of all Indian Tribes, and they have worked very hard to
    promote this legislation for the last five years.
        Also I want to thank you, Chairman Tester, for your candor
    at NCAI's Executive Council meeting in March. You questioned us
    whether we were closer to a solution. We firmly believe that a
    clean fix is by far the best and fairest solution for Indian
    Country at this time. Given the challenges to get this fix
    passed is going to be the issue.
        You asked that tribal leaders come together and engage in
    meaningful dialogue about options. I am here to thank you for
    that leadership, and although we are disappointed that after
    five years we were told we may not be able to advance the clean
    fix that we have requested, I pledge that I will do everything
    in my power as President of NCAI to facilitate dialogue amongst
    tribes.
        The Supreme Court's decision in Carcieri v. Salazar in 2009
    overturned a Department of Interior longstanding interpretation
    regarding the Indian Reorganization Act of 1934. The Supreme
    Court in Carcieri held the the ``now'` in the phrase ``now
    under Federal jurisdiction'` and the definition of Indian
    limits, the Secretary's authority to acquire lands under the
    IRA for only those Indian tribes under Federal jurisdiction on
    June 18th, 1934, the date the IRA was enacted.
        The Supreme Court left open the question of what it means
    for an Indian tribe to be under Federal jurisdiction. As a
    result, there has been significant and harmful related
    litigation. For example, in Patchak v. Salazar in 2012, the
    Supreme Court found that prior acquisitions of trust land are
    not protected by the Quiet Title Act. Most recently in
    California v. Big Lagoon, the Ninth Circuit found that Big
    Lagoon Rancheria was not under Federal jurisdiction in 1934,
    because no tribal members were living on trust land in 1934.
        These legal precedents following the Carcieri decision are
    deeply troubling to Indian Country. They underscore why the
    Congress must act to fix this decision. It has now been over
    five years since the Supreme Court decided the Carcieri case
    and what began as an effort by tribes to simply follow the
    intent of the Indian Reorganization Act and allow tribes to
    restore their homelands now has become a different effort.
        So if we were to simply address the Supreme Court case,
    then we would amend one sentence in the Indian Reorganization
    Act to make sure all tribes could take land into trust, nothing
    more, and nothing less. This is exactly what S. 2188 does.
        However, as this Committee is well aware, it is not often
    that standalone bills that address Indian issues move through
    Congress. Therefore, when tribal legislation becomes priority,
    it is often seen as a vehicle to address a myriad of other
    issues related to tribes. That is what happened here. Carcieri
    legislation has become weighted down by issues such as gaming,
    State, county and tribal jurisdictional issues, and Federal
    recognition.
        So while the right result would be to have enough support
    in this Congress to simply pass a clean fix, we have not been
    able to accomplish this today. And Senator Tester, based on
    your statements to tribal leaders at NCAI's Executive Session
    meeting, it is time to have a different conversation so we can
    reach different results.
        Tribes are at a crossroads. There is no status quo.
    Litigation continues and the courts are shaping policy for
    tribes instead of Congress, and changed decisions that have
    been made for over 100 years. You have asked Indian Country to
    dialogue and move this issue forward. As President of NCAI, I
    am willing to lead this effort. But it will be difficult, and I
    will likely get criticized for even suggesting we have these
    conversations.
        But having these difficult and serious conversations about
    legislation is not new to Indian Country. We have had to have
    difficult discussions around the Tribal Law and Order Act, the
    Indian Health Care Improvement Act and the Cobell settlement.
    We didn't get anything we wanted in these bills, but tribal
    governments and Indian people are better off today because
    those pieces of legislation were drafted, based on significant
    tribal input, championed by this Committee and signed into law.
        So as you asked, Mr. Chairman, NCAI will have these
    discussions with Indian Country. We are willing to do that. But
    we need the full support of every member of this Committee,
    which is our trustee in the true sense of the word, which has
    been asked to uphold the constitution which says that treaties
    are the supreme law of the land.
        So I ask that every Committee member work on behalf of
    Indian Country to support a fix and bring resolution to this
    issue.
        We look forward to working with you and the Committee. And
    I have five seconds I will yield here to my friend to my left.
        [Laughter.]
        [The prepared statement of Mr. Cladoosby follows:]

        Prepared Statement of Hon. Brian Cladoosby, President, National
                          Congress of American Indians
        Chairman Tester, Vice Chairman Barrasso and Members of the
    Committee, thank you for the opportunity to testify today. We very much
    appreciate the introduction of this legislation. The restoration of
    tribal homelands is critical to the futures of all Indian tribes and we
    have worked very hard to promote this legislation for the last five
    years, ever since the Supreme Court decision in Carcieri v. Salazar
    which developed a new interpretation of the phrase ``recognized Indian
    tribe now under federal jurisdiction.''
        I also want to thank you Chairman Tester for your candor at NCAI's
    Executive Council meeting in emphasizing that while we have worked
    diligently for five years, it is questionable whether we are any closer
    to a solution. We firmly believe that a ``clean fix'' is by far the
    best and fairest solution for Indian Country. You asked that tribal
    leaders come together and engage in meaningful dialogue about options.
    I am here to thank you for that leadership. I pledge that I will do
    everything in my power as President of NCAI to facilitate dialogue
    among tribes.
    Brief Background, Analysis, and Discussion of Options
        The Supreme Court's decision in Carcieri v. Salazar in 2009
    overturned a Department of Interior longstanding interpretation
    regarding the Indian Reorganization Act of 1934 (IRA). The Supreme
    Court held the term ``now'' in the phrase ``now under Federal
    jurisdiction'' in the definition of ``Indian'' limits the Secretary's
    authority to acquire lands under the IRA for only those Indian tribes
    ``under federal jurisdiction'' on June 18, 1934, the date the IRA was
    enacted.
        The Supreme Court left open the question of what it means for an
    Indian tribe to be ``under federal jurisdiction,'' and as a result
    there has been significant and harmful related litigation. In Patchak
    v. Salazar in 2012, the Supreme Court found that prior acquisitions of
    trust land are not protected by the Quiet Title Act. Most recently in
    California v. Big Lagoon, the 9th Circuit found that the Big Lagoon
    Rancheria was not under federal jurisdiction in 1934 because no tribal
    members were living on trust land in 1934. NCAI has supported
    rehearing, but we are starting to see the trend of bad legal precedents
    coming out of the Carcieri related litigation.
        In 1934, Congress rejected allotment and assimilation and passed
    the IRA. The clear 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.
        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.
    Opposition Based on Expansion of Indian Gaming
        While land restoration under the IRA has nothing to do with gaming,
    opposing parties are using the decision to oppose land to trust for
    gaming. Much of the resulting litigation is centered on land
    acquisition for the purposes of gaming. In Congress, opposition to the
    legislation has also focused on gaming. Even among tribes there is some
    litigation and concern based in opposition to gaming facilities.
    Although we have worked for five years to frame the issue as a question
    of fundamental fairness and land restoration for all tribes--because
    that is what the IRA and our efforts to get it fixed are about--perhaps
    we cannot avoid the fact that the opposition's concerns are about
    gaming.
        It has now been over five years since the Supreme Court decided the
    Carcieri case and what began as an effort by tribes to simply follow
    the intent of the Indian Reorganization Act and allow tribes to restore
    their homelands has now become a different effort. So if we were to
    simply address the Supreme Court case, then we would amend one sentence
    in the Indian Reorganization Act to make sure all tribes can take land
    into trust--nothing more and nothing less. This is exactly what S. 2188
    does.
        However, as this Committee is well aware, it is not often that
    stand-alone bills that address Indian issues move through Congress.
    Therefore, when tribal legislation becomes a priority, it is often seen
    as a vehicle to address a myriad of other issues related to tribes.
    That is what happened here--the legislation has become weighed down by
    issues such as gaming.
        So while the right result would be to have enough support in this
    Congress to simply pass a clean fix--we have not been able to
    accomplish this to date. And, Senator Tester, based on your statements
    to tribal leaders at NCAI's Executive Session meeting, it is time to
    have a different conversation so we can reach a good result.
        Tribes are at a crossroads--status quo means that litigation will
    continue and the courts will shape policy for tribes instead of
    Congress. You have asked Indian Country to dialogue and move this issue
    forward. As President of NCAI, I am willing to lead this effort but it
    will be difficult and I will likely get criticized for even suggesting
    we have these conversations.
        But, having these difficult and serious conversations about
    legislation is not new to Indian Country. We had to have difficult
    discussions around the Tribal Law and Order Act, the Indian Health Care
    Improvement Act, and the Cobell settlement. We didn't get everything we
    wanted in these bills, but tribal governments and Indian people are
    better off today because those pieces of legislation were drafted with
    significant tribal input, championed by this Committee and signed into
    law.
        So, if you are asking NCAI to have those discussions with Indian
    Country, we are willing to do that, but we will need the full support
    of every member of this Committee to work on behalf of Indian Country
    to support a fix and bring resolution to this issue.
        On-reservation acquisitions. The other reality that we face is that
    many tribes are not directly affected by the Carcieri problem. In order
    to generate broader tribal support for the legislation, we could
    consider including language in the ``fix'' that would address some of
    the more general tribal concerns about the land to trust process. For
    example, there is generally wide support for on-reservation land to
    trust acquisitions where tribes are simply restoring lands within their
    existing reservations. However tribes run into an incredible amount of
    red tape and delays--sometimes for decades. Tribal leaders could
    consider an option for simplifying and expediting the process for these
    non-controversial acquisitions. Including some provisions along these
    lines might draw more interest and support from a broad spectrum of
    tribes, which would help achieve legislative success.
        Quiet Title Act. Another aspect of the Carcieri-related litigation
    is of significant concern to all tribes. The Patchak decision set a
    precedent for disturbing the title status of federal Indian lands, and
    now in Big Lagoon the federal courts seem to be willing to go back in
    time for many decades. This was clearly not the intention of the Indian
    lands exception to the Quiet Title Act. In Patchak the Supreme Court
    found the tribal arguments ``not without force,'' but indicated tribes
    should to take their arguments to Congress. Tribes could consider
    amendments to the Quiet Title Act that would protect the status of
    existing and longstanding federal trust lands.
    Conclusion
        Chairman Tester, thank you for inviting a dialogue among tribes
    about new options. This testimony is intended to initiate that dialogue
    among tribes, and with you Mr. Chairman, Vice Chairman Barrasso, and
    the other Members of the Committee. There may be many options we should
    consider, and I would encourage both this Committee and the Department
    of Interior to engage in consultation with all tribes. As the President
    of NCAI, I will take these issues to the tribal leadership and seek
    their views, and I hope I will have the opportunity to coming back to
    you for more discussion in the near future.
        In addressing this difficult challenge, Indian Country is asking
    for the bipartisan support of this Committee. The Committee on Indian
    Affairs has been a great friend and benefactor to Indian Country and
    Indian people so many times and in so many ways over the decades. Now
    we are calling on your assistance again. Thank you.

        The Chairman. Brian, thank you for your testimony. I will
    say that this won't happen because of your effort or my effort.
    It will happen because of all of our efforts. I think that is
    the key.
        So if we work together, we can be successful. If this
    Committee fractures, or there is a Native American fracture,
    then it is going to be very, very difficult.
        We have a good relationship. We will put the shoulder to
    the wheel and we will make it happen.
        Nathan Small, you are up.

     STATEMENT OF HON. NATHAN SMALL, CHAIRMAN, FORT HALL BUSINESS
                    COUNCIL, SHOSHONE-BANNOCK TRIBES

        Mr. Small. Good afternoon. My name is Nathan Small. I am
    Chairman of the Fort Hall Business Council of the Shoshone-
    Bannock Tribes in southeastern Idaho.
        I am honored to testify here first on S. 2040. And it is
    good to see Senator Crapo here, I come visit him every time I
    am in town, and he has been gracious enough to come visit us
    whenever he is back home. Good to see you and thank you for the
    words that you brought out here. We really appreciate his and
    Senator Risch's efforts on this bill in the past five years.
        Again, just to echo what Senator Crapo indicated, this bill
    would resolve land ownership disputes resulting from channel
    realignment of the Blackfoot River in 1964 by the U.S. Army
    Corps of Engineers. All impacted parties, including the non-
    Indian landowners on the north bank of the river, support this
    bill.
        The realignment severed various parcels of land along the
    river, resulting in Indian land being located north of the
    realigned river and non-Indian land being located south of the
    realigned river. The best way to understand the problem created
    by the re-channelization is by showing you this map. And that
    is this map over here. As you can see, the original boundary
    and the river are shown in blue. It is a little hard to see the
    blue, but you can see how the river basically meandered through
    or snaked through the area there.
        Also, what you will see is, basically these loops that were
    created when they rechanneled created a lot of land that was
    landlocked or had no access. And there is about 44 of those
    loops altogether, you can see the blue loops, going around and
    around there. So this one here is probably the most exaggerated
    loop of them all, you can see that right here, along with the
    others over here.
        But when you don't have access to your land, you can't do
    anything with it. As a result, you miss out on whatever
    productivity you might have had for that land. I think some of
    these lands were already being farmed and had some income
    coming off of them for the people that were involved in these,
    both Indian and non-Indian.
        S. 2040 would resolve the clouded titles by placing about
    31 acres of non-Indian lands located south of the river into
    trust for the tribes and by converting about 37 acres of Indian
    trust land located north of the river into fee lands and
    transferring those lands to the Blackfoot River Flood Control
    District No. 7. Clearing title would enable us to farm or use
    the land. The parties have lost valuable income due to the
    inability to farm these lands.
        In the past, objections were raised by the authorization
    for appropriation provisions contained in previous versions of
    this bill. In order to move that forward, the parties removed
    this provision in the bill and made other changes. We are
    encouraged that Interior now supports this bill and we urge
    Congress to enact this bill and thank you, and again thank you
    to Senator Crapo and Senator Risch for allowing us to present
    this and get something straightened out that has been there
    since the 1960s.
        The second bill on here to discuss is S. 2041, the 1918
    Appeal Act. We thank again Senators Crapo and Risch for
    introducing S. 2041 that repeals the authority of Interior to
    transfer our reservation lands into a municipality for use as a
    town site or other public purposes. Even though a municipality
    was never formally established, approximately 120 acres of the
    tribe's lands were taken out of trust under the Act.
        As you can see, our reservation currently has about 544,000
    acres of land. The red shows that. Originally, when the land
    was supposed to have been surveyed, that line was supposed to
    come clear down to here. Of course, that didn't happen. The
    green part here is Bingham County. They have basically agreed
    that the town site should probably come back under the tribe,
    it is not something that they have had a lot to do with. The
    black dot is the location of this little town site here. As you
    can see in the bigger picture, this is how it looks today.
        In 1966, Interior issued a public land order restoring
    approximately four acres of our lands and approximately 111
    acres still remain that are currently not in trust. Tribal
    members and non-Indians own pieces of the land, simple parcels
    in that area. If you look at this map here, and I believe there
    are some on that side there, there is about four acres that was
    put back into trust in 1960, there. As you can see, this whole
    town site in this area is very close to a lot of our tribal
    governmental activities. There is our REAMS complex, here is
    the justice center that we just recently built, and our tribal
    business center is right here. We have our rodeo grounds and
    our festival grounds right here, our Indian Health center.
        So most of our activity is all centered around here, our
    tribal government. But across the road here, we have this town
    site, that is currently out of trust.
        The tribes do own some parcels in here. There is a school
    right here, I believe, an elementary school that is under
    school district number 55 in Blackfoot, Idaho. Right across the
    street there is what used to be an old LDS church that is now
    currently being utilized by our fisheries department. So a part
    of our tribal government is also using some of the land within
    this area. Again, there are several places in this area that
    are owned by tribal members, owned by other Indians, and owned
    by non-Indians.
        So when Mr. Washburn was talking about some clarity to the
    place, we also want some clarity to the place. But a lot of
    that information that he is currently looking for we have been
    diligently working to gather that information. He should have
    it by tomorrow or the next few days, and we will also make sure
    that the Committee gets that, so there is no more
    misunderstanding of the clarity of that place.
        The tribes in Bingham County have been working
    cooperatively for several years on a lot of matters. This is
    one mater that we have been working cooperatively with them.
    Just to let you know, our tribal government provides all the
    services to the town site there already. We provide water,
    waste disposal and fire and EMS, and even some police
    protection out there. So based on that, the county does support
    us, and we jointly seek the repeal of the 1918 Act to resolve
    issues relating to the clouded titles and the insurance risks.
        On September 16, 2013, the county sent a letter requesting
    legislation to repeal the Act that would provide the tribes the
    opportunity to purchase non-trust lands at fair market value
    that are offered for sale. S. 2041 would direct Interior to
    place only non-trust 1918 Act lands acquired under this bill
    into trust. A technical amendment is needed to clarify that a
    section of the bill applies only to the 1918 Act lands. Their
    current uses and land ownership would not be impacted by repeal
    of the law. So everything basically would still be the same as
    far as the ownership of those lands, except for those that are
    either owned by the tribe or other Indians would go into trust.
        S. 2041 is consistent with Federal law and policies to
    restore tribal homelands. Let's get it done, so we can get it
    done.
        One of the other things I would like to talk about is to
    discuss S. 2188, and again, I would like to echo just about
    everybody else's comments concerning that. It has been five
    years since this decision has deterred investments and job
    creation on Indian lands and has opened up criminal convictions
    to challenge. More importantly, Carcieri has produced a series
    of Federal cases that are cutting away at tribal sovereignty.
        The most recent attack was the Ninth Circuit Big Lagoon
    Rancheria decision from January of this year. This case took
    Carcieri to a dangerous new level. It goes beyond placing
    Indian lands into trust. Big Lagoon threatens existing tribal
    homelands regardless of how long the lands have been in trust.
        The Shoshone-Bannock tribes have a treaty-protected
    reservation. We are organized under the IRA in 1934. So for
    most purposes, we are not in the direct line of fire. However,
    after the Big Lagoon decision and the growing list of cases yet
    to be cited, all tribes are at risk.
        I can't put it any simpler than to say this is a full-scale
    attack on tribal sovereignty. When one tribe loses that battle
    to protect sovereignty, we all lose. If nothing is done, the
    Federal courts will continue to erode our trust lands and our
    power to govern. The Shoshone-Bannock tribes are members of the
    Montana-Wyoming Tribal Leaders Council, the Coalition of Large
    Tribes and the Affiliated Tribes of Northwest Indians. All of
    these organizations have joined a total of 29 national and
    regional tribal organizations representing more than 400 tribes
    in strong support of a Carcieri fix. A letter from these
    organizations is attached to my written statement.
        And in closing, S. 2188 will protect existing Indian lands,
    revive investment in Indian Country and comes at no cost to the
    Federal Government. Most importantly, this bill will stop the
    line of attacks on tribal sovereignty in Federal courts. This
    is a top priority for all of Indian Country and I respectfully
    urge all members of the Committee to co-sponsor S. 2188, and I
    ask that the Committee work with the Senate leadership to pass
    this bill.
        I want to again thank the Committee for the opportunity to
    testify on these bills here today. If I am able, I would like
    to answer questions you may have. I am really enthused by what
    Senator Crapo has been doing for us, in taking care of a lot of
    these issues here. It has been a long time, like you said, this
    is our third Congressional year trying to get something done
    here. I think we have it ready for the other two bills along
    with the Carcieri. Thank you.
        [The prepared statement of Mr. Small follows:]

     Prepared Statement of Hon. Nathan Small, Chairman, Fort Hall Business
                        Council, Shoshone-Bannock Tribes

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you, Nathan. We appreciate your
    testimony, appreciate your perspective.
        Elwood Lowery, you are up to bat.

    STATEMENT OF HON. ELWOOD LOWERY, CHAIRMAN, PYRAMID LAKE PAIUTE
                                 TRIBE

        Mr. Lowery. My name is Elwood Lowery, Chairman of the
    Pyramid Lake Tribe. I am here representing the tribe at the
    request of the Vidler Water Company in support of S. 1818, the
    Pyramid Lake Paiute Tribe-Fish Springs Ranch Settlement Act.
    Vidler Water Company is the managing partner for Fish Springs
    Ranch. Steve Hartman, the Vice President, is here today and
    available to answer any questions.
        First, I would like to request that our joint statement and
    the full settlement package be placed in the record and I be
    allowed to summarize the statement.
        The Chairman. It is in, without objection.
        Mr. Lowery. Also, I would like to express appreciation to
    Chairman Tester and Vice Chairman Barrasso and Senator Crapo,
    for holding this hearing. I recognize the time of the hearing
    is limited. I hope that the hearing is a good sign for S. 1818
    to be enacted. S. 1818 proposes new authorization and
    ratification to confirm that basically it is a private
    settlement between the tribe and Fish Springs.
        The basic issue was a dispute over a proposed project by
    Fish Springs Ranch to pump groundwater north of Reno. We were
    concerned that the pumping could adversely affect groundwater
    on or near the Pyramid Lake Reservation. Because the proposed
    project required a BLM right of way, we sued the Department of
    Interior and BLM for breach of trust and violation of NEPA when
    BLM approved the right of way over our objections. Fish Springs
    joined the suit on the side of Interior.
        However, we got together and decided to settle this issue
    rather than continue to litigate. The settlement involves a
    trust resource, because the Fish Springs project could affect
    water on the reservation. Therefore the settlement requires
    Federal authorization to take effect. That is why we are here.
        From Fish Springs' standpoint, the settlement protects
    their private groundwater project, which is in Honey Lake
    Valley. Fish Springs will pump groundwater in Honey Lake Valley
    and transport it to the northern suburbs of Reno, Nevada. From
    the tribe's standpoint, the settlement was closely examined by
    the tribal hydrologist, our attorneys and our council. We
    believe it reasonably compensates the tribe for the potential
    damage to reservation groundwater.
        We recognize that every settlement is unique. In this case,
    the tribe and Vidler came together and reached a settlement
    without the involvement of the Department of Interior. We also
    have worked very hard to make this settlement and the proposed
    legislation easy for Congress and the Administration to
    approve.
        Simply stated, the settlement will terminate our lawsuit
    against the Department of the Interior. The settlement requires
    no action from the Department of the Interior. Unlike most
    water rights, settlements, there is no cost to the United
    States Government from the settlement or the proposed
    legislation. The legislation assures that the Federal
    Government will bear no liability from the settlement.
        Both the tribe and Fish Springs urge Congress to enact S.
    1818 at its earliest opportunity this year, to be passed
    earlier this year if it can. I would like to thank you for
    allowing me to make this appearance, and would be pleased to
    answer any questions.
        [The prepared statement of Mr. Lowery follows:]

    Prepared Statement of Hon. Elwood Lowery, Chairman, Pyramid Lake Paiute
                                     Tribe
        I am Elwood Lowery, Chairman of the Pyramid Lake Paiute Tribe, and
    am here today representing the Tribe and also at the request of Vidler
    Water Company regarding S. 1818, the Pyramid Lake Paiute Tribe--Fish
    Springs Ranch Settlement Act. Vidler Water Company is the managing
    partner for Fish Springs Ranch, LLC. We greatly appreciate the fact
    that the Senate Indian Affairs Committee has scheduled this hearing and
    we urge you to expeditiously report out S. 1818 to the full Senate for
    consideration and approval.
        At the outset, I would like to say that we have worked hard to make
    this settlement and the requisite legislation easy for Congress to
    approve. It ratifies an agreement between two independent parties--the
    Tribe and Fish Springs Ranch--at no cost to the United States
    Government, asks for and requires no action by the Department of the
    Interior and likely reduces its workload, terminates a lawsuit against
    the Department of the Interior, and assures that the Government will
    bear no liability from the settlement. It also protects a private water
    project that is already constructed and reasonably compensates the
    Pyramid Lake Paiute Tribe from private funds for any actual or
    potential resource loss. Because it involves a trust resource, however,
    it requires Federal authorization to take effect. That is why we are
    here.
        The proposed legislation (S. 1818) authorizes, ratifies and
    confirms a settlement between the Pyramid Lake Paiute Tribe (Tribe) and
    Fish Springs Ranch, LLC (Fish Springs). The proposed legislation is
    necessary to complete the settlement which resolves the parties'
    dispute over water rights and alleged injuries to tribal water rights
    in connection with the pumping and transport by Fish Springs of
    groundwater from the Honey Lake Valley Basin to the suburban Stead/
    Lemmon Valley area north of Reno, Nevada. The transport of the
    groundwater to the Reno suburbs is across public lands, which required
    a Bureau of Land Management (BLM) right-of-way permit. The groundwater
    pumping takes place west of the Pyramid Lake Paiute Reservation. The
    Tribe's concern with the project was that Fish Springs' pumping could
    reduce the flow of groundwater to the Pyramid Lake Valley and Smoke
    Creek Desert portions of the Tribe's Reservation, reducing the Tribe's
    precious groundwater resource and potentially adversely affecting
    Pyramid Lake, which is a desert terminus lake located entirely within
    the boundaries of the Pyramid Lake Paiute Reservation and home to the
    threatened Lahontan cutthroat trout and the endangered cui-ui. The fish
    of Pyramid Lake were the primary food resource of the Tribe for
    millennia and the Tribe has close cultural ties to them. The Native
    name for the Pyramid Lake Paiute, Cui Ui Ticutta, means cui-ui eaters.
        Fish Springs Ranch and the Tribe have resolved their dispute
    through settlement, which needs federal approval. The terms of the
    settlement are reflected in an agreement entered into by the parties on
    May 30, 2007 (Original Agreement), and a supplement to that agreement
    entered into by the parties on November 20, 2013 (Supplemental
    Agreement), discussed below. The settlement involved two parts, the
    first of which has been completed and required no federal legislation.
    The second part involves the Tribe's waiver of full legal protection of
    its potentially affected water rights in the project area in favor of
    Fish Springs Ranch's pumping for its water export project and requires
    federal authorization for the Tribe to grant such waivers. Without this
    legislation, the Tribe will lose its ability to receive the benefits of
    the second part of the settlement, including the right to $3.6 million
    and accumulated interest.
    Background
        In 2005 and 2006, the Bureau of Land Management issued a Final
    Environmental Impact Statement on rights-of-way across public lands for
    groundwater projects in the Honey Lake Valley of Nevada north of Reno,
    a Record of Decision for the Fish Springs groundwater project, and a
    water pipeline right-of-way across public lands for transport of
    groundwater from Honey Lake Valley to suburbs north of Reno. One of the
    project proposals considered in the EIS was Fish Springs' water pumping
    and export project. The total amount of groundwater rights covered by
    the Fish Springs project is 14,108 acre feet per year (afy), of which
    13,000 afy is authorized to be pumped by Nevada State Engineer rulings.
    Of the 13,000 afy, 8,000 afy was covered in the EIS and another 5,000
    afy could be pumped and sold in the future. A visual portrayal of the
    geography of the project area in relation to the Pyramid Lake Paiute
    Reservation and Reno, Nevada, is attached to the end of this statement.
        The Tribe's concern with the groundwater pumping was the potential
    effects of pumping groundwater in Honey Lake Valley on the Tribe's
    Reservation and water resources. The U.S. Geological Survey groundwater
    model used in BLM's EIS predicted the maximum groundwater outflow from
    Honey Lake Valley to Pyramid Lake Valley, which is the location of much
    of the Pyramid Lake Paiute Reservation, via Astor Pass could be reduced
    by about 140 afy after 100 years, and eventually 150 afy at steady-
    state, or 10 percent of baseline conditions. The maximum groundwater
    outflow to Smoke Creek Desert, much of which is also part of the
    Tribe's Reservation, via Sand Pass could be reduced by about 450 afy
    after 100 years, and eventually 570 afy at steady-state, or 11 percent
    of baseline conditions. A substantial quantity of Smoke Creek Desert
    groundwater flows toward Pyramid Lake Valley and the model projected a
    potential reduction in flow of this groundwater that could eventually
    reduce groundwater outflow to Pyramid Lake Valley by about 500 afy, for
    a total effect on Pyramid Lake Valley of about 650 afy. These
    reductions were predicted for the entire hydrologic basins rather than
    groundwater specifically underlying the portions of the Pyramid Lake
    Paiute Reservation within those basins, but the Pyramid Lake Paiute
    Reservation occupies a major part of both areas.
        The Tribe objected to the EIS, the Record of Decision, and the
    project, and asserted that the project would harm the resources of the
    Pyramid Lake Paiute Reservation, cause injuries to tribal water rights,
    and impair the Tribe's existing and claimed tribal water rights. The
    Tribe filed suit in Federal District Court for the District of Nevada
    on grounds of a violation of the National Environmental Policy Act
    (NEPA) and breach of trust, securing a preliminary ruling that the EIS
    most likely violated NEPA and an injunction. Appeals were filed with
    the Ninth Circuit Court of Appeals and an appeal was also filed before
    the Interior Board of Land Appeals.
        The parties intended to settle these issues through the Original
    Agreement entered into on May 30, 2007.
    The Original Agreement Had Two Parts
             Part 1: The first part permitted Fish Springs project
            construction to proceed and the project to operate in return
            for $3,600,000, the transfer of over 6,200 acres of land to the
            Tribe, and certain other consideration including the right to
            payments to the Tribe for future transfers of water in excess
            of 8,000 afy already authorized up to an additional 5,000 afy.
            It was intended to settle all administrative appeals and end
            all litigation involving the Tribe's objections to the project
            and Fish Springs water rights, the EIS, and BLM's Record of
            Decision and impacts to the Tribe and its resources.

             Part 2: The second part, in return for a second payment of
            $3,600,000 plus accumulated interest to the Tribe, intended to
            completely and fully settle all claims of the Tribe and, if
            any, of the United States on behalf of the Tribe for impacts or
            injuries to existing and claimed tribal water rights, injuries
            to tribal water rights in four hydrographic basins, and
            potential injuries resulting from the project to the Pyramid
            Lake Paiute Reservation. Part 2 of the Original Agreement was
            contingent on legislation to authorize the completion of its
            terms.

    The Settlement Today
        Part 1: Part 1 of the Original Agreement was not contingent on
    legislation and the parties have performed and are continuing to
    perform their obligations, including but not limited to the following:

            1.  Fish Springs paid the Tribe $3,600,000;

            2.  Fish Springs transferred and conveyed approximately
            6,214.32 acres of land to the Tribe;

            3.  Fish Springs has implemented the water resources,
            monitoring, and management plan as approved by the Nevada State
            Engineer;

            4.  Fish Springs has delivered and continues to deliver certain
            resource reports to the Tribe and the United States showing the
            total amount of water pumped and transferred from Fish Springs
            Ranch to the North Valleys Planning Area through the project;

            5.  To the extent opportunities have arisen to date, the Tribe
            has cooperated in the future permitting for the project;

            6.  The Tribe has participated in dissolving a preliminary
            injunction in the Federal District Court Action, dismissing the
            IBLA Appeal, and dismissing the Ninth Circuit Appeals, which
            paved the way for Fish Springs' pipeline to be constructed; and

            7.  Fish Springs has been able to exercise its right under the
            Original Agreement to pump and transfer water through the
            project to end users.

        Part 2: Completing Part 2 of the Original Agreement languished as
    the legislation required by the settlement and proposed toward the end
    of the session in 2008 was not enacted. The Tribe and Fish Springs
    still desired to complete the terms of Part 2 of the Original
    Agreement, however, and entered into the Supplemental Agreement this
    past November to accomplish this objective. The Supplemental Agreement
    simplifies the remaining actions required to accomplish Part 2 of the
    Original Agreement while remaining true to its original intent. Under
    Part 2 of the settlement, the Pyramid Lake Paiute Tribe agrees to not
    challenge Fish Springs existing state permitted water rights, to waive
    claims for damages or taking of Tribal water rights from use of Fish
    Springs' state-permitted water rights, and to not impair, prevent, or
    interfere with implementation of the Fish Springs' project. In return,
    Fish Springs agrees to compensate the Tribe for allowing the project to
    proceed through a monetary settlement. The Tribe considers the value of
    the settlement to be fair and the Pyramid Lake Paiute Tribal Council
    has approved the settlement after examining it closely.
        The Supplemental Agreement modifies the manner in which the
    settlement is approved by the United States. The Original Agreement was
    negotiated by the Tribe and Fish Springs, but assumed that the United
    States, through the Executive Branch, as the Tribe's trustee, would
    sign waivers of potential claims against Fish Springs along with the
    Tribe even though Departments of Justice and Interior representatives
    were not involved in the negotiations. This approach has been modified
    to have the same effect, but for Congress to (1) extinguish claims the
    United States could bring on behalf of the Tribe against Fish Springs
    to the extent that claims are waived by the Tribe, (2) eliminate the
    responsibility of the United States to assert such claims on behalf of
    the Tribe, and (3) terminate any potential liability of the United
    States resulting from the settlement terms. In these ways, the
    settlement is simpler and the proposed legislation does not require
    participation in the settlement by the Executive Branch.
        The Supplemental Agreement also modifies the approach in the
    Tribe's waivers to that generally recommended by the Department of the
    Interior, which is patterned on recent Indian water rights settlements
    such as those for Aamodt, White Mountain Apache, and the Crow Tribe. In
    doing so, it adds specific waivers of claims against the United States
    by the Tribe, which complement the waivers of claims against Fish
    Springs, and assures the United States that it will incur no
    liabilities as a result of the settlement.
        The Supplemental Agreement also provides that if Legislation is not
    enacted by December 31, 2015, Part 2 of the Settlement will be
    terminated. In this case, the Tribe would no longer be entitled to
    payment from Fish Springs for Part 2 of the settlement.
    The Proposed Legislation, S. 1818
        The proposed legislation authorizes and ratifies the Supplemental
    Agreement and thereby permits the settlement between the Tribe and Fish
    Springs to be completed. Through the proposed legislation, the United
    States would extinguish any claims on behalf of the Tribe that are
    waived by the Tribe against Fish Springs and the United States would
    have no right or obligation on behalf of the Tribe to assert claims
    waived by the Tribe. The Tribe would also waive any claims it might
    have against the United States under the agreement and act including
    waiving any United States liability to the Tribe for the claims waived,
    subject to certain reservations. The proposed legislation would
    authorize the Tribe to grant the waivers against both Fish Springs and
    the United States, which it cannot do without authorization from
    Congress. These provisions would take effect after the Tribe signed its
    waivers and Fish Springs paid the Tribe $3,600,000 plus interest from
    January 8, 2009, until the date the payment is made. The Tribe will
    also dismiss pending litigation against the Bureau of Land Management
    for violations of NEPA and United States trust responsibilities related
    to the Fish Springs project and Fish Springs' use of its groundwater
    rights.
    Benefits of the Settlement to the United States
        The settlement resolves a lawsuit against the Bureau of Land
    Management, eliminates the potential need for the Bureau of Land
    Management to prepare a new or supplemental EIS, fulfills a trust
    responsibility of the United States to the Tribe, eliminates a
    potential liability of the United States for breach of trust against
    the Tribe, resolves water rights between the Tribe and Fish Springs
    Ranch, and, potentially, between the United States, acting on behalf of
    the Tribe, and Fish Springs Ranch, at no cost to the United States.
        No federal appropriation of funds is sought or needed under the
    settlement or the proposed legislation.
        Both Fish Springs Ranch and the Tribe urge that Congress enact S.
    1818 at its earliest opportunity this year so that we can complete the
    settlement and not be pushed up against the termination deadline next
    year. We thank you for this hearing and for your consideration of this
    settlement legislation.

        The Chairman. There will be questions here shortly. We are
    going to get Chairman Sprague to have his testimony, then we
    will get to questions.
        You may proceed.

    STATEMENT OF HON. DAVID ``D.K.'' SPRAGUE, CHAIRMAN, MATCH-E-BE-
                   NASH-SHE-WISH BAND OF POTTAWATOMI
                                INDIANS

        Mr. Sprague. Good morning. My name is D.K. Sprague, I am
    the Chairman of the Match-E-Be-Nash-She-Wish Band of
    Pottawatomi Indians of Michigan. We are also known as the Gun
    Lake Tribe.
        I want to thank the Committee for holding this hearing on
    S. 1603, a bill that will simply reaffirm the trust status of
    our lands. I also want to thank Senators Stabenow and Levin who
    introduced this bill and our own Congressman, Fred Upton, whose
    district encompasses our reservation and who was a strong
    supporter of this bill.
        Mr. Chairman, this legislation is very straightforward. It
    simply reaffirms the trust status of the one parcel of land the
    Federal Government currently holds in trust for our tribe. Our
    tribe's sovereign status was reaffirmed by the United States on
    August 23, 1999. In 2001, additionally, the Secretary of
    Interior did take 147 acres into trust on behalf of our tribe.
        After several years of a long and costly administrative
    process, and many more years of legislation these lands were
    finally placed in trust on January 30, 2009, nearly eight years
    after we first petitioned to have these lands taken into trust.
    That fact still astounds me today.
        We have since opened a gaming and entertainment facility on
    our reservation lands. They are the same lands where we house
    our tribal police department. Again, this is the only parcel of
    land that is held in trust on behalf of our tribe.
        Since February of 2011, we have hired over 1,000 people in
    our community. We have also worked closely with our local
    governmental partners on a revenue sharing plan that has
    greatly benefited our tribe, local schools, law enforcement
    agencies and local communities. All this is now threatened by a
    U.S. Supreme Court opinion that has allowed one individual to
    challenge the authority of the Secretary of Interior to take
    land into trust for our tribe.
        This case threatens our economic well-being and has made it
    virtually impossible for my tribe to obtain financing for any
    future economic development projects. After 13 years of
    administrative and legal battles, we find ourselves still
    fighting the same issues in the courts. Our tribe has suffered
    a great loss of resources from these lawsuits. And while we
    have won every single challenge on the merits, it is now time
    for this dispute to come to an end for the sake of our tribe,
    our employees and our local communities.
        Mr. Chairman, let me be very clear. This legislation will
    simply reaffirm the status of our existing trust lands. And it
    will only impact the Gun Lake tribe. It does not affect any
    other lands, and it does not give my tribe or the BIA any new
    authority. It is my understanding that we are the only tribe in
    the Country that currently faces this dilemma.
        We have a letter from the BIA which underscores the
    uniqueness of our situation. That is why this legislation is
    strongly supported on a bipartisan basis by the Michigan
    Congressional delegation. We also have 35 letters of support
    from local elected officials, law enforcement and business
    leaders and civil groups who live in our community. It is
    important to note that not one unit of government, local,
    county or State, has ever opposed our efforts to reestablish
    our reservation or to operate a gaming facility on our
    homelands.
        Again, thank you for allowing me to testify today. I urge
    the Committee to pass this bill as soon as possible and I am
    open to answer any questions you may have. Megwich.
        [The prepared statement of Mr. Sprague follows:]

     Prepared Statement of Hon. David ``D.K.'' Sprague, Chairman, Match-E-
                  Be-Nash-She-Wish Band of Pottawatomi Indians
        Chairman Tester, Vice- Chairman Barrasso and Members of the
    Committee, my name is DK Sprague and I am the Chairman of the Match-E-
    Be-NashShe-Wish Band of Pottawatomi Indians of Michigan. We are also
    known as the Gun Lake Tribe.
        I want to thank the Committee for holding a hearing on Senate Bill
    1603, a bill that will simply re-affirm the trust status of our lands.
    I also want to thank Senators Stabenow and Levin, who introduced this
    bill--and our own Congressman Fred Upton, whose district encompasses
    our reservation and who is a strong supporter of this bill.
        Mr. Chairman, this legislation is very straight-forward. It simply
    re-affirms the trust status of the one parcel of land the Federal
    Government currently holds in trust for our Tribe.
        Our Tribe's sovereign status was reaffirmed by the United States on
    August 23, 1999. In 2001, we petitioned the Secretary of Interior to
    take 147 acres of land into trust on behalf of our Tribe.
        After several years of a long and costly administrative process--
    and many more years of litigation, these lands were finally placed into
    trust on January 30, 2009--nearly eight years after we first petitioned
    to have these lands taken into trust. That fact still astounds me
    today.
        We have since opened a gaming and entertainment facility on our
    reservation lands. They are the same lands where we house our Tribal
    police department. Again, this is the only parcel of land that is held
    in trust on behalf of our Tribe.
        Since February of 2011, we have hired over 1,000 people in our
    community. We have also worked closely with our local governmental
    partners on a revenue sharing plan that has greatly benefitted our
    Tribe, local schools, law enforcement agencies and local communities.
        All of this is now threatened by a U.S. Supreme Court opinion that
    has allowed one individual to challenge the authority of the Secretary
    of Interior to take land into trust for our Tribe. This case threatens
    our economic well-being and has made it virtually impossible for my
    Tribe to obtain financing for any future economic development projects.
    After thirteen years of administrative and legal battles, we find
    ourselves still fighting the same issues in the courts. Our Tribe has
    suffered a great loss of resources from these lawsuits. And while we
    have won every single challenge on the merits--it is now time for this
    dispute to come to an end--for the sake of our Tribe, our employees and
    our local communities.
        Mr. Chairman, let me be very clear--this legislation will simply
    reaffirm the status of our existing trust lands--and it will only
    impact the Gun Lake Tribe. It does not affect any other lands, and it
    does not give my Tribe or the BIA any new authority.
        It is my understanding that we are the only Tribe in the country
    that currently faces this dilemma. We have a letter from the BIA which
    underscores the uniqueness of our situation.
        That is why this legislation is strongly supported on a bi-partisan
    basis by the Michigan Congressional delegation. We also have 35 letters
    of support from local elected officials, law enforcement, business
    leaders and civic groups who live in our community. It is important to
    note that not one unit of government--local, county or state--has ever
    opposed our efforts to re-establish our reservation or to operate a
    gaming facility on our homelands.
        Again, thank you for allowing me to testify today. I urge the
    Committee to pass this bill as soon as possible and I am open to answer
    any question you may have.

        The Chairman. Thank you, Chairman Sprague.
        Senator Crapo?
        Senator Crapo. Thank you, Mr. Chairman, for letting me go
    first. I do have a meeting I have to get to before that vote
    starts, so I appreciate this.
        I actually don't have any questions, but I did want to take
    this opportunity to welcome Chairman Small of the Shoshone-
    Bannock Tribes here, and to thank him for not only our
    friendship, but for his good, strong leadership in helping us
    to get to this point. We have worked for many years, it has
    been a long road, and I am hopeful that we are close to the end
    of that road and that we can continue to work on this as well
    as a number of the other issues that are working on together.
        Again, Mr. Chairman, I wanted to thank Chairman Small
    publicly for his being here with us today and for the
    tremendous service he gives out in Idaho.
        The Chairman. Thank you, Senator Crapo, and we appreciate
    your leadership also.
        I think we are going to start with Brian. Brian, as far as
    the Carcieri decision goes, I think it is important, as far as
    Carcieri goes, I think it is important that any hearing on this
    issue continues to document the impact of that decision on
    tribes and why it is important for Congress to do what the
    Supreme Court asked them to do, clarify the law.
        The Assistant Secretary spoke about empty houses that are
    now boarded up and will never be used because of the Carcieri
    decision. I would ask you to discuss any similar impacts of the
    Carcieri decision on other reservations throughout the Country.
        Mr. Cladoosby. Yes. In Oregon, there is a tribe right now
    that is affected by this. It is a non-gaming economic
    development project that they had to put on hold now because of
    the impacts of this case. That is very serious, when the
    investors are questioning the tribe's ability to be able to
    move forward on a project like this. It is really detrimental
    to those tribes that are trying to do projects that are non-
    gaming in stature, and the majority of these are.
        So we are seeing impacts around the Country because of this
    case.
        The Chairman. Is it true that this only impacts the tribes
    recognized after 1934?
        Mr. Cladoosby. That is a good question. I believe we have
    to look at it very closely, those tribes that were recognized
    before 1934, and the potential impacts that they could have
    going forward because of this case.
        The Chairman. I would be remiss if I didn't thank NCAI for
    all their work on this issue. I know you are in a tough
    position, as your opening remarks talked about. But the fact
    is, we are going to find a different solution to the Carcieri
    problem with S. 2188. It may not be the ideal solution, it may
    be the ideal solution, too, which is what we hope. But we all
    know that it may not get the support it needs to pass without
    potential changes.
        How can this Committee continue to help promote further
    discussions and dialogues on this issue among tribes and other
    stakeholders?
        Mr. Cladoosby. I think what is very important for people to
    understand is that we just need a one-sentence fix in this. The
    other issues, the gaming issues, the State, county and tribal
    jurisdictional issues, the Federal recognition issues, those
    are definitely issues that need to be dealt with. But we can
    deal with those separately. All we need to do here is just
    amend one sentence in the Indian Reorganization Act to fix
    Carcieri, but continue to work on these other issues that
    people want to put into this bill to weigh this down to
    basically doom its passage.
        So that is what I would hope that the Congress would do,
    seriously look at these other issues but look at it separately
    and independent from a clean Carcieri fix.
        The Chairman. Last fall, we heard from the counties on this
    issue. They wanted to be more involved in the land into trust
    process. What is your view of the counties' role in the land
    into trust process?
        Mr. Cladoosby. If you look at the current fee to trust
    process, and if you ever had to, Senator Tester, jump through
    the hoops and try to get a piece of land from fee into trust,
    you would be banging your head against the wall like tribes are
    sometimes. Counties do get an opportunity right now to voice
    their opinions on fee to trust, according to the regulations.
        A lot of counties are great partners to tribes around the
    Nation. A lot of great relationships have been forged. The
    counties are recognizing 21st century tribes for their economic
    input into their counties. As you know, tribes do not have the
    infrastructure, you have been to many reservations, and you
    know the difference between a Montana city and a Montana
    reservation. There is not the infrastructure in the reservation
    like there is in a city. Tribes are not there yet. But some of
    them are contributing millions of dollars to their local
    economies and the counties are recognizing this.
        So I think it is important that the counties have a voice
    but not have a veto power. That is one thing that everyone
    recognizes that the county should not be able to have a veto
    power over this. This should be a decision that is made by the
    Federal Government based on all the information that is
    gathered. They should have every opportunity to weigh in on
    these issues.
        But the fee to trust issue is one that is very cumbersome.
        The Chairman. Thanks again for your testimony, thanks for
    your straight-up answers. I appreciate your being here.
        And thank you for being here too, Nathan Small. I have a
    few questions for you. Your testimony states that the township
    created by the 1918 Act included 120 acres, of which 111 acres
    are still held out of trust. Who currently owns the land within
    the town site? How much of the land does the tribe expect to
    acquire or place into trust in the near future, if in fact this
    bill is enacted?
        Mr. Small. I think that is some of the clarity that needs
    to be addressed. As I indicated, we are in the process of
    getting all that stuff together here, hopefully in the next few
    weeks or next few days we will have that information available
    on the clarity.
        There is a section right along where the 1966 work, where
    they did put it back into trust. But there is a little section
    right in between that and what is called the railroad tracks
    that is still out of trust. As I indicated, we are using some
    of that land already. We have been able to put our enterprises,
    offices are currently in that area right now. And as I
    indicated, there are other parcels, plots that are utilized by
    our tribal membership and our tribal government.
        Right now again, I just finally got the legal description
    of the land here, I finally got that and I was going to hand it
    off to Mr. Washburn. There is several sections in there where
    non-Indians have purchased land in there. Right now it is
    because of an agreement between the county and the tribes, we
    have both been taking care of the needs of the people in that
    area. And as I indicated, we provide most of the services to
    them already.
        The Chairman. How much of that 120 do you think you could
    get in? Let's say we got this bill signed by the 1st of July.
    How much of that 120, or actually 111 acres, do you have any
    projections for how much of that you could get in how quickly?
        Mr. Small. I think the information, once it is gathered up,
    we would be able to identify what is what out there. Right now
    it is kind of in a checkerboard situation. We have had, of
    course the BIA or Department or Interior wouldn't have any
    information on this, because it is not held in trust. So they
    are at a loss basically as to what this is all about. But the
    tribes and the county have been, for the past few years, really
    working diligently with each other, as indicated by Mr.
    Cladoosby here, that some counties do work with you. This
    Bingham County has really been a good county to work with, as
    opposed to some of the other counties within our reservation.
        The Chairman. That is good.
        One of the recommendations we have heard regarding a
    Carcieri fix is that we have to have requirements for certain
    off-reservation acquisitions. We should make the process for
    on-reservation acquisitions simpler. What has the Shoshone-
    Bannock Tribes' experience with the on-reservation trust
    acquisitions been?
        Mr. Small. When they first started this process of getting
    land into trust within the boundaries of the reservation, we
    had to go to the regional office and ask them what was the
    holdup. They told us there that, your superintendent can do
    that on his own. So we went back to our superintendent and
    asked him, why aren't you taking some of this land into trust.
    Finally, basically kicked him in the butt to say, you had
    better start moving on these lands within the boundaries of the
    reservation.
        After about 20 years, I think we got 20 acres back into
    trust. That is not a lot, but there is still a lot more land
    out there that needs to come back into trust within the
    boundaries of the reservation. Our tribe has been working with
    the Bonneville Power Administration in purchasing land together
    outside the boundaries of the reservation. We have putting
    those lands basically that are set aside to let those lands
    remain natural, so there is always that type of land we have
    been able to purchase outside the boundaries of the
    reservation.
        Then there are some lands that we are looking at to
    purchase within our original territories that are within the
    hunting districts of our reservation. We want to put our people
    out there soon. We have been working diligently on some of
    these things. When you have something that may prevent you from
    doing those kinds of things, I don't think it is right. It is
    our original homelands. If we have the ability to purchase
    those, why not.
        And it is not always for economic development. It is not
    always about gaming. There are some places that we purchase
    that we basically turn into wilderness areas, so that doesn't
    become a public place. You just want places to become natural
    or get back to its natural state.
        The Chairman. Thank you.
        Chairman Lowery, your testimony describes the importance of
    enacting the bill as soon as possible, as the lack of
    legislation would impact the settlement between the tribe and
    Fish Springs Ranch. Tell me what happens if the bill is not
    enacted.
        Mr. Lowery. If the bill is not enacted, the remaining
    amount of money of $3.6 million would not be given to the
    tribe. Fish Springs Ranch would not be protected. The tribe
    would pursue litigation if it was possible. If the lake was
    damaged in any way, the lake water surface would go below 3,712
    feet, somewhere in that area, it would probably impact the
    tribes. Those are the pending issues that are facing us right
    now.
        The Chairman. Chairman Lowery, this bill would ratify a
    settlement that address just a small portion of the tribe's
    overall water rights. Are there lessons that your tribe has
    learned that you can share with other tribes currently involved
    in water right disputes?
        Mr. Lowery. Yes. The Department of Justice and Interior
    representatives, when they are involved in the negotiation, you
    could solve those kinds of issues at certain times. The United
    States didn't bear any results from it, and we did not
    participate in the settlement negotiations.
        So there are good ways of solving things. Right now we are
    working on huge negotiations between California and Nevada and
    the five signators on the Truckee River agreements. So there
    are lessons to be learned if you can work through those and
    there are benefits. In Nevada, right now, locally, the Nevada
    people support the issue, because water is like gold out there.
    You need drinking water, you need operating water, you need
    ranch water. It is all there. So you have to work through all
    those issues as you face the whole issue of settlement.
        The Chairman. Water is getting to be like gold everywhere.
    And rightfully so.
        It is always good when the two primary stakeholders offer
    joint statements in support of the bill, as is the case here.
    Can you give us an idea how the settlement is viewed by other
    tribes or parties within Nevada?
        Mr. Lowery. In Nevada, the State of Nevada folks, they are
    in agreement with it. Locally the tribe itself is in agreement,
    supporting the issue of settlement. So it is all there in one
    package.
        The Chairman. Is anybody actively beating you up on it?
        Mr. Lowery. No. A couple of tribal people.
        [Laughter.]
        The Chairman. Chairman Sprague, can you give us an update
    on where your land acquisition case stands right now?
        Mr. Sprague. Yes, sir, Mr. Chairman. The Supreme Court has
    remanded our suit back to the U.S. District Court here in D.C.
    The case is still pending before the court and we don't have a
    timetable when that will be decided. As long as this lawsuit is
    still pending, it will continue to hang over our tribe with the
    uncertainty and local communities.
        The Chairman. So there is no time frame for the decision?
        Mr. Sprague. No, sir.
        The Chairman. Okay. The Gun Lake Band gained Federal
    recognition 16 years ago. Can you describe how the Carcieri
    decision has impacted your tribe?
        Mr. Sprague. The uncertainty of the land that current is in
    trust is what is most troubling to me and my tribe. It is in
    trust and we are doing what we are doing on it. But still, that
    cloud hangs over our head because of the legislation and this
    one individual. This is not a Carcieri fix for our tribe. This
    bill just reaffirms a strong decision made by the Federal
    Government in 2009. If this bill is passed, the Gun Lake Tribe
    will still be in the same position under Carcieri as every
    other tribe in the Country. We still have to show that we were
    under Federal jurisdiction in 1934 to get land put in trust,
    just like every other tribe. We are confident that we can meet
    these standards.
        The Chairman. Does the Band have any other pending land
    applications or plans to acquire more land?
        Mr. Sprague. Yes, sir, we do. We have several fee lands
    that are currently working with the Bureau of Indian Affairs to
    get in trust.
        The Chairman. Okay. I think that is about it, we are
    approaching vote time. I want to thank you all for your
    statement today. The record is going to remain open for two
    weeks. I encourage all stakeholders to submit written
    statements for the record. These are important issues, Carcieri
    is a huge issue. There is plenty of time to get your statements
    in, so I would appreciate it if you would do that. I think it
    could help us as we move this down the field.
        I appreciate you folks coming in, you all traveled a long
    way to get here. So we thank you for that. And with that, this
    hearing is adjourned.
        [Whereupon, at 3:46 p.m., the hearing was adjourned.]
                                A P P E N D I X

        Prepared Statement of Hon. Dean Heller, U.S. Senator from Nevada
        Chairman Tester and Vice-Chairman Barrasso, thank you for holding
    today's hearing. I am pleased to give my support for this bipartisan
    legislation to settle this water rights dispute and ratify this
    agreement between the Pyramid Lake Paiute Tribe and Fish Springs Ranch.
    It is an important component of future resource use plans in the
    Truckee Meadows and will provide long-term certainty for the region.
        I would also like to thank Pyramid Lake Paiute Tribal Chairman
    Elwood Lowery for being here today to testify in support of our bill.
    Chairman Lowery is a tireless advocate for the tribe, and it is a
    pleasure to have him here in Washington. I look forward to working
    closely with the tribe, Vidler Water Company, and my colleagues here in
    the Senate as we navigate this settlement into law.
        The legislation we are reviewing today authorizes, ratifies, and
    confirms a settlement which was agreed to in 2007 between the Pyramid
    Lake Paiute Tribe and Fish Springs Ranch. This legislation and
    agreement represents many years of hard work to resolve these parties'
    dispute over water rights in connection with the pumping and transport
    of groundwater from the Honey Lake Valley Basin to the suburban Stead/
    Lemmon Valley area north of Reno, NV.
        In Nevada, water is a precious resource, and as you may be aware,
    the West is currently experiencing a severe drought. Given these
    circumstances, this ongoing water-rights dispute between these parties
    has been a source of contention. That said, I am pleased that both the
    Pyramid Lake Paiute Tribe and the Vidler Water Company, managing
    partner for Fish Springs Ranch, have come together to settle this
    dispute in a mutually beneficial manner.
        The agreement this legislation would authorize and ratify provides
    that the Tribe would not challenge Fish Springs' water rights and would
    waive potential claims of damages, and in return, the Tribe would
    receive $3.6 million plus interest from January 8, 2007 from Fish
    Springs Ranch. It is important to note that this settlement has no
    direct cost to the Federal Government and ends a pending lawsuit
    against the Department of the Interior.
        Given that this agreement terminates at the end of next year, I
    urge my colleagues to support our Congressional Delegation's efforts to
    move this legislation this year. It truly is a win-win for all parties
    involved. Thank you again Chairman Tester and Vice-Chairman Barrasso
    for the opportunity to testify, and I look forward to working with you
    to advance this important Northern Nevada legislation.
                                     ______

        Prepared Statement of Hon. Dianne Feinstein, U.S. Senator from
                                   California
        Chairman Tester and Vice-Chairman Barrasso, I am submitting this
    statement to the Committee to express my support for a Carcieri fix,
    but also to reiterate my view that any such fix must include reasonable
    restrictions on off-reservation gaming and requirements for tribes and
    local communities to work together to mitigate its effects.
        As I have stated before, I do not question the need for a Carcieri
    fix, but S. 2188, as written, leaves important gaming-related issues
    unaddressed--issues that affect California significantly.
        The scale of the tribal gaming industry in California is
    staggering:

       The American Gaming Association reported last year that
            there are 466 tribal casinos across 28 states--California alone
            has 70 (15 percent), second only to Oklahoma.

       California has the highest number of tribal casino gaming
            machines in the nation--more than 68,300. After Oklahoma, the
            next state on the list only has about 28,000.

       According to Meister's 2014 Indian Gaming Industry Report,
            California's tribal casinos generated nearly $7 billion in
            total revenues in 2012.

        This is not what California envisioned when its voters passed a
    state ballot measure in 2000--Proposition 1A--whereby voters agreed
    that tribal gaming should be restricted to ``Indian lands.''
        Voters that supported Proposition 1A could not have contemplated
    ``Indian lands'' to mean any land that tribes are able to purchase and
    put into trust regardless of connection to and distance from the
    tribes' original reservation lands.
        However, it is clear that tribes are no longer content with casinos
    on reservation lands. It is my view that these tribes are directly
    contradicting Proposition 1A when they purchase non-contiguous lands,
    often many miles away from their reservations, for the express purpose
    of building more casinos. For example:

       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.

        In my previous testimony to the Committee, I have also pointed out
    that the issue is not confined to California. Wisconsin, Arizona,
    Michigan, Oregon, and Washington have all experienced such instances of
    ``reservation shopping.''
        Reservation shopping invariably causes conflicts with local
    communities in the vicinity of the acquired lands.
        Large casinos often draw on local resources, including increased
    costs for police, fire, water, sewer, and transportation.
        However, when a tribe builds a casino on trust lands, it has no
    legal obligation to mitigate effects on local communities, and the
    Department of the Interior also has no obligation to address local
    concerns.
        The most troubling aspect is that these casinos are moving closer
    and closer to urban centers to increase profits.
        Previous research has shown that new casinos are associated with a
    10 percent increase in violent crime and bankruptcy rates in the area.
    Additionally, new casinos dramatically increase the rate of problem-
    gambling and gambling addictions in local communities.
        Furthermore, according to a 2013 report produced by the Institute
    for American Values, new casinos are primarily filled with modern slot
    machines that give players a sense of winning; however, they are
    deliberately designed to take in more than they pay out.
        People who play such slots as their primary form of gambling are
    more likely to become problem gamblers. This is of special concern for
    senior citizens and people on fixed incomes that use their limited
    means to support gambling.
        I understand the intent of a Carcieri fix--tribes recognized before
    the 1934 Indian Reorganization Act should not have more rights than
    their counterparts that were recognized after 1934.
        However, any Carcieri fix must address concerns about tribal
    gaming, and must provide local governments a meaningful way to
    influence the terms and conditions of new casino developments in their
    backyards.
        I strongly urge the Committee to incorporate reforms to the process
    of taking lands into trust for gaming purposes. These reforms include:

       More stringent criteria to restrict which lands Indian
            tribes can apply to take into trust for gaming purposes.

       Permanent prohibition of gaming facilities on lands taken
            into trust for non-gaming purposes.

       Requirement for tribes to mitigate jurisdictional conflicts
            and effects as a condition for trust acquisitions for gaming.

       Longer notice and comment periods for local governments to
            provide their perspectives, and requirement that the Department
            of the Interior consider their input before finalizing a
            decision.

        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.
        It is my firm belief that casinos should not be built at the
    expense of our local communities' resources, safety, and quality of
    life.
        I urge you to support and develop a more comprehensive Carcieri fix
    that would allow for these concerns to be addressed.
        Thank you for your leadership, and I look forward to working with
    you to solve these issues and to pass a Carcieri fix soon.
                                     ______

        Prepared Statement of Hon. Harry Reid, U.S. Senator from Nevada
        Thank you Chairman Tester and Senator Barrasso for the opportunity
    to submit testimony on this bipartisan bill that will allow an
    important tribal water settlement in Nevada to move forward.
        Last December, I sponsored the Pyramid Lake-Fish Springs Ranch
    Settlement Act with my colleague Senator Heller and Representatives
    Amodei and Horsford have sponsored the identical House version of the
    legislation. I would like to take this opportunity to thank my
    colleagues for their willingness to work together on this commonsense
    legislation.
        The legislation is simple. It authorizes and ratifies a settlement
    bringing an end to a water rights dispute between two independent
    parties--the Pyramid Lake Paiute Tribe and Fish Springs Ranch, LLC. The
    legislation would allow the Tribe to collect over $4 million from Fish
    Springs Ranch without costing the taxpayers anything or requiring any
    action of the Department of the Interior. This bill recognizes the time
    and effort that both the Tribe and Fish Springs Ranch have dedicated to
    finding a solution to this dispute and allows their negotiated solution
    to be enacted.
        Back in 2005, the Bureau of Land Management (BLM) finalized an
    Environmental Impact Statement (EIS) on several groundwater projects,
    including Fish Springs Ranch, LLC's groundwater project in the Honey
    Lake Valley for growth in an area just north of Reno, Nevada. The BLM
    signed a Record of Decision (ROD) that allowed the project to move
    forward, but there was evidence of a significant impact on the water
    level of Pyramid Lake. The lake is the home of the Pyramid Lake Paiute
    Tribe, one of only three desert terminus lakes in North America, vital
    habitat for the endangered cui-ui and threatened Lahontan cutthroat
    trout, and a major part of the Tribe's economy.
        The Tribe filed suit against the BLM and the Federal District Court
    granted the Tribe an injunction. At that time, the Tribe and Fish
    Springs Ranch entered into negotiations securing an agreement in 2007
    and have since been working on a supplement that was finalized in
    September of last year. The agreement is that the construction of the
    Fish Springs Ranch project would be allowed to move forward in return
    for two payments $3.6 million (plus interest since 2007) and the
    transfer of several thousand acres of land to the Tribe. The Tribe
    would then waive the claims against Fish Springs Ranch for impacts or
    injuries to existing and claimed Tribal water rights for this project.
    The Tribe would also drop the claims against the BLM. Several parts of
    this settlement have already been implemented, including the transfer
    of land and the first $3.6 million payment to the Tribe.
        For the settlement to be implemented in full, however, the United
    States must authorize the Tribe to waive their claims and ensure that
    the U.S. does not take action against Fish Springs on behalf of the
    Tribe after enacting the full settlement. The legislation would allow
    the Tribe to waive their claims, prohibit the U.S. from taking action
    on behalf of the Tribe after the agreement is enacted and release the
    U.S. from liability for the Tribe's waived claims.
        This legislation is supported by both the Tribe and Fish Springs
    Ranch and I urge the committee to act swiftly to endorse the agreement
    made by the parties.
        I look forward to working with the Senate Indian Affairs Committee
    to move this bill forward. I request that my statement be included in
    the record.
                                     ______

      Prepared Statement of Matthew Cate, Executive Director, California
                         State Association of Counties
        Dear Chairman Tester and Vice Chairman Barrasso:
        On behalf of the California State Association of Counties (CSAC), I
    am pleased to submit this statement for the record in connection with
    the Committee's May 7, 2014 legislative hearing on several bills,
    including S. 2188, which would provide the Secretary of the Interior
    with authority to take land into trust for all Indian tribes.
        As you are aware, Napa County Supervisor Diane Dillon appeared
    before your Committee on November 20, 2013 to provide CSAC's
    perspective on the significance of the U.S. Supreme Court's decision in
    Carcieri v. Salazar. This statement is intended to supplement that
    particular testimony. Additionally, our statement addresses comments
    made by Assistant Secretary-Indian Affairs Kevin Washburn at the May 7,
    2014 hearing.
        As CSAC has consistently stated in previous testimony and in
    correspondence to the Committee, our association supports the rights of
    Indian tribes to self-governance and recognizes the need for tribes to
    preserve their heritage and to pursue economic selfreliance. At the
    same time, however, we do not believe that the Secretary should have
    unbridled authority to take land into trust for tribes under a broken
    fee-to-trust system.
        Unfortunately, the ``clean fix'' approach--as embodied in S 2188
    and in other current and previous legislative proposals--fails to
    consider the major deficiencies in the fee-to-trust process and would
    only perpetuate the problems that have resulted in years of expensive
    and unproductive conflict between tribes and local governments. CSAC
    therefore would like to continue to work with the Committee, members of
    our congressional delegation, and tribes to find a lasting solution
    that fixes the inequities caused by the Supreme Court's Carcieri
    decision, as well as the current systemic flaws in the fee-to-trust
    process.
        As you know, we believe such a solution lies in a package of
    broader trust reforms, consistent with the original intent of the IRA
    and which would provide clear and enforceable trust acquisition
    standards. In addition to standards, we believe legislation must
    address the fact that the current process lacks sufficient notification
    requirements. In many instances, local governments are afforded
    limited, and often late, notice of pending trust land applications.
    Accordingly, legislative changes need to be made to ensure that
    affected governments receive timely notice of fee-to-trust applications
    for tribal development projects and have adequate opportunity to
    provide meaningful input.
        CSAC also believes it is essential that legislation provide
    incentives for intergovernmental agreements between tribes and local
    governments to provide mitigation for adverse impacts of development
    projects, including environmental and economic impacts from the
    transfer of the land into trust. When land is placed into trust, the
    property no longer falls under the auspices of local land use
    jurisdiction, and the land is no longer subject to local taxing
    authority; however, local governments are still required to provide
    essential services, such as road construction, law enforcement, and
    welfare services. In these difficult economic times, local governments
    are struggling financially to continue to provide these critical
    services. Intergovernmental agreements to mitigate these costs would be
    beneficial for both tribal and local governments.
        In our view, a balanced trust reform proposal would extend trust
    land acquisition authority to the Secretary for federally recognized
    tribes and would include clear direction to: (1) provide adequate
    notice to local governments, (2) ensure that local governments are
    consulted and have adequate opportunity to comment, (3) provide
    incentives for tribes and local governments to work together, and (4)
    provide for cooperating agreements that are enforceable. Attached to
    this statement is specific legislative language developed by CSAC and
    which has been previously provided to the Committee.
        Finally, we would like to comment on a statement made by Assistant
    Secretary Washburn during the May 7 hearing. In response to a question
    from Vice Chairman Barrasso about the process for trust acquisitions,
    Mr. Washburn indicated that the Department's recent Patchak regulations
    ``gave greater process to counties and local governments that are
    interested in these issues and ensured better notice to them.''
        While the rule provides for public notice to jurisdictional local
    governments and other interested parties relative to an official
    decision to acquire land into trust, we believe that the Department's
    Patchak rule expedites trust land approvals to the detriment of all
    interested parties and to the administrative process itself. In fact,
    the rule puts local governments in a 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. For a more complete look at
    CSAC's views on Patchak, please see the attached comment letter.
        We also would note that the Department's Patchak rule addresses the
    process for appeals of final or near-final land acquisition decisions
    and does not provide the type of critically important front-end fee-to-
    trust process reforms that CSAC believes are necessary. Again, these
    reforms should be addressed in legislation and should be a requisite
    component of any potential Carcieri ``fix'' bill.
        Thank you for considering our views regarding this very important
    matter. CSAC remains committed to continuing to work with Congress to
    develop a fee-to-trust process that balances the needs of both tribal
    and local governments.
        Attachments
                   Comprehensive Fee-To-Trust Reform Proposal
    Section 5 of the Indian Reorganization Act, 25 U.S.C.  465
        The Secretary of the Interior is authorized, in his discretion, to
    acquire, through purchase, relinquishment, gift, exchange, or
    assignment, any interest in lands, water rights, or surface rights to
    lands, within or without existing reservations, including trust or
    otherwise restricted allotments, whether the allottee be living or
    deceased, for the purpose of providing land for Indians.
        For the acquisition of such lands, interests in lands, water
    rights, and surface rights, and for expenses incident to such
    acquisition, there is authorized to be appropriated, out of any funds
    in the Treasury not otherwise appropriated, a sum not to exceed
    $2,000,000 in any one fiscal year: Provided, that no part of such funds
    shall be used to acquire additional land outside of the exterior
    boundaries of Navajo Indian Reservation for the Navajo Indians in
    Arizona, nor in New Mexico, in the event that legislation to define the
    exterior boundaries of the Navajo Indian Reservation in New Mexico, and
    for other purposes, or similar legislation, becomes law.
        The unexpended balances of any appropriations made pursuant to this
    section shall remain available until expended.
        Title to any lands or rights acquired pursuant to this Act or the
    Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.)
    shall be taken in the name of the United States in trust for the Indian
    tribe or individual Indian for which the land is acquired, and such
    lands or rights shall be exempt from State and local taxation.
        The Secretary may acquire land in trust pursuant to this section
    where the applicant has identified a specific use of the land and:

        (a) the Indian tribe or individual Indian applicant has executed
    enforceable agreements with each jurisdictional local government
    addressing the impacts of the proposed trust acquisition; or

        (b) in the absence of the agreements identified in subsection (a):

             (1) the Indian tribe or individual Indian demonstrates, and
            the Secretary determines, that:

               (A) the land will be used for non-economic purposes,
            including for religious, cultural, tribal housing, or
            governmental facilities, and the applicant lacks sufficient
            trust land for that purpose; or

               (B) the land will be used for economic or gaming purposes
            and the applicant has not achieved economic self-sufficiency
            and lacks sufficient trust land for that purpose; and

             (2) the Secretary determines, after consulting with
            appropriate state and local officials, that the acquisition
            would not be detrimental to the surrounding community and that
            all significant jurisdictional conflicts and impacts, including
            increased costs of services, lost revenues, and environmental
            impacts, have been mitigated to the extent practicable.

        (c) notice and a copy of any application, partial or complete, to
    have land acquired in trust shall be provided by the Secretary to the
    State and affected local government units within twenty (20) days of
    receipt of the application, or of any supplement to it. The Secretary
    shall provide affected local governmental units at least ninety (90)
    days to submit comments from receipt of notice and a copy of the
    complete application to have land acquired in trust.

        (d) a material change in use of existing tribal trust land that
    significantly increases impacts, including gaming or gaming-related
    uses, shall require approval of the Secretary under this section, and
    satisfy the requirements of the National Environmental Policy Act, 42
    U.S.C.  4321 et seq., and, if applicable, the Indian Gaming Regulatory
    Act, 25 U.S.C.  2701 et seq.;

             (1) the Secretary shall notify the State and affected local
            government units within twenty (20) days of any change in use
            in trust land initiated by an applicant under this subsection.

             (2) as soon as practicable following any change in use in
            trust land initiated prior to review and approval under this
            section, the Secretary shall take steps to stop the new use,
            including suit in federal court, upon application by an
            affected local government;

             (3) any person may file an action under 5 U.S.C.  701 et seq.
            to compel the Secretary to enjoin any change in use in trust
            land initiated prior to review and approval under this section.

        (e) notwithstanding any other provisions of law, the Secretary is
    authorized to include restrictions on use in the deed transferred to
    the United States to hold land in trust for the benefit of the Indian
    tribe or individual Indian and shall consider restricting use in cases
    involving significant jurisdictional and land use conflicts upon
    application of governments having jurisdiction over the land;

        (f) any agreement executed pursuant to subsection (a) of this
    section shall be deemed approved by the Secretary and enforceable
    according to the terms of the agreement upon acquisition in trust of
    land by the Secretary;

        (g) the Secretary shall promulgate regulations implementing these
    amendments within 365 days of enactment.

                       California State Association of Counties
                                                          July 24, 2013
    Ms. Elizabeth Appel,
    Office of Regulatory Affairs & Collaborative Action,
    United States Department of the Interior,
    1849 C Street, NW,
    Washington, DC.
       Re: Federal Fee-to-Trust Process and BIA Proposed Rule,
           ``Land Acquisitions and Appeals of Land Acquisition
     Decisions,'' 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15

    Dear Ms. Appel:

        On behalf of the California State Association of Counties (CSAC), I
    am writing to express our strong concerns regarding the proposed rule
    identified above, and the continued need for comprehensive reform of
    the fee-to-trust process. Established in 1895, CSAC is the unified
    voice on behalf of all 58 counties in California. Governed by elected
    county supervisors, CSAC is a non-profit corporation dedicated to
    representing California county governments before the federal
    government, administrative agencies, and the California Legislature. We
    appreciate this opportunity to comment on the Proposed Rule and the
    fee-to-trust process.
        Since 1994, CSAC has sought to correct long-standing deficiencies
    in the fee-to-trust process that have resulted in expensive,
    unproductive, and unnecessary conflict between tribes and local
    governments. Jurisdiction over land is just as critical for counties as
    it is for tribes, and the loss of sovereignty results in irreparable
    harms to counties, including the loss of land use and regulatory
    authority, tax revenue, and investment in nearby development and
    infrastructure. The crucial role of counties demands a process that
    provides sufficient notice to stakeholders, clear and enforceable
    standards for fee-to-trust decisions, and a requirement that tribes
    negotiate intergovernmental agreements that mitigate adverse impacts
    and build relationships with affected communities.
        The need for a comprehensive solution was 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-attackpatchak- patch-149514.
    ---------------------------------------------------------------------------
        The Proposed Rule appears intended to expedite trust approvals to
    the detriment of all interested parties, and to the administrative
    process itself. The Proposed Rule incorrectly asserts that because of
    the decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
    Patchak (2012) 132 S.Ct. 2199 (Patchak), eliminating the current 30-day
    wait period (see Section 151.12(b)) would not effect a change in the
    law or affect any parties' rights under current law. In fact, as set
    forth below, the Proposed Rule would put 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 Proposed Rule fails to recognize that the facts on the ground
    and balance of equities changes when land achieves trust status and
    development commences. The Proposed Rule directs the Secretary or other
    BIA official to ``[p]romptly 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 Proposed Rule also contravenes protections in the
    Administrative Procedures Act (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 Proposed 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
    Proposed Rule.
        The BIA's new 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, and Senator Dianne
    Feinstein and others have correctly raised strong concerns about the
    Department's practical ability to unwind a trust decision and remove
    land from trust. \6\ The Proposed Rule ignores these concerns, and
    includes no procedure for undoing a trust decision in a transparent and
    orderly manner.
    ---------------------------------------------------------------------------
        \6\ See Letter from Senator Dianne Feinstein to Secretary Ken
    Salazar, January 31, 2013, p. 2.
    ---------------------------------------------------------------------------
        The Department should not pretend that these harms are balanced by
    the proposed requirements regarding the notification of decisions and
    administrative appeal rights. These proposed changes are equally
    flawed; the Proposed Rule would require 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 Proposed Rule
    would make the process even more opaque and participation more
    difficult in the future.
        CSAC supports a new paradigm in which counties are considered
    meaningful and constructive stakeholders by the BIA in Indian land-
    related determinations. CSAC and its member counties would strongly
    support a revision to the Proposed Rule to provide immediate notice and
    full information upon filing of trust applications, establish clear and
    specific trust acquisition standards, create a mechanism for the BIA to
    consult with counties and respond to comments on trust applications,
    and ensure that adverse impacts are addressed through intergovernmental
    agreements. CSAC believes these measures represent a real and lasting
    solution that would reduce conflict and controversy, to the benefit of
    tribes and all other parties.
        If the Department instead intends to proceed with the Proposed
    Rule's ``quick fix,'' CSAC recommends the following changes:

       An additional regulation in Part 151 providing that, when a
            party has appealed a trust decision to the Interior Board of
            Indian Appeals, or has appeared before the Assistant
            Secretary--Indian Affairs, the party shall be entitled upon
            timely request to an automatic 30 day stay of a decision
            approving a trust application. This would enable the party to
            preserve its rights by seeking a judicial order staying the
            effectiveness of any approval decision 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. Parties
            should be exempt from exhaustion requirements in the absence of
            substantial compliance with these provisions.

        Thank you for considering these comments.
            Sincerely,
                                                  Matthew Cate,
                                                    Executive Director.
                                     ______

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       Response to Written Questions Submitted by Hon. Lisa Murkowski to
                              Hon. Kevin Washburn

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