[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

                               __________

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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

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                                                                   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.
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    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.
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    \6\ See Letter from Senator Dianne Feinstein to Secretary Ken 
Salazar, January 31, 2013, p. 2.
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    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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