[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
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MAY 7, 2014
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JON TESTER, Montana, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota JOHN McCAIN, Arizona
MARIA CANTWELL, Washington LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota MIKE CRAPO, Idaho
MARK BEGICH, Alaska DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
Mary J. Pavel, Majority Staff Director and Chief Counsel
Rhonda Harjo, Minority Deputy Chief Counsel
C O N T E N T S
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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
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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.
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\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).
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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).
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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).
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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.
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\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.''
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The Patchak Decision Encourages Litigation to Undermine Settled
Expectations
In the Patchak decision, the Supreme Court held that a litigant may
file suit challenging the Secretary's authority to acquire land in
trust for a tribe under the Administrative Procedure Act, even after
the land is held in trust. The Court reached this decision,
notwithstanding the widely-held view that Congress had prohibited these
types of lawsuits through the Quiet Title Act, which states:
(a) The United States may be named as a party defendant in a
civil action under this section to adjudicate a disputed title
to real property in which the United States claims an interest,
other than a security interest or water rights. This section
does not apply to trust or restricted Indian lands. . .
28 U.S.C. 2409a (emphasis added).
As a result of the Court's reading of this provision, lawsuits
could potentially reverse trust acquisitions many years after the fact,
and divest the United States of its title to the property.
The majority in Patchak failed to consider--or even recognize--the
extreme result that its opinion made possible. Divesting the United
States of trust title not only frustrates tribal economic development
efforts on the land at issue; more critically, it creates the specter
of uncertainty as to the applicable criminal and civil jurisdiction on
the land and the operation of tribal and federal programs there.
Before the Patchak decision, the Secretary's decision to place a
parcel of land into trust could be challenged only prior to the
finalization of the trust acquisition. The Department had adopted
provisions in its regulations governing the trust acquisition process
which ensured that interested parties had an opportunity to seek
judicial review. It was the Department's general practice to wait to
complete a trust acquisition until the resolution of all legal
challenges brought in compliance with the process contemplated by the
Department's regulations. This allowed all interested parties,
including those who wished to challenge a particular acquisition, to
move forward with a sense of certainty and finality once a trust
acquisition was completed.
Certainty of title is important. It provides tribes, the United
States and state and local governments with the clarity needed to carry
out each sovereign's respective obligations, such as law enforcement.
Moreover, such certainty is pivotal to a tribe's ability to provide
essential government services to its citizens, such as housing,
education, health care, to foster business relationships, to attract
investors, and to promote tribal economies.
Once a trust acquisition is finalized and title transferred in the
name of the United States, tribes and the United States should be able
to depend on the status of the land and the scope of the authority over
the land. Tribes must have confidence that their land cannot be
forcibly taken out of trust once the government has made a final
decision.
Conclusion
The Secretary's authority to acquire lands in trust for all Indian
tribes, and certainty concerning the status of and jurisdiction over
Indian lands after such acquisitions into trust, touch the core of the
federal trust responsibility. The power to acquire lands in trust, and
certainty that such land remain in trust, is an essential tool for the
United States to effectuate its longstanding policy of fostering tribal
self-determination. A system in which some federally recognized tribes
cannot enjoy the same rights and privileges available to other
federally recognized tribes is unacceptable. The Department supports S.
1603. In addition, this Administration supports legislative solutions
that make clear the Secretary's authority to fulfill her obligations
under the Indian Reorganization Act for all federally recognized
tribes.
S. 1818
Chairman Tester, Vice Chair Barrasso, and Members of the Committee,
my name is Kevin Washburn and I am the Assistant Secretary for Indian
Affairs at the Department of the Interior (Department). Thank you for
the opportunity to present testimony for the Department on S. 1818, the
Pyramid Lake Paiute Tribe--Fish Springs Ranch Settlement Act, which
would authorize and ratify a settlement agreement negotiated by the
Pyramid Lake Paiute Tribe (Tribe) and Fish Springs Ranch LLC (Fish
Springs), resolve litigation brought by the Tribe against the Bureau of
Land Management (BLM), and relieve the United States of any potential
liability related to the settlement. The Department does not object to
S. 1818.
Background
In 2006, the Tribe filed a lawsuit in the federal District Court
challenging a Bureau of Land Management (BLM) decision to grant to Fish
Springs a right-of-way across federal land for the construction of a
groundwater transmission pipeline. In March 2007, the District Court
granted the Tribe's motion for a preliminary injunction and enjoined
construction related to the pipeline. At this time, the Tribe and Fish
Springs began settlement discussions.
In May 2007, the Tribe and Fish Springs entered into a settlement
agreement (Original Agreement). Under the Original Agreement, in
consideration of $3.6 million, the transfer of over 6,200 acres of
land, and other benefits provided by Fish Springs, the Tribe petitioned
the District Court to dissolve the preliminary injunction and stay
proceedings in the case against BLM. This allowed Fish Springs to
construct the pipeline and begin pumping groundwater according to terms
agreed upon by the Tribe and Fish Springs.
In 2013, the Tribe and Fish Springs entered into a Supplement to
the Original Agreement (Supplemental Agreement) whereby Fish Springs
and the Tribe agreed to seek legislation to settle all claims, if any,
of the Tribe and the United States on behalf of the Tribe and its
members for impacts or injuries to existing and claimed tribal water
rights and injuries to tribal trust resources related to groundwater
pumping by Fish Springs. This includes final resolution of the Tribe's
lawsuit against BLM. Upon enactment of this legislation, Fish Springs
will provide an additional $3.6 million, plus accrued interest, to the
Tribe.
S. 1818
Section 3 of S. 1818 would authorize and ratify the Supplemental
Agreement entered into by the Tribe and Fish Springs.
Section 4 of S. 1818 includes waivers and releases of claims by the
Tribe against both Fish Springs and the United States. S. 1818 would
authorize the Tribe to waive claims against Fish Springs and to
subordinate its existing and claimed water rights to the Fish Springs
project. The Tribe would also waive claims against the United States,
including claims related to: BLM's approval of the Fish Springs
project; injuries to the Tribe's trust and reserved resources related
to the project; and the negotiation of the Original Agreement, the
Supplemental Agreement, and the implementing legislation. Rather than
requiring the Department to sign waivers of claims, S. 1818 would
extinguish any claims that the United States could bring on behalf of
the Tribe and its members to the same extent that those claims are
waived by the Tribe.
S. 1818 would ratify an agreement negotiated by the Tribe and Fish
Springs. In addition, it would resolve litigation against the BLM and
relieve United States of any potential liability related to the Fish
Springs project, the Original Agreement, the Supplemental Agreement,
and the implementing legislation. S. 1818 would provide these benefits
without any appropriation.
The Original Agreement and the Supplemental Agreement reflect a
creative and cooperative approach by the Tribe and Fish Springs to
resolve a dispute regarding Fish Springs' use of groundwater and the
potential effect to the Tribe's interests. These agreements were
negotiated without the involvement of the Department.
Therefore, the Department does not object to S. 1818.
S. 2040
Chairman Tester, Vice-Chairman Barrasso, and Members of the
Committee, my name is Kevin Washburn and I am the Assistant Secretary--
Indian Affairs at the Department of the Interior (Department). Thank
you for the opportunity to testify on S. 2040, the Blackfoot River Land
Exchange Act of 2014, a bill to exchange trust and fee land to resolve
land disputes created by the realignment of the Blackfoot River along
the boundary of the Fort Hall Indian Reservation.
The Department supports S. 2040.
Background
In 1867, the Fort Hall Indian Reservation was created by Executive
Order for various Bands of the Shoshone and Bannock Indians. Pursuant
to the Executive Order, the Blackfoot River, as it existed in its
natural state, formed the northern boundary of the Reservation. In the
1960's, the United States Anny Corps of Engineers (Army Corps)
completed a flood control project along the Blackfoot River. The
project consisted of constructing levees, replacing irrigation
diversion structures, replacing bridges and channel realignment.
While the flood control project did not change the original
boundaries of the Reservation, it realigned portions of the Blackfoot
River. Thus, after the Anny Corps completed the project, individually-
Indian owned and Indian lands (approximately 37.04 acres) ended up on
the north side of the realigned River, and non-Indian owned lands
(approximately 31.01 acres) ended up on the south side of the realigned
River. Over the years, these parcels of land have remained idle because
the landowners could not gain access to the parcels of land without
trespassing or seeking rights-of-way across the lands of other owners.
In the late 1980's, the Snake River Basin Adjudication (SRBA) began
to decree water rights on all streams and rivers within the Snake River
basin in Idaho, which includes the Blackfoot River basin. During SRBA,
several non-Indian landowners, whose lands were affected by the
realignment of Blackfoot River, claimed as their water rights' place of
use lands on the Fort Hall Indian Reservation.
The Shoshone-Bannock Tribes (Tribes) filed objections to these
water right claims. The United States did not file objections on behalf
of the Tribes, but has been closely working with the Tribes and
monitoring these and related water right claims in the SRBA. Thus,
resolution of the land ownership issues along the realigned portions of
the Blackfoot River could resolve related water rights claim in the
SRBA.
S. 2040
The primary features of S. 2040 are to:
authorize the United States to take certain non-Indian lands
into trust on behalf of the Shoshone-Bannock Tribes in Idaho;
authorize the United States to convey certain Indian lands
into fee lands;
extinguish certain claims that potentially could be asserted
by the Shoshone-Bannock Tribes against the United States;
The Department supports the exchange of these lands because this
exchange will enable the general stream adjudication of the Snake River
to be concluded without interfering with the water rights claims of
either party. The Department reviewed similar legislation in 2010 and
that legislation had several provisions that the Administration could
not support. The Department congratulates the Shoshone-Bannock Tribes
and the parties on improving this legislation, and thanks Senator Crapo
and Senator Risch for working with to remove those provisions that the
Administration could not support.
Thank you for the opportunity to present the Department's views on
S. 2040.
S. 2041
Chairman Tester, Vice-Chairman Barrasso, and Members of the
Committee, my name is Kevin Washburn and I am the Assistant Secretary--
Indian Affairs at the Department of the Interior (Department). Thank
you for the opportunity to testify on S. 2041, the May 31, 1918 Act
Repeal Act, a bill to repeal the Act of May 31, 1918. The Department
does not have a position on S. 2041.
Background
In 1867, the Fort Hall Indian Reservation was created by Executive
Order for various Bands of the Shoshone and Bannock Indians (Tribe). On
May 31, 1918, Congress passed a bill to authorize the establishment of
a town site on the Fort Hall Indian Reservation in Idaho. The Act of
1918 authorized the Secretary of the Interior to set aside and reserve
for town-site purposes a tract of land within the Fort Hall Indian
Reservation. The Act of 1918 also authorized the Secretary of the
Interior to set apart and reserve for school, park, and other public
purposes not more than ten acres in such town site on the condition
that Indian children shall be permitted to attend the public schools of
such town under the same conditions as white children.
The Act of 1918 further authorized the Secretary of the Interior to
appraise and dispose of the lots within such town site and provided
that any expenses in connection with the survey, appraisement, and
should be reimbursed from the sales of town lots, and the net proceeds
should be placed in the Treasury of the United States to the credit of
the Tribe and would be subject to appropriation by Congress for the
Tribe's benefit. Finally, the Act of 1918 provided that any lands
disposed of under the Act of 1918 would be subject to all the laws of
the United States and prohibited the introduction of intoxicants into
the Indian country until otherwise provided by Congress.
The Bureau of Indian Affairs' Northwest Regional office is working
with the Tribe to get an accurate determination of the number of acres
that are included in the townsite area and to determine the actual
ownership of the lots in the townsite. Currently the BIA's Northwest
Regional office is in receipt of fee-to-trust applications from the
Tribe and one fee-to-trust application from a member of the Tribe for
lands located within the township.
The Department is aware that the Tribe acquired ownership of the
Fort Hall Water and Sewer District in 2000 and the Tribe has extended
and improved this system several times over the past 14 years. The Fort
Hall Water and Sewer District was operated by a group of citizens that
resided within the townsite, but were unable to continue to operate
this system financially. The waterlines, pump stations, and lifts,
along with their main water structure are part of the structures that
are owned by the Tribe. There are a few lots that were originally part
of the school reserve and remain reserved for that purpose.
S. 2041
The primary features of S. 2041 are to:
repeal the Act of May 31, 1918 (which authorized the
Secretary of the Interior to set aside and reserve a tract of
land within the Fort Hall Indian Reservation, Idaho, for town-
site purposes),
gives the Shoshone-Bannock Tribes of the Fort Hall Indian
Reservation the exclusive right of first refusal to purchase at
fair market value any land set aside or apart under the Act of
1918 and such lands are offered for sale,
directs the Secretary of the Interior to place lands in
trust for the Tribe or a member of the Tribe where the lands
subject to the Act of 1918, were (1) acquired before enactment
of S. 2041, and (2) are acquired on or after the enactment of
S. 2041 that is set aside or apart under the Act of 1918.
The Department supports the aims of S. 2041. The Department would
like to work with the Tribe and the sponsors of the legislation to gain
more background information on the status of the lands covered by the
Act of May 31, 1918, and obtain current ownership information of the
subject lands by the Tribe and members of the Tribe. For clarity, the
Department prefers such legislation include the legal descriptions of
the affected land. This insures that the Department understands the
will of Congress and can execute the law effectively.
Thank you for the opportunity to testify on S. 2041.
S. 2188
``But there's more we can do to return more control to your
communities. . . .
It's why we'll keep pushing Congress to pass the Carcieri fix,
so that more tribal nations can put their land into federal
trust.''
--President Barack Obama, Nov. 2013.
I. Introduction
Chairman Tester, Vice Chairman Barrasso, and Members of the
Committee, my name is Kevin Washburn and I am the Assistant Secretary
for Indian Affairs at the Department of the Interior. Thank you for the
opportunity to present the views of the Department of the Interior on
S. 2188, a bill ``to amend the Act of June 18, 1934, to reaffirm the
authority of the Secretary of the Interior to take land into trust for
Indian tribes.''
Since 2009, the Obama Administration has consistently expressed
strong support for a legislative solution to the Carcieri decision.
Since FY 2012, the President has repeatedly included language to
address the Carcieri decision in the Budget, reflecting this
Administration's position for a legislative solution to resolve this
issue. Secretary Sally Jewell has reaffirmed the need for a legislative
solution, stating ``[t]he Carcieri decision represents a step back
toward misguided policies of a century ago and is wholly inconsistent
with the United States' long-standing policy of self-governance and
self-determination.'' S. 2188 is consistent with the President's Budget
and I am here today to express the Administration's strong support for
S. 2188.
In a time of limited resources, the Carcieri decision exacerbates
the challenges we are tackling in Indian country. Tribal dollars that
had been used to protect children and elders, provide housing and
water, or protect tribal cultural sites are instead expended to jump
through hoops created by Carcieri. These judicially created hoops pull
the Department's resources away from some of the fundamental priorities
of this Administration and this Committee--education, social services,
energy and economic development. S. 2188 alleviates these costs without
any increase in the federal budget and restores the regular order of
decision making that existed for decades before the Carcieri decision.
As I testified last year, we characterize homeownership as the
American dream and the fee-to-trust process is about ensuring that
tribes have homelands. S. 2188 ensures that no tribe is denied that
dream because of Carcieri. This Administration has worked hard to
ensure that tribes have homelands for their people. Since 2009, the
Department has acted on over 1,500 applications and accepted
approximately 248,000 acres in trust for tribes. The vast majority of
these acquisitions were for agricultural, governmental, housing and
economic development purposes--only 7were for gaming. S. 2188 will
clarify the Department's authority to ensure that all tribes have
homelands for their people, thereby eliminating the costs imposed by
Carcieri for both tribes and the public.
Since the Carcieri decision, the Department's leadership has worked
with this Committee, other Senators and Representatives, their
respective staffs, and tribal leaders from across the United States to
address the Carcieri decision. In 2009 and 2011, the Department
testified in support of legislation similar to S. 2188. The Department
incorporates that previous testimony here. S. 2188 will prevent costly
litigation and lengthy delays for both the Department and the tribes to
which the United States owes a trust responsibility.
II. Background Regarding the Cause and Outcome of Carcieri
No tribe has felt the impact of the Carcieri decision more directly
than the one at the center of the case, the Narragansett Tribe. Before
discussing the consequences of the Carcieri decision on Indian country
as a whole, it is important to remember lands at issue in that case and
the impact of the decision on the Narragansett Tribe.
In 1991, the Tribe's housing authority purchased, in fee simple,
approximately 31 acres of land across the street from 1800 acres of
lands held in trust for the Tribe. In 1992, the Tribe's housing
authority transferred the 31 acres to the Tribe with a deed restriction
requiring the land be used for tribal housing. That same year, the
Tribe's housing authority began construction of an elderly housing
project on the parcel. The Tribe did not acquire a building permit from
the town or obtain the State's approval for individual sewage disposal
systems before beginning construction because the Tribe believed those
permits were not necessary on tribally owned land. A dispute erupted
with respect to permits the State and town argued that the Tribe was
required to obtain. The Tribe sought to remedy the dispute over those
civil regulatory matters, by filing an application with the Department
to have the 31 acres taken into trust. After several federal lawsuits
over disagreements regarding the applicability of certain local laws,
the Tribe amended its 1996 fee-to-trust application and the BIA's
Eastern Regional Director agreed to acquire the land in trust for the
Tribe in 1997. The State appealed the BIA's decision to the Interior
Board of Indian Appeals, beginning the litigation that would go all the
way to the Supreme Court where it resulted in the 2009 Carcieri
decision.
I recently visited the Narragansett Tribe's reservation in Rhode
Island, where Chief Sachem Matthew Thomas and Medicine Man John Brown
gave me a tour of the Tribe's longhouse, their church and other
important lands held by the Tribe. Among other places, Chief Sachem
Thomas brought me to the tract of land at issue in the Carcieri
litigation. There I saw boarded-up vacant homes that the Tribe intended
to house their elders. Although construction was complete on the homes
in the early 1990's, the homes lacked sewer and other infrastructure.
Without the necessary infrastructure, the Chief Sachem told me that
these homes have been vacant since construction was completed
approximately twenty years ago. He also stated that all but two of the
elders who were to live in these particular homes have passed away. The
Department of Interior's 1998 fee-to-trust acquisition decision of this
land, for these homes, was the basis for more than a decade of
litigation which led to the Carcieri decision and its drastic
ramifications.
The Narragansett Tribe's experience makes clear the importance of
S. 2188. It illustrates the importance of tribes being able to
literally provide homes to their citizens. It illustrates how Carcieri
can stifle self-determination and self-governance--keystone federal
policies embedded in the Indian Reorganization Act. The Tribe's
experience illustrates the real life social and economic impacts of the
uncertainty caused by the protracted litigation. Finally, it shows the
administrative burdens placed on the Department and the resources
expended to defend trust acquisitions, in this case for over a decade.
S. 2188 fully addresses these impacts.
III. Consequences of the Carcieri Decision
A. The Carcieri Decision is Contrary to Longstanding Congressional
Policy
As noted above, in Carcieri, the Supreme Court was faced with the
question of whether the Department could acquire land in trust on
behalf of the Narragansett Tribe of Rhode Island for a housing project
under section 5 of the Indian Reorganization Act. The Court's majority
noted that section 5 permits the Secretary to acquire land in trust for
federally recognized tribes that were ``under federal jurisdiction'' in
1934. It then determined that the Secretary was precluded from taking
land into trust for the Narragansett Tribe, who had stipulated that it
was not ``under federal jurisdiction'' in 1934.
The decision upset the settled expectations of both the Department
and Indian country, and led to confusion about the scope of the
Secretary's authority to acquire land in trust for all federally
recognized tribes--including those tribes that were federally
recognized or restored after the enactment of the Indian Reorganization
Act. As many tribal leaders have noted, the Carcieri decision is
contrary to existing congressional policy, and has the potential to
subject federally recognized tribes to unequal treatment under federal
law.
In 1994 Congress was concerned about disparate treatment of Indian
tribes and passed an amendment of the Indian Reorganization Act to
emphasize its existing policy, and to ensure a principle of
administrative equality and non-discrimination. The amendment provided:
(f) Privileges and immunities of Indian tribes; prohibition on
new regulations
Departments or agencies of the United States shall not
promulgate any regulation or make any decision or determination
pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et seq., 48
Stat. 984) as amended, or any other Act of Congress, with
respect to a federally recognized Indian tribe that classifies,
enhances, or diminishes the privileges and immunities available
to the Indian tribe relative to other federally recognized
tribes by virtue of their status as Indian tribes.
(g) Privileges and immunities of Indian tribes; existing
regulations
Any regulation or administrative decision or determination of a
department or agency of the United States that is in existence
or effect on May 31, 1994, and that classifies, enhances, or
diminishes the privileges and immunities available to a
federally recognized Indian tribe relative to the privileges
and immunities available to other federally recognized tribes
by virtue of their status as Indian tribes shall have no force
or effect.
25 U.S.C. 476(f), (g). S. 2188 would effectively reaffirm
Congress's longstanding principle of treating all federally recognized
tribes equally without regard to whether they were ``under Federal
jurisdiction'' on June 18, 1934.
B. The Carcieri Decision has led to a More Burdensome and Uncertain
Fee-to-Trust Process
Since the Carcieri decision, the Department must examine whether
each tribe seeking to have land acquired in trust under the Indian
Reorganization Act was ``under federal jurisdiction'' in 1934. This
analysis is done on a tribe-by-tribe basis, even for those tribes whose
jurisdictional status is unquestioned. This analysis may be time-
consuming and costly for tribes and for the Department. It may require
extensive legal and historical research and analysis and has engendered
new litigation about tribal status and Secretarial authority. Overall,
it has made the Department's consideration of fee-to-trust applications
more complex.
To help address this issue, the Department's Solicitor recently
issued an M-Opinion interpreting the meaning of ``under federal
jurisdiction.'' The Solicitor concluded that the Department may take
land into trust under the first definition of ``Indian'' in the IRA for
a federally recognized Indian tribe that can demonstrate: (1) in or
before 1934, the tribe had some course of dealings with the federal
government reflecting that there were federal obligations to or
authority over the tribe; and (2) that the tribe remained under the
authority or responsibility of the federal government in 1934. The M-
Opinion formally institutionalizes and is consistent with the analysis
the Solicitor's Office has been using since Carcieri was decided.
Yet the issuance of the M-Opinion does not obviate the need for S.
2188. Instead, it further demonstrates the importance of S. 2188, as
tribes and the Department must expend considerable time and resources
collecting and analyzing historical evidence to support an ``under
federal jurisdiction'' analysis. And even once that work is completed,
the Department faces extensive litigation challenging its ``under
federal jurisdiction'' analyses and fee-to-trust acquisitions. Such
extensive litigation causes lengthy periods of uncertainty for the
tribes and poses barriers to tribal development or use of lands that
are the subject of a lawsuit. Without enactment of S. 2188, both the
Department and Indian tribes will continue to face this burdensome
process.
IV. S. 2188
S. 2188 would help achieve the goals of the Indian Reorganization
Act and tribal self-determination by clarifying that the Department's
authority under the Act applies to all tribes, whether recognized in
1934 or after, unless there is tribe-specific legislation that
precludes such a result. The bills would reestablish regular order in
the United States' ability to secure a land base for all federally
recognized tribes. The language in S. 2188 is identical to language in
the President's FY 2015 budget proposal for a Carcieri fix.
S. 2188 includes language that expressly ratifies actions taken by
the Secretary of the Interior under the authority of the Indian
Reorganization Act to the extent that such actions are based on whether
the Indian tribe was under federal jurisdiction on June 18, 1934. In
addition, S. 2188 provides that any references to the Act of June 18,
1934 contained in any other Federal law is to be considered to be a
reference to the Indian Reorganization Act as amended by the
legislation. The Department believes both the ratification and
reference provisions would be helpful in avoiding further litigation.
The Department has been consistent in expressing its support for
clean and simple legislation like S. 2188 to reaffirm the Secretary's
trust acquisition authority under the Indian Reorganization Act, in
accord with the common understanding of this authority that existed in
the decades preceding the Carcieri decision. We have also been
consistent in our support of the policy established by Congress in 1994
amendments to the Indian Reorganization Act, which ensures that we do
not create separate classes of federally recognized tribes.
V. Conclusion
The Carcieri decision, and the Secretary's authority to acquire
lands in trust for all Indian tribes, touches the heart of the federal
trust responsibility. Without a clear reaffirmation of the Secretary's
trust acquisition authority, a number of tribes will be delayed in
their efforts to restore their homelands: Lands that will be used for
cultural purposes, housing, education, health care and economic
development.
As sponsor of the Indian Reorganization Act, then Congressman
Howard, stated: ``[w]hether or not the original area of the Indian
lands was excessive, the land was theirs, under titles guaranteed by
treaties and law; and when the Government of the United States set up a
land policy which, in effect, became a forum of legalized
misappropriations of the Indian estate, the Government became morally
responsible for the damage that has resulted to the Indians from its
faithless guardianship.''
The power to acquire lands in trust is an important tool for the
United States to effectuate its longstanding policy of fostering tribal
self-determination. Congress has worked to foster self-determination
for all tribes, and did not intend to limit this essential tool to only
one class of tribes. S. 2188 would clarify Congress's policy and the
Administration's intended goal of tribal self-determination and allow
all tribes to avail themselves of the Secretary's trust acquisition
authority. S. 2188 will help the United States meet is obligation as
described by United States Supreme Court Justice Black's dissent
Federal Power Commission v. Tuscarora Indian Nation. ``Great nations,
like great men, should keep their word.''
This concludes my statement. I would be happy to answer questions
the Committee may have.
The Chairman. Thank you, Kevin. I would just state before I
get into my questions that I would hope that on 2041 you could
work with Senator Crapo and his staff and the Indian Affairs
staff to get clarified what needs to be clarified on this bill,
so that we can hopefully move it along with some of the other
bills we have been hearing since I took over as chairman.
Your testimony states that the Administration supports the
Patchak fix for all tribes. The provisions found in S. 1603 and
S. 2188, the Carcieri bill, would ratify and confirm only past
Secretarial trust acquisitions. Does the Department believe
this language is sufficient or do we need additional language
to fix the Patchak decision? If so, if we need additional
legislation, does the Department have any specific proposals?
Mr. Washburn. Thank you, Chairman. I would encourage you, I
do think we need a Patchak fix. Once the Department has gone
through its extensive administrative process to take land into
trust, we believe that we should be immune from further
litigation and tribes should be immune from further litigation
involving those land into trust applications.
I would not ask you to clutter up the Carcieri fix with an
additional Patchak fix. I think that is just a little too
complicated. So I would encourage you to consider a Patchak
fix, restore our sovereign immunity for actions of land into
trust. But I would not ask you to put another difficult issue
in the Carcieri bill.
The Chairman. I appreciate that. The Committee has heard
several times now that the increase in litigation regarding the
secretarial trust acquisition following Carcieri and the
Patchak decisions. Last November you mentioned there were about
15 trust land acquisitions being challenged either in Federal
court or the Interior Board of Indian Appeals. Is there an
update on those numbers? Is there any idea how much those
challenges are costing the Department and the tribes?
Mr. Washburn. As of this time, the numbers are roughly
about the same, as of April. I checked again a couple of weeks
ago and I believe we provided your staff with some information
about that.
But the work goes on. Because every time we take land into
trust, at least every time we do it for a different tribe, we
have to go through the whole analysis again to determine
whether they meet a Carcieri standard, in essence. And that has
been a heck of a lot of work. And we have lots of Carcieri
analyses pending. It is holding up land into trust for some
tribes.
Once we have done it once for a tribe, then we are usually
able to proceed taking additional land into trust for that
tribe. However, because of Patchak, they can be sued. So it is
not done when we do an opinion. We may have to face that again
in court. So it creates a real question of uncertainty for the
tribes.
The Chairman. Have you been able to put any real numbers to
what this is costing the Department or the tribes or both?
Mr. Washburn. We have. It is, well, we have testified on
other occasions, and I don't have those at the top of my head,
but a significant amount of staff time is used. And so some of
that stuff is sort of hidden, because you don't think about the
cost to staff. But it has taken an enormous amount of staff
time and it is economic development in Indian Country that is
not happening. So there are some Federal costs, but there is
also some lost opportunity cost at the tribal level. And those
roll up to be quite significant in total.
The Chairman. Okay, thank you. One of the proposals we have
heard regarding the land into trust process is to streamline
the process for on-reservation applications. Can you say how
many on-reservation applications are pending with the BIA and
how long those applications usually take?
Mr. Washburn. They vary dramatically depending upon their
complexity. Since the Obama Administration has been in office,
there have been about 1,650 applications that have been
accepted for land into trust. It is quite an extensive process.
The first thing we do on taking land into trust is notify the
State and local governments to see what they think about it.
That is the first and foremost thing that we do to get their
input. And once we have done that, then we put the tribe
through a litany of factors which might also occasionally
include NEPA, the environmental impact analysis, if they are
planning to do development on that land.
So it is often a long and arduous process. In fact, it is
always a long and arduous process. But whether it takes just
several months or several years depends on the complexity of
the application. And again, Carcieri just increases that
problem.
The Chairman. So is there any way to expedite that process,
or are we just where we are and that is the way it is?
Mr. Washburn. Well, let me just say this. I think that it
is probably fair to say that the vast majority of our land into
trust applications are on reservation. The thing that people
get wound up about is the gaming decisions. And there is a tiny
handful of those. We are holding all land into trust hostage
because some people are upset for just a handful of these small
gaming applications.
So we can certain, it is frustrating that the gaming issues
have come to dominate this discussion to such a great degree.
The Chairman. So can you give us any insight as to who is
holding them hostage? You said they are being held hostage.
Mr. Washburn. Well, Congress. I would say Congress. Until
this body fixes Carcieri, we will continue to deal with this
issue to some degree.
The Chairman. All right. Senator Barrasso?
Senator Barrasso. Thank you, Mr. Chairman.
Kevin, following up along those lines, the Administration
has supported restoring the Secretary's authority to take land
into trust for tribes. So we received testimony at our November
20, 2013 hearing that processes for trust acquisition and for
off-reservation gaming, because you raised the issue of gaming,
also need to be addressed as part of this decision. Do you
think that no legislative fix for Secretarial authority is a
better alternative than a fix that includes these other
processes?
Mr. Washburn. Well, let me say this. Those processes have
just changed a little bit. Our Patchak patch regulation gave
greater process to counties and local governments that are
interested in these issues and ensured better notice to them to
ensure that if they have a problem, they can raise that issue.
So we have just, my sense is we have just made some
improvements that address those kinds of things. People haven't
gotten to see the benefit of that because the regulation was
just enacted, just recently. So I would say that we have
addressed a lot of the things that were raised by Senator
Feinstein and Commissioner Dillon in that previous testimony.
Senator Barrasso. Coming up next we have some testimony
from Brian Cladoosby. When we review the written testimony, he
mentions how some tribal trust acquisitions may actually
infringe on the reservations of other tribes. So I don't know
how much these newer regulations may impact that. These
interests have caused some division among tribes in finding a
Carcieri fix. Do you have some recommendations to reconcile
these multiple tribal interests that are maybe overlapping
here?
Mr. Washburn. Vice Chairman, these are the hardest things
we do. These are among our very hardest decisions we make. And
that is why my job, it is one of the reasons my job is
difficult, because we have to weigh these competing interests
and then try to come up with a decision. And it is why we don't
do, again, especially it is the gaming ones that seem to bother
people. Those are the ones that bother people most.
And so we don't do it very often when it overlaps on
another tribe's reservation. It is very rare, and darned near
never. I think of the 1,650 land into trust applications that
we have had since the beginning of the Obama Administration, of
the ones that have been approved, well, there are only seven of
those, seven out of 1,650 that were taken into trust
successfully for gaming. There are a few others that are not in
trust yet because they have been challenged.
But it is just exceedingly rare. It is a vast exception and
again, it feels like, because people are upset about some very
specific cases that all the rest of this is being held up.
The Chairman. Senator Crapo?
Senator Crapo. Thank you, Mr. Chairman.
Mr. Washburn, first, I appreciate the Department's support
of Senate Bill 2040. I would just remind and highlight to you
that as we move forward, in order to deal with our scoring
issues here in Congress, the tribes have agreed to relinquish
the compensation that was due them. As I indicated to the
Chairman, I am going go be looking in some other venue for an
opportunity to correct that aspect of it, and may look to you
for some guidance and assistance as we move in that direction.
With regard to Senate Bill 2041, you indicated support for
the aims of it but concern that there may be some detail work
that still needs to be done. Could you clarify a little bit for
me exactly what we need to try to clarify there?
Mr. Washburn. Sure, Senator. One of the things is, we need
to take some action with regard to land if this bill passes.
And we don't have legal descriptions in the bill for the land
and that sort of thing. Just really technical things that make
it easier to do our job. We don't want something that is going
to create litigation down the road. We would rather have
clarity when you act, so that we know exactly what is expected
of us, and so that we can do that forthwith, rather than having
to wrangle through those issues later in ways that might make
people upset.
Senator Crapo. Thank you. I am sure that we will be eagerly
in touch with you to find out exactly what clarity we need to
include and to make those necessary corrections. I appreciate
your working with us on that. Thank you.
The Chairman. Thank you, Senator Crapo. Once again, Kevin,
thank you very much for taking time out and being with us
today. We appreciate your straightforward testimony. Thank you.
Mr. Washburn. Thank you, Chairman.
The Chairman. We will now ask the second panel to come to
the table. First, we are going to hear from the Honorable Brian
Cladoosby, President of the National Congress of American
Indians. We are then going to hear from Chairman Nathan Small,
from the Shoshone-Bannock Tribes, Chairman Elwood Lowery of the
Pyramid Lake Paiute Tribe, and Chairman D.K. Sprague of the Gun
Lake Band. Each one of these folks is going to discuss the
bill's impact in their tribes. I want to say thank you to all
you folks for traveling to Washington to visit with the
Committee and give your perspective and give us the ability to
put some meat on the bones when it comes to these bills.
We thank you all for being here. The same goes for this
panel as the previous one, you will have five minutes to make
your remarks. Your entire written statement will be a part of
the record. If you can stick to the five minute mark, it gives
us a little additional time for questions.
So with that, Brian, you may begin.
STATEMENT OF HON. BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS
OF AMERICAN INDIANS
Mr. Cladoosby. Chairman Tester, Vice Chairman Barrasso,
members of the Committee, thank you for the opportunity to
testify today. We very much appreciate the introduction of this
legislation.
The restoration of tribal homelands is critical to the
futures of all Indian Tribes, and they have worked very hard to
promote this legislation for the last five years.
Also I want to thank you, Chairman Tester, for your candor
at NCAI's Executive Council meeting in March. You questioned us
whether we were closer to a solution. We firmly believe that a
clean fix is by far the best and fairest solution for Indian
Country at this time. Given the challenges to get this fix
passed is going to be the issue.
You asked that tribal leaders come together and engage in
meaningful dialogue about options. I am here to thank you for
that leadership, and although we are disappointed that after
five years we were told we may not be able to advance the clean
fix that we have requested, I pledge that I will do everything
in my power as President of NCAI to facilitate dialogue amongst
tribes.
The Supreme Court's decision in Carcieri v. Salazar in 2009
overturned a Department of Interior longstanding interpretation
regarding the Indian Reorganization Act of 1934. The Supreme
Court in Carcieri held the the ``now'` in the phrase ``now
under Federal jurisdiction'` and the definition of Indian
limits, the Secretary's authority to acquire lands under the
IRA for only those Indian tribes under Federal jurisdiction on
June 18th, 1934, the date the IRA was enacted.
The Supreme Court left open the question of what it means
for an Indian tribe to be under Federal jurisdiction. As a
result, there has been significant and harmful related
litigation. For example, in Patchak v. Salazar in 2012, the
Supreme Court found that prior acquisitions of trust land are
not protected by the Quiet Title Act. Most recently in
California v. Big Lagoon, the Ninth Circuit found that Big
Lagoon Rancheria was not under Federal jurisdiction in 1934,
because no tribal members were living on trust land in 1934.
These legal precedents following the Carcieri decision are
deeply troubling to Indian Country. They underscore why the
Congress must act to fix this decision. It has now been over
five years since the Supreme Court decided the Carcieri case
and what began as an effort by tribes to simply follow the
intent of the Indian Reorganization Act and allow tribes to
restore their homelands now has become a different effort.
So if we were to simply address the Supreme Court case,
then we would amend one sentence in the Indian Reorganization
Act to make sure all tribes could take land into trust, nothing
more, and nothing less. This is exactly what S. 2188 does.
However, as this Committee is well aware, it is not often
that standalone bills that address Indian issues move through
Congress. Therefore, when tribal legislation becomes priority,
it is often seen as a vehicle to address a myriad of other
issues related to tribes. That is what happened here. Carcieri
legislation has become weighted down by issues such as gaming,
State, county and tribal jurisdictional issues, and Federal
recognition.
So while the right result would be to have enough support
in this Congress to simply pass a clean fix, we have not been
able to accomplish this today. And Senator Tester, based on
your statements to tribal leaders at NCAI's Executive Session
meeting, it is time to have a different conversation so we can
reach different results.
Tribes are at a crossroads. There is no status quo.
Litigation continues and the courts are shaping policy for
tribes instead of Congress, and changed decisions that have
been made for over 100 years. You have asked Indian Country to
dialogue and move this issue forward. As President of NCAI, I
am willing to lead this effort. But it will be difficult, and I
will likely get criticized for even suggesting we have these
conversations.
But having these difficult and serious conversations about
legislation is not new to Indian Country. We have had to have
difficult discussions around the Tribal Law and Order Act, the
Indian Health Care Improvement Act and the Cobell settlement.
We didn't get anything we wanted in these bills, but tribal
governments and Indian people are better off today because
those pieces of legislation were drafted, based on significant
tribal input, championed by this Committee and signed into law.
So as you asked, Mr. Chairman, NCAI will have these
discussions with Indian Country. We are willing to do that. But
we need the full support of every member of this Committee,
which is our trustee in the true sense of the word, which has
been asked to uphold the constitution which says that treaties
are the supreme law of the land.
So I ask that every Committee member work on behalf of
Indian Country to support a fix and bring resolution to this
issue.
We look forward to working with you and the Committee. And
I have five seconds I will yield here to my friend to my left.
[Laughter.]
[The prepared statement of Mr. Cladoosby follows:]
Prepared Statement of Hon. Brian Cladoosby, President, National
Congress of American Indians
Chairman Tester, Vice Chairman Barrasso and Members of the
Committee, thank you for the opportunity to testify today. We very much
appreciate the introduction of this legislation. The restoration of
tribal homelands is critical to the futures of all Indian tribes and we
have worked very hard to promote this legislation for the last five
years, ever since the Supreme Court decision in Carcieri v. Salazar
which developed a new interpretation of the phrase ``recognized Indian
tribe now under federal jurisdiction.''
I also want to thank you Chairman Tester for your candor at NCAI's
Executive Council meeting in emphasizing that while we have worked
diligently for five years, it is questionable whether we are any closer
to a solution. We firmly believe that a ``clean fix'' is by far the
best and fairest solution for Indian Country. You asked that tribal
leaders come together and engage in meaningful dialogue about options.
I am here to thank you for that leadership. I pledge that I will do
everything in my power as President of NCAI to facilitate dialogue
among tribes.
Brief Background, Analysis, and Discussion of Options
The Supreme Court's decision in Carcieri v. Salazar in 2009
overturned a Department of Interior longstanding interpretation
regarding the Indian Reorganization Act of 1934 (IRA). The Supreme
Court held the term ``now'' in the phrase ``now under Federal
jurisdiction'' in the definition of ``Indian'' limits the Secretary's
authority to acquire lands under the IRA for only those Indian tribes
``under federal jurisdiction'' on June 18, 1934, the date the IRA was
enacted.
The Supreme Court left open the question of what it means for an
Indian tribe to be ``under federal jurisdiction,'' and as a result
there has been significant and harmful related litigation. In Patchak
v. Salazar in 2012, the Supreme Court found that prior acquisitions of
trust land are not protected by the Quiet Title Act. Most recently in
California v. Big Lagoon, the 9th Circuit found that the Big Lagoon
Rancheria was not under federal jurisdiction in 1934 because no tribal
members were living on trust land in 1934. NCAI has supported
rehearing, but we are starting to see the trend of bad legal precedents
coming out of the Carcieri related litigation.
In 1934, Congress rejected allotment and assimilation and passed
the IRA. The clear purpose of Congress was to re-establish the tribal
land base and restore tribal governments that had withered under prior
federal policies. The legislative history and the Act itself are filled
with references to restoration of federal support for tribes that had
been cut off, and ``to provide land for landless Indians.''
A problem with our legal system is that lawyers sometimes lose
sight of the fundamental history and purpose of a law, debate the
meaning of a few words, and suddenly the law is turned on its head.
Today, because of the Carcieri decision, we have opponents arguing that
tribes are not eligible for the benefits of the IRA if they were not
under active federal supervision by the Bureau of Indian Affairs in
1934, or if they did not have lands in trust 1934. Both of these
arguments are contrary to the history and purpose of the law to re-
establish federal support for tribes that had been abandoned or ignored
by the BIA, and to restore land to tribes that had little or no land.
The purposes of the IRA were frustrated, first by WWII and then by
the Termination Era. The work did not begin again until the 1970's with
the Self-Determination Policy, and since then Indian tribes are
building economies from the ground up, and must earn every penny to buy
back their own land. Still today, many tribes have no land base and
many tribes have insufficient lands to support housing and self-
government and culture. We will need the IRA for many more years until
the tribal needs for self-support and self-determination are met.
Opposition Based on Expansion of Indian Gaming
While land restoration under the IRA has nothing to do with gaming,
opposing parties are using the decision to oppose land to trust for
gaming. Much of the resulting litigation is centered on land
acquisition for the purposes of gaming. In Congress, opposition to the
legislation has also focused on gaming. Even among tribes there is some
litigation and concern based in opposition to gaming facilities.
Although we have worked for five years to frame the issue as a question
of fundamental fairness and land restoration for all tribes--because
that is what the IRA and our efforts to get it fixed are about--perhaps
we cannot avoid the fact that the opposition's concerns are about
gaming.
It has now been over five years since the Supreme Court decided the
Carcieri case and what began as an effort by tribes to simply follow
the intent of the Indian Reorganization Act and allow tribes to restore
their homelands has now become a different effort. So if we were to
simply address the Supreme Court case, then we would amend one sentence
in the Indian Reorganization Act to make sure all tribes can take land
into trust--nothing more and nothing less. This is exactly what S. 2188
does.
However, as this Committee is well aware, it is not often that
stand-alone bills that address Indian issues move through Congress.
Therefore, when tribal legislation becomes a priority, it is often seen
as a vehicle to address a myriad of other issues related to tribes.
That is what happened here--the legislation has become weighed down by
issues such as gaming.
So while the right result would be to have enough support in this
Congress to simply pass a clean fix--we have not been able to
accomplish this to date. And, Senator Tester, based on your statements
to tribal leaders at NCAI's Executive Session meeting, it is time to
have a different conversation so we can reach a good result.
Tribes are at a crossroads--status quo means that litigation will
continue and the courts will shape policy for tribes instead of
Congress. You have asked Indian Country to dialogue and move this issue
forward. As President of NCAI, I am willing to lead this effort but it
will be difficult and I will likely get criticized for even suggesting
we have these conversations.
But, having these difficult and serious conversations about
legislation is not new to Indian Country. We had to have difficult
discussions around the Tribal Law and Order Act, the Indian Health Care
Improvement Act, and the Cobell settlement. We didn't get everything we
wanted in these bills, but tribal governments and Indian people are
better off today because those pieces of legislation were drafted with
significant tribal input, championed by this Committee and signed into
law.
So, if you are asking NCAI to have those discussions with Indian
Country, we are willing to do that, but we will need the full support
of every member of this Committee to work on behalf of Indian Country
to support a fix and bring resolution to this issue.
On-reservation acquisitions. The other reality that we face is that
many tribes are not directly affected by the Carcieri problem. In order
to generate broader tribal support for the legislation, we could
consider including language in the ``fix'' that would address some of
the more general tribal concerns about the land to trust process. For
example, there is generally wide support for on-reservation land to
trust acquisitions where tribes are simply restoring lands within their
existing reservations. However tribes run into an incredible amount of
red tape and delays--sometimes for decades. Tribal leaders could
consider an option for simplifying and expediting the process for these
non-controversial acquisitions. Including some provisions along these
lines might draw more interest and support from a broad spectrum of
tribes, which would help achieve legislative success.
Quiet Title Act. Another aspect of the Carcieri-related litigation
is of significant concern to all tribes. The Patchak decision set a
precedent for disturbing the title status of federal Indian lands, and
now in Big Lagoon the federal courts seem to be willing to go back in
time for many decades. This was clearly not the intention of the Indian
lands exception to the Quiet Title Act. In Patchak the Supreme Court
found the tribal arguments ``not without force,'' but indicated tribes
should to take their arguments to Congress. Tribes could consider
amendments to the Quiet Title Act that would protect the status of
existing and longstanding federal trust lands.
Conclusion
Chairman Tester, thank you for inviting a dialogue among tribes
about new options. This testimony is intended to initiate that dialogue
among tribes, and with you Mr. Chairman, Vice Chairman Barrasso, and
the other Members of the Committee. There may be many options we should
consider, and I would encourage both this Committee and the Department
of Interior to engage in consultation with all tribes. As the President
of NCAI, I will take these issues to the tribal leadership and seek
their views, and I hope I will have the opportunity to coming back to
you for more discussion in the near future.
In addressing this difficult challenge, Indian Country is asking
for the bipartisan support of this Committee. The Committee on Indian
Affairs has been a great friend and benefactor to Indian Country and
Indian people so many times and in so many ways over the decades. Now
we are calling on your assistance again. Thank you.
The Chairman. Brian, thank you for your testimony. I will
say that this won't happen because of your effort or my effort.
It will happen because of all of our efforts. I think that is
the key.
So if we work together, we can be successful. If this
Committee fractures, or there is a Native American fracture,
then it is going to be very, very difficult.
We have a good relationship. We will put the shoulder to
the wheel and we will make it happen.
Nathan Small, you are up.
STATEMENT OF HON. NATHAN SMALL, CHAIRMAN, FORT HALL BUSINESS
COUNCIL, SHOSHONE-BANNOCK TRIBES
Mr. Small. Good afternoon. My name is Nathan Small. I am
Chairman of the Fort Hall Business Council of the Shoshone-
Bannock Tribes in southeastern Idaho.
I am honored to testify here first on S. 2040. And it is
good to see Senator Crapo here, I come visit him every time I
am in town, and he has been gracious enough to come visit us
whenever he is back home. Good to see you and thank you for the
words that you brought out here. We really appreciate his and
Senator Risch's efforts on this bill in the past five years.
Again, just to echo what Senator Crapo indicated, this bill
would resolve land ownership disputes resulting from channel
realignment of the Blackfoot River in 1964 by the U.S. Army
Corps of Engineers. All impacted parties, including the non-
Indian landowners on the north bank of the river, support this
bill.
The realignment severed various parcels of land along the
river, resulting in Indian land being located north of the
realigned river and non-Indian land being located south of the
realigned river. The best way to understand the problem created
by the re-channelization is by showing you this map. And that
is this map over here. As you can see, the original boundary
and the river are shown in blue. It is a little hard to see the
blue, but you can see how the river basically meandered through
or snaked through the area there.
Also, what you will see is, basically these loops that were
created when they rechanneled created a lot of land that was
landlocked or had no access. And there is about 44 of those
loops altogether, you can see the blue loops, going around and
around there. So this one here is probably the most exaggerated
loop of them all, you can see that right here, along with the
others over here.
But when you don't have access to your land, you can't do
anything with it. As a result, you miss out on whatever
productivity you might have had for that land. I think some of
these lands were already being farmed and had some income
coming off of them for the people that were involved in these,
both Indian and non-Indian.
S. 2040 would resolve the clouded titles by placing about
31 acres of non-Indian lands located south of the river into
trust for the tribes and by converting about 37 acres of Indian
trust land located north of the river into fee lands and
transferring those lands to the Blackfoot River Flood Control
District No. 7. Clearing title would enable us to farm or use
the land. The parties have lost valuable income due to the
inability to farm these lands.
In the past, objections were raised by the authorization
for appropriation provisions contained in previous versions of
this bill. In order to move that forward, the parties removed
this provision in the bill and made other changes. We are
encouraged that Interior now supports this bill and we urge
Congress to enact this bill and thank you, and again thank you
to Senator Crapo and Senator Risch for allowing us to present
this and get something straightened out that has been there
since the 1960s.
The second bill on here to discuss is S. 2041, the 1918
Appeal Act. We thank again Senators Crapo and Risch for
introducing S. 2041 that repeals the authority of Interior to
transfer our reservation lands into a municipality for use as a
town site or other public purposes. Even though a municipality
was never formally established, approximately 120 acres of the
tribe's lands were taken out of trust under the Act.
As you can see, our reservation currently has about 544,000
acres of land. The red shows that. Originally, when the land
was supposed to have been surveyed, that line was supposed to
come clear down to here. Of course, that didn't happen. The
green part here is Bingham County. They have basically agreed
that the town site should probably come back under the tribe,
it is not something that they have had a lot to do with. The
black dot is the location of this little town site here. As you
can see in the bigger picture, this is how it looks today.
In 1966, Interior issued a public land order restoring
approximately four acres of our lands and approximately 111
acres still remain that are currently not in trust. Tribal
members and non-Indians own pieces of the land, simple parcels
in that area. If you look at this map here, and I believe there
are some on that side there, there is about four acres that was
put back into trust in 1960, there. As you can see, this whole
town site in this area is very close to a lot of our tribal
governmental activities. There is our REAMS complex, here is
the justice center that we just recently built, and our tribal
business center is right here. We have our rodeo grounds and
our festival grounds right here, our Indian Health center.
So most of our activity is all centered around here, our
tribal government. But across the road here, we have this town
site, that is currently out of trust.
The tribes do own some parcels in here. There is a school
right here, I believe, an elementary school that is under
school district number 55 in Blackfoot, Idaho. Right across the
street there is what used to be an old LDS church that is now
currently being utilized by our fisheries department. So a part
of our tribal government is also using some of the land within
this area. Again, there are several places in this area that
are owned by tribal members, owned by other Indians, and owned
by non-Indians.
So when Mr. Washburn was talking about some clarity to the
place, we also want some clarity to the place. But a lot of
that information that he is currently looking for we have been
diligently working to gather that information. He should have
it by tomorrow or the next few days, and we will also make sure
that the Committee gets that, so there is no more
misunderstanding of the clarity of that place.
The tribes in Bingham County have been working
cooperatively for several years on a lot of matters. This is
one mater that we have been working cooperatively with them.
Just to let you know, our tribal government provides all the
services to the town site there already. We provide water,
waste disposal and fire and EMS, and even some police
protection out there. So based on that, the county does support
us, and we jointly seek the repeal of the 1918 Act to resolve
issues relating to the clouded titles and the insurance risks.
On September 16, 2013, the county sent a letter requesting
legislation to repeal the Act that would provide the tribes the
opportunity to purchase non-trust lands at fair market value
that are offered for sale. S. 2041 would direct Interior to
place only non-trust 1918 Act lands acquired under this bill
into trust. A technical amendment is needed to clarify that a
section of the bill applies only to the 1918 Act lands. Their
current uses and land ownership would not be impacted by repeal
of the law. So everything basically would still be the same as
far as the ownership of those lands, except for those that are
either owned by the tribe or other Indians would go into trust.
S. 2041 is consistent with Federal law and policies to
restore tribal homelands. Let's get it done, so we can get it
done.
One of the other things I would like to talk about is to
discuss S. 2188, and again, I would like to echo just about
everybody else's comments concerning that. It has been five
years since this decision has deterred investments and job
creation on Indian lands and has opened up criminal convictions
to challenge. More importantly, Carcieri has produced a series
of Federal cases that are cutting away at tribal sovereignty.
The most recent attack was the Ninth Circuit Big Lagoon
Rancheria decision from January of this year. This case took
Carcieri to a dangerous new level. It goes beyond placing
Indian lands into trust. Big Lagoon threatens existing tribal
homelands regardless of how long the lands have been in trust.
The Shoshone-Bannock tribes have a treaty-protected
reservation. We are organized under the IRA in 1934. So for
most purposes, we are not in the direct line of fire. However,
after the Big Lagoon decision and the growing list of cases yet
to be cited, all tribes are at risk.
I can't put it any simpler than to say this is a full-scale
attack on tribal sovereignty. When one tribe loses that battle
to protect sovereignty, we all lose. If nothing is done, the
Federal courts will continue to erode our trust lands and our
power to govern. The Shoshone-Bannock tribes are members of the
Montana-Wyoming Tribal Leaders Council, the Coalition of Large
Tribes and the Affiliated Tribes of Northwest Indians. All of
these organizations have joined a total of 29 national and
regional tribal organizations representing more than 400 tribes
in strong support of a Carcieri fix. A letter from these
organizations is attached to my written statement.
And in closing, S. 2188 will protect existing Indian lands,
revive investment in Indian Country and comes at no cost to the
Federal Government. Most importantly, this bill will stop the
line of attacks on tribal sovereignty in Federal courts. This
is a top priority for all of Indian Country and I respectfully
urge all members of the Committee to co-sponsor S. 2188, and I
ask that the Committee work with the Senate leadership to pass
this bill.
I want to again thank the Committee for the opportunity to
testify on these bills here today. If I am able, I would like
to answer questions you may have. I am really enthused by what
Senator Crapo has been doing for us, in taking care of a lot of
these issues here. It has been a long time, like you said, this
is our third Congressional year trying to get something done
here. I think we have it ready for the other two bills along
with the Carcieri. Thank you.
[The prepared statement of Mr. Small follows:]
Prepared Statement of Hon. Nathan Small, Chairman, Fort Hall Business
Council, Shoshone-Bannock Tribes
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Nathan. We appreciate your
testimony, appreciate your perspective.
Elwood Lowery, you are up to bat.
STATEMENT OF HON. ELWOOD LOWERY, CHAIRMAN, PYRAMID LAKE PAIUTE
TRIBE
Mr. Lowery. My name is Elwood Lowery, Chairman of the
Pyramid Lake Tribe. I am here representing the tribe at the
request of the Vidler Water Company in support of S. 1818, the
Pyramid Lake Paiute Tribe-Fish Springs Ranch Settlement Act.
Vidler Water Company is the managing partner for Fish Springs
Ranch. Steve Hartman, the Vice President, is here today and
available to answer any questions.
First, I would like to request that our joint statement and
the full settlement package be placed in the record and I be
allowed to summarize the statement.
The Chairman. It is in, without objection.
Mr. Lowery. Also, I would like to express appreciation to
Chairman Tester and Vice Chairman Barrasso and Senator Crapo,
for holding this hearing. I recognize the time of the hearing
is limited. I hope that the hearing is a good sign for S. 1818
to be enacted. S. 1818 proposes new authorization and
ratification to confirm that basically it is a private
settlement between the tribe and Fish Springs.
The basic issue was a dispute over a proposed project by
Fish Springs Ranch to pump groundwater north of Reno. We were
concerned that the pumping could adversely affect groundwater
on or near the Pyramid Lake Reservation. Because the proposed
project required a BLM right of way, we sued the Department of
Interior and BLM for breach of trust and violation of NEPA when
BLM approved the right of way over our objections. Fish Springs
joined the suit on the side of Interior.
However, we got together and decided to settle this issue
rather than continue to litigate. The settlement involves a
trust resource, because the Fish Springs project could affect
water on the reservation. Therefore the settlement requires
Federal authorization to take effect. That is why we are here.
From Fish Springs' standpoint, the settlement protects
their private groundwater project, which is in Honey Lake
Valley. Fish Springs will pump groundwater in Honey Lake Valley
and transport it to the northern suburbs of Reno, Nevada. From
the tribe's standpoint, the settlement was closely examined by
the tribal hydrologist, our attorneys and our council. We
believe it reasonably compensates the tribe for the potential
damage to reservation groundwater.
We recognize that every settlement is unique. In this case,
the tribe and Vidler came together and reached a settlement
without the involvement of the Department of Interior. We also
have worked very hard to make this settlement and the proposed
legislation easy for Congress and the Administration to
approve.
Simply stated, the settlement will terminate our lawsuit
against the Department of the Interior. The settlement requires
no action from the Department of the Interior. Unlike most
water rights, settlements, there is no cost to the United
States Government from the settlement or the proposed
legislation. The legislation assures that the Federal
Government will bear no liability from the settlement.
Both the tribe and Fish Springs urge Congress to enact S.
1818 at its earliest opportunity this year, to be passed
earlier this year if it can. I would like to thank you for
allowing me to make this appearance, and would be pleased to
answer any questions.
[The prepared statement of Mr. Lowery follows:]
Prepared Statement of Hon. Elwood Lowery, Chairman, Pyramid Lake Paiute
Tribe
I am Elwood Lowery, Chairman of the Pyramid Lake Paiute Tribe, and
am here today representing the Tribe and also at the request of Vidler
Water Company regarding S. 1818, the Pyramid Lake Paiute Tribe--Fish
Springs Ranch Settlement Act. Vidler Water Company is the managing
partner for Fish Springs Ranch, LLC. We greatly appreciate the fact
that the Senate Indian Affairs Committee has scheduled this hearing and
we urge you to expeditiously report out S. 1818 to the full Senate for
consideration and approval.
At the outset, I would like to say that we have worked hard to make
this settlement and the requisite legislation easy for Congress to
approve. It ratifies an agreement between two independent parties--the
Tribe and Fish Springs Ranch--at no cost to the United States
Government, asks for and requires no action by the Department of the
Interior and likely reduces its workload, terminates a lawsuit against
the Department of the Interior, and assures that the Government will
bear no liability from the settlement. It also protects a private water
project that is already constructed and reasonably compensates the
Pyramid Lake Paiute Tribe from private funds for any actual or
potential resource loss. Because it involves a trust resource, however,
it requires Federal authorization to take effect. That is why we are
here.
The proposed legislation (S. 1818) authorizes, ratifies and
confirms a settlement between the Pyramid Lake Paiute Tribe (Tribe) and
Fish Springs Ranch, LLC (Fish Springs). The proposed legislation is
necessary to complete the settlement which resolves the parties'
dispute over water rights and alleged injuries to tribal water rights
in connection with the pumping and transport by Fish Springs of
groundwater from the Honey Lake Valley Basin to the suburban Stead/
Lemmon Valley area north of Reno, Nevada. The transport of the
groundwater to the Reno suburbs is across public lands, which required
a Bureau of Land Management (BLM) right-of-way permit. The groundwater
pumping takes place west of the Pyramid Lake Paiute Reservation. The
Tribe's concern with the project was that Fish Springs' pumping could
reduce the flow of groundwater to the Pyramid Lake Valley and Smoke
Creek Desert portions of the Tribe's Reservation, reducing the Tribe's
precious groundwater resource and potentially adversely affecting
Pyramid Lake, which is a desert terminus lake located entirely within
the boundaries of the Pyramid Lake Paiute Reservation and home to the
threatened Lahontan cutthroat trout and the endangered cui-ui. The fish
of Pyramid Lake were the primary food resource of the Tribe for
millennia and the Tribe has close cultural ties to them. The Native
name for the Pyramid Lake Paiute, Cui Ui Ticutta, means cui-ui eaters.
Fish Springs Ranch and the Tribe have resolved their dispute
through settlement, which needs federal approval. The terms of the
settlement are reflected in an agreement entered into by the parties on
May 30, 2007 (Original Agreement), and a supplement to that agreement
entered into by the parties on November 20, 2013 (Supplemental
Agreement), discussed below. The settlement involved two parts, the
first of which has been completed and required no federal legislation.
The second part involves the Tribe's waiver of full legal protection of
its potentially affected water rights in the project area in favor of
Fish Springs Ranch's pumping for its water export project and requires
federal authorization for the Tribe to grant such waivers. Without this
legislation, the Tribe will lose its ability to receive the benefits of
the second part of the settlement, including the right to $3.6 million
and accumulated interest.
Background
In 2005 and 2006, the Bureau of Land Management issued a Final
Environmental Impact Statement on rights-of-way across public lands for
groundwater projects in the Honey Lake Valley of Nevada north of Reno,
a Record of Decision for the Fish Springs groundwater project, and a
water pipeline right-of-way across public lands for transport of
groundwater from Honey Lake Valley to suburbs north of Reno. One of the
project proposals considered in the EIS was Fish Springs' water pumping
and export project. The total amount of groundwater rights covered by
the Fish Springs project is 14,108 acre feet per year (afy), of which
13,000 afy is authorized to be pumped by Nevada State Engineer rulings.
Of the 13,000 afy, 8,000 afy was covered in the EIS and another 5,000
afy could be pumped and sold in the future. A visual portrayal of the
geography of the project area in relation to the Pyramid Lake Paiute
Reservation and Reno, Nevada, is attached to the end of this statement.
The Tribe's concern with the groundwater pumping was the potential
effects of pumping groundwater in Honey Lake Valley on the Tribe's
Reservation and water resources. The U.S. Geological Survey groundwater
model used in BLM's EIS predicted the maximum groundwater outflow from
Honey Lake Valley to Pyramid Lake Valley, which is the location of much
of the Pyramid Lake Paiute Reservation, via Astor Pass could be reduced
by about 140 afy after 100 years, and eventually 150 afy at steady-
state, or 10 percent of baseline conditions. The maximum groundwater
outflow to Smoke Creek Desert, much of which is also part of the
Tribe's Reservation, via Sand Pass could be reduced by about 450 afy
after 100 years, and eventually 570 afy at steady-state, or 11 percent
of baseline conditions. A substantial quantity of Smoke Creek Desert
groundwater flows toward Pyramid Lake Valley and the model projected a
potential reduction in flow of this groundwater that could eventually
reduce groundwater outflow to Pyramid Lake Valley by about 500 afy, for
a total effect on Pyramid Lake Valley of about 650 afy. These
reductions were predicted for the entire hydrologic basins rather than
groundwater specifically underlying the portions of the Pyramid Lake
Paiute Reservation within those basins, but the Pyramid Lake Paiute
Reservation occupies a major part of both areas.
The Tribe objected to the EIS, the Record of Decision, and the
project, and asserted that the project would harm the resources of the
Pyramid Lake Paiute Reservation, cause injuries to tribal water rights,
and impair the Tribe's existing and claimed tribal water rights. The
Tribe filed suit in Federal District Court for the District of Nevada
on grounds of a violation of the National Environmental Policy Act
(NEPA) and breach of trust, securing a preliminary ruling that the EIS
most likely violated NEPA and an injunction. Appeals were filed with
the Ninth Circuit Court of Appeals and an appeal was also filed before
the Interior Board of Land Appeals.
The parties intended to settle these issues through the Original
Agreement entered into on May 30, 2007.
The Original Agreement Had Two Parts
Part 1: The first part permitted Fish Springs project
construction to proceed and the project to operate in return
for $3,600,000, the transfer of over 6,200 acres of land to the
Tribe, and certain other consideration including the right to
payments to the Tribe for future transfers of water in excess
of 8,000 afy already authorized up to an additional 5,000 afy.
It was intended to settle all administrative appeals and end
all litigation involving the Tribe's objections to the project
and Fish Springs water rights, the EIS, and BLM's Record of
Decision and impacts to the Tribe and its resources.
Part 2: The second part, in return for a second payment of
$3,600,000 plus accumulated interest to the Tribe, intended to
completely and fully settle all claims of the Tribe and, if
any, of the United States on behalf of the Tribe for impacts or
injuries to existing and claimed tribal water rights, injuries
to tribal water rights in four hydrographic basins, and
potential injuries resulting from the project to the Pyramid
Lake Paiute Reservation. Part 2 of the Original Agreement was
contingent on legislation to authorize the completion of its
terms.
The Settlement Today
Part 1: Part 1 of the Original Agreement was not contingent on
legislation and the parties have performed and are continuing to
perform their obligations, including but not limited to the following:
1. Fish Springs paid the Tribe $3,600,000;
2. Fish Springs transferred and conveyed approximately
6,214.32 acres of land to the Tribe;
3. Fish Springs has implemented the water resources,
monitoring, and management plan as approved by the Nevada State
Engineer;
4. Fish Springs has delivered and continues to deliver certain
resource reports to the Tribe and the United States showing the
total amount of water pumped and transferred from Fish Springs
Ranch to the North Valleys Planning Area through the project;
5. To the extent opportunities have arisen to date, the Tribe
has cooperated in the future permitting for the project;
6. The Tribe has participated in dissolving a preliminary
injunction in the Federal District Court Action, dismissing the
IBLA Appeal, and dismissing the Ninth Circuit Appeals, which
paved the way for Fish Springs' pipeline to be constructed; and
7. Fish Springs has been able to exercise its right under the
Original Agreement to pump and transfer water through the
project to end users.
Part 2: Completing Part 2 of the Original Agreement languished as
the legislation required by the settlement and proposed toward the end
of the session in 2008 was not enacted. The Tribe and Fish Springs
still desired to complete the terms of Part 2 of the Original
Agreement, however, and entered into the Supplemental Agreement this
past November to accomplish this objective. The Supplemental Agreement
simplifies the remaining actions required to accomplish Part 2 of the
Original Agreement while remaining true to its original intent. Under
Part 2 of the settlement, the Pyramid Lake Paiute Tribe agrees to not
challenge Fish Springs existing state permitted water rights, to waive
claims for damages or taking of Tribal water rights from use of Fish
Springs' state-permitted water rights, and to not impair, prevent, or
interfere with implementation of the Fish Springs' project. In return,
Fish Springs agrees to compensate the Tribe for allowing the project to
proceed through a monetary settlement. The Tribe considers the value of
the settlement to be fair and the Pyramid Lake Paiute Tribal Council
has approved the settlement after examining it closely.
The Supplemental Agreement modifies the manner in which the
settlement is approved by the United States. The Original Agreement was
negotiated by the Tribe and Fish Springs, but assumed that the United
States, through the Executive Branch, as the Tribe's trustee, would
sign waivers of potential claims against Fish Springs along with the
Tribe even though Departments of Justice and Interior representatives
were not involved in the negotiations. This approach has been modified
to have the same effect, but for Congress to (1) extinguish claims the
United States could bring on behalf of the Tribe against Fish Springs
to the extent that claims are waived by the Tribe, (2) eliminate the
responsibility of the United States to assert such claims on behalf of
the Tribe, and (3) terminate any potential liability of the United
States resulting from the settlement terms. In these ways, the
settlement is simpler and the proposed legislation does not require
participation in the settlement by the Executive Branch.
The Supplemental Agreement also modifies the approach in the
Tribe's waivers to that generally recommended by the Department of the
Interior, which is patterned on recent Indian water rights settlements
such as those for Aamodt, White Mountain Apache, and the Crow Tribe. In
doing so, it adds specific waivers of claims against the United States
by the Tribe, which complement the waivers of claims against Fish
Springs, and assures the United States that it will incur no
liabilities as a result of the settlement.
The Supplemental Agreement also provides that if Legislation is not
enacted by December 31, 2015, Part 2 of the Settlement will be
terminated. In this case, the Tribe would no longer be entitled to
payment from Fish Springs for Part 2 of the settlement.
The Proposed Legislation, S. 1818
The proposed legislation authorizes and ratifies the Supplemental
Agreement and thereby permits the settlement between the Tribe and Fish
Springs to be completed. Through the proposed legislation, the United
States would extinguish any claims on behalf of the Tribe that are
waived by the Tribe against Fish Springs and the United States would
have no right or obligation on behalf of the Tribe to assert claims
waived by the Tribe. The Tribe would also waive any claims it might
have against the United States under the agreement and act including
waiving any United States liability to the Tribe for the claims waived,
subject to certain reservations. The proposed legislation would
authorize the Tribe to grant the waivers against both Fish Springs and
the United States, which it cannot do without authorization from
Congress. These provisions would take effect after the Tribe signed its
waivers and Fish Springs paid the Tribe $3,600,000 plus interest from
January 8, 2009, until the date the payment is made. The Tribe will
also dismiss pending litigation against the Bureau of Land Management
for violations of NEPA and United States trust responsibilities related
to the Fish Springs project and Fish Springs' use of its groundwater
rights.
Benefits of the Settlement to the United States
The settlement resolves a lawsuit against the Bureau of Land
Management, eliminates the potential need for the Bureau of Land
Management to prepare a new or supplemental EIS, fulfills a trust
responsibility of the United States to the Tribe, eliminates a
potential liability of the United States for breach of trust against
the Tribe, resolves water rights between the Tribe and Fish Springs
Ranch, and, potentially, between the United States, acting on behalf of
the Tribe, and Fish Springs Ranch, at no cost to the United States.
No federal appropriation of funds is sought or needed under the
settlement or the proposed legislation.
Both Fish Springs Ranch and the Tribe urge that Congress enact S.
1818 at its earliest opportunity this year so that we can complete the
settlement and not be pushed up against the termination deadline next
year. We thank you for this hearing and for your consideration of this
settlement legislation.
The Chairman. There will be questions here shortly. We are
going to get Chairman Sprague to have his testimony, then we
will get to questions.
You may proceed.
STATEMENT OF HON. DAVID ``D.K.'' SPRAGUE, CHAIRMAN, MATCH-E-BE-
NASH-SHE-WISH BAND OF POTTAWATOMI
INDIANS
Mr. Sprague. Good morning. My name is D.K. Sprague, I am
the Chairman of the Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians of Michigan. We are also known as the Gun
Lake Tribe.
I want to thank the Committee for holding this hearing on
S. 1603, a bill that will simply reaffirm the trust status of
our lands. I also want to thank Senators Stabenow and Levin who
introduced this bill and our own Congressman, Fred Upton, whose
district encompasses our reservation and who was a strong
supporter of this bill.
Mr. Chairman, this legislation is very straightforward. It
simply reaffirms the trust status of the one parcel of land the
Federal Government currently holds in trust for our tribe. Our
tribe's sovereign status was reaffirmed by the United States on
August 23, 1999. In 2001, additionally, the Secretary of
Interior did take 147 acres into trust on behalf of our tribe.
After several years of a long and costly administrative
process, and many more years of legislation these lands were
finally placed in trust on January 30, 2009, nearly eight years
after we first petitioned to have these lands taken into trust.
That fact still astounds me today.
We have since opened a gaming and entertainment facility on
our reservation lands. They are the same lands where we house
our tribal police department. Again, this is the only parcel of
land that is held in trust on behalf of our tribe.
Since February of 2011, we have hired over 1,000 people in
our community. We have also worked closely with our local
governmental partners on a revenue sharing plan that has
greatly benefited our tribe, local schools, law enforcement
agencies and local communities. All this is now threatened by a
U.S. Supreme Court opinion that has allowed one individual to
challenge the authority of the Secretary of Interior to take
land into trust for our tribe.
This case threatens our economic well-being and has made it
virtually impossible for my tribe to obtain financing for any
future economic development projects. After 13 years of
administrative and legal battles, we find ourselves still
fighting the same issues in the courts. Our tribe has suffered
a great loss of resources from these lawsuits. And while we
have won every single challenge on the merits, it is now time
for this dispute to come to an end for the sake of our tribe,
our employees and our local communities.
Mr. Chairman, let me be very clear. This legislation will
simply reaffirm the status of our existing trust lands. And it
will only impact the Gun Lake tribe. It does not affect any
other lands, and it does not give my tribe or the BIA any new
authority. It is my understanding that we are the only tribe in
the Country that currently faces this dilemma.
We have a letter from the BIA which underscores the
uniqueness of our situation. That is why this legislation is
strongly supported on a bipartisan basis by the Michigan
Congressional delegation. We also have 35 letters of support
from local elected officials, law enforcement and business
leaders and civil groups who live in our community. It is
important to note that not one unit of government, local,
county or State, has ever opposed our efforts to reestablish
our reservation or to operate a gaming facility on our
homelands.
Again, thank you for allowing me to testify today. I urge
the Committee to pass this bill as soon as possible and I am
open to answer any questions you may have. Megwich.
[The prepared statement of Mr. Sprague follows:]
Prepared Statement of Hon. David ``D.K.'' Sprague, Chairman, Match-E-
Be-Nash-She-Wish Band of Pottawatomi Indians
Chairman Tester, Vice- Chairman Barrasso and Members of the
Committee, my name is DK Sprague and I am the Chairman of the Match-E-
Be-NashShe-Wish Band of Pottawatomi Indians of Michigan. We are also
known as the Gun Lake Tribe.
I want to thank the Committee for holding a hearing on Senate Bill
1603, a bill that will simply re-affirm the trust status of our lands.
I also want to thank Senators Stabenow and Levin, who introduced this
bill--and our own Congressman Fred Upton, whose district encompasses
our reservation and who is a strong supporter of this bill.
Mr. Chairman, this legislation is very straight-forward. It simply
re-affirms the trust status of the one parcel of land the Federal
Government currently holds in trust for our Tribe.
Our Tribe's sovereign status was reaffirmed by the United States on
August 23, 1999. In 2001, we petitioned the Secretary of Interior to
take 147 acres of land into trust on behalf of our Tribe.
After several years of a long and costly administrative process--
and many more years of litigation, these lands were finally placed into
trust on January 30, 2009--nearly eight years after we first petitioned
to have these lands taken into trust. That fact still astounds me
today.
We have since opened a gaming and entertainment facility on our
reservation lands. They are the same lands where we house our Tribal
police department. Again, this is the only parcel of land that is held
in trust on behalf of our Tribe.
Since February of 2011, we have hired over 1,000 people in our
community. We have also worked closely with our local governmental
partners on a revenue sharing plan that has greatly benefitted our
Tribe, local schools, law enforcement agencies and local communities.
All of this is now threatened by a U.S. Supreme Court opinion that
has allowed one individual to challenge the authority of the Secretary
of Interior to take land into trust for our Tribe. This case threatens
our economic well-being and has made it virtually impossible for my
Tribe to obtain financing for any future economic development projects.
After thirteen years of administrative and legal battles, we find
ourselves still fighting the same issues in the courts. Our Tribe has
suffered a great loss of resources from these lawsuits. And while we
have won every single challenge on the merits--it is now time for this
dispute to come to an end--for the sake of our Tribe, our employees and
our local communities.
Mr. Chairman, let me be very clear--this legislation will simply
reaffirm the status of our existing trust lands--and it will only
impact the Gun Lake Tribe. It does not affect any other lands, and it
does not give my Tribe or the BIA any new authority.
It is my understanding that we are the only Tribe in the country
that currently faces this dilemma. We have a letter from the BIA which
underscores the uniqueness of our situation.
That is why this legislation is strongly supported on a bi-partisan
basis by the Michigan Congressional delegation. We also have 35 letters
of support from local elected officials, law enforcement, business
leaders and civic groups who live in our community. It is important to
note that not one unit of government--local, county or state--has ever
opposed our efforts to re-establish our reservation or to operate a
gaming facility on our homelands.
Again, thank you for allowing me to testify today. I urge the
Committee to pass this bill as soon as possible and I am open to answer
any question you may have.
The Chairman. Thank you, Chairman Sprague.
Senator Crapo?
Senator Crapo. Thank you, Mr. Chairman, for letting me go
first. I do have a meeting I have to get to before that vote
starts, so I appreciate this.
I actually don't have any questions, but I did want to take
this opportunity to welcome Chairman Small of the Shoshone-
Bannock Tribes here, and to thank him for not only our
friendship, but for his good, strong leadership in helping us
to get to this point. We have worked for many years, it has
been a long road, and I am hopeful that we are close to the end
of that road and that we can continue to work on this as well
as a number of the other issues that are working on together.
Again, Mr. Chairman, I wanted to thank Chairman Small
publicly for his being here with us today and for the
tremendous service he gives out in Idaho.
The Chairman. Thank you, Senator Crapo, and we appreciate
your leadership also.
I think we are going to start with Brian. Brian, as far as
the Carcieri decision goes, I think it is important, as far as
Carcieri goes, I think it is important that any hearing on this
issue continues to document the impact of that decision on
tribes and why it is important for Congress to do what the
Supreme Court asked them to do, clarify the law.
The Assistant Secretary spoke about empty houses that are
now boarded up and will never be used because of the Carcieri
decision. I would ask you to discuss any similar impacts of the
Carcieri decision on other reservations throughout the Country.
Mr. Cladoosby. Yes. In Oregon, there is a tribe right now
that is affected by this. It is a non-gaming economic
development project that they had to put on hold now because of
the impacts of this case. That is very serious, when the
investors are questioning the tribe's ability to be able to
move forward on a project like this. It is really detrimental
to those tribes that are trying to do projects that are non-
gaming in stature, and the majority of these are.
So we are seeing impacts around the Country because of this
case.
The Chairman. Is it true that this only impacts the tribes
recognized after 1934?
Mr. Cladoosby. That is a good question. I believe we have
to look at it very closely, those tribes that were recognized
before 1934, and the potential impacts that they could have
going forward because of this case.
The Chairman. I would be remiss if I didn't thank NCAI for
all their work on this issue. I know you are in a tough
position, as your opening remarks talked about. But the fact
is, we are going to find a different solution to the Carcieri
problem with S. 2188. It may not be the ideal solution, it may
be the ideal solution, too, which is what we hope. But we all
know that it may not get the support it needs to pass without
potential changes.
How can this Committee continue to help promote further
discussions and dialogues on this issue among tribes and other
stakeholders?
Mr. Cladoosby. I think what is very important for people to
understand is that we just need a one-sentence fix in this. The
other issues, the gaming issues, the State, county and tribal
jurisdictional issues, the Federal recognition issues, those
are definitely issues that need to be dealt with. But we can
deal with those separately. All we need to do here is just
amend one sentence in the Indian Reorganization Act to fix
Carcieri, but continue to work on these other issues that
people want to put into this bill to weigh this down to
basically doom its passage.
So that is what I would hope that the Congress would do,
seriously look at these other issues but look at it separately
and independent from a clean Carcieri fix.
The Chairman. Last fall, we heard from the counties on this
issue. They wanted to be more involved in the land into trust
process. What is your view of the counties' role in the land
into trust process?
Mr. Cladoosby. If you look at the current fee to trust
process, and if you ever had to, Senator Tester, jump through
the hoops and try to get a piece of land from fee into trust,
you would be banging your head against the wall like tribes are
sometimes. Counties do get an opportunity right now to voice
their opinions on fee to trust, according to the regulations.
A lot of counties are great partners to tribes around the
Nation. A lot of great relationships have been forged. The
counties are recognizing 21st century tribes for their economic
input into their counties. As you know, tribes do not have the
infrastructure, you have been to many reservations, and you
know the difference between a Montana city and a Montana
reservation. There is not the infrastructure in the reservation
like there is in a city. Tribes are not there yet. But some of
them are contributing millions of dollars to their local
economies and the counties are recognizing this.
So I think it is important that the counties have a voice
but not have a veto power. That is one thing that everyone
recognizes that the county should not be able to have a veto
power over this. This should be a decision that is made by the
Federal Government based on all the information that is
gathered. They should have every opportunity to weigh in on
these issues.
But the fee to trust issue is one that is very cumbersome.
The Chairman. Thanks again for your testimony, thanks for
your straight-up answers. I appreciate your being here.
And thank you for being here too, Nathan Small. I have a
few questions for you. Your testimony states that the township
created by the 1918 Act included 120 acres, of which 111 acres
are still held out of trust. Who currently owns the land within
the town site? How much of the land does the tribe expect to
acquire or place into trust in the near future, if in fact this
bill is enacted?
Mr. Small. I think that is some of the clarity that needs
to be addressed. As I indicated, we are in the process of
getting all that stuff together here, hopefully in the next few
weeks or next few days we will have that information available
on the clarity.
There is a section right along where the 1966 work, where
they did put it back into trust. But there is a little section
right in between that and what is called the railroad tracks
that is still out of trust. As I indicated, we are using some
of that land already. We have been able to put our enterprises,
offices are currently in that area right now. And as I
indicated, there are other parcels, plots that are utilized by
our tribal membership and our tribal government.
Right now again, I just finally got the legal description
of the land here, I finally got that and I was going to hand it
off to Mr. Washburn. There is several sections in there where
non-Indians have purchased land in there. Right now it is
because of an agreement between the county and the tribes, we
have both been taking care of the needs of the people in that
area. And as I indicated, we provide most of the services to
them already.
The Chairman. How much of that 120 do you think you could
get in? Let's say we got this bill signed by the 1st of July.
How much of that 120, or actually 111 acres, do you have any
projections for how much of that you could get in how quickly?
Mr. Small. I think the information, once it is gathered up,
we would be able to identify what is what out there. Right now
it is kind of in a checkerboard situation. We have had, of
course the BIA or Department or Interior wouldn't have any
information on this, because it is not held in trust. So they
are at a loss basically as to what this is all about. But the
tribes and the county have been, for the past few years, really
working diligently with each other, as indicated by Mr.
Cladoosby here, that some counties do work with you. This
Bingham County has really been a good county to work with, as
opposed to some of the other counties within our reservation.
The Chairman. That is good.
One of the recommendations we have heard regarding a
Carcieri fix is that we have to have requirements for certain
off-reservation acquisitions. We should make the process for
on-reservation acquisitions simpler. What has the Shoshone-
Bannock Tribes' experience with the on-reservation trust
acquisitions been?
Mr. Small. When they first started this process of getting
land into trust within the boundaries of the reservation, we
had to go to the regional office and ask them what was the
holdup. They told us there that, your superintendent can do
that on his own. So we went back to our superintendent and
asked him, why aren't you taking some of this land into trust.
Finally, basically kicked him in the butt to say, you had
better start moving on these lands within the boundaries of the
reservation.
After about 20 years, I think we got 20 acres back into
trust. That is not a lot, but there is still a lot more land
out there that needs to come back into trust within the
boundaries of the reservation. Our tribe has been working with
the Bonneville Power Administration in purchasing land together
outside the boundaries of the reservation. We have putting
those lands basically that are set aside to let those lands
remain natural, so there is always that type of land we have
been able to purchase outside the boundaries of the
reservation.
Then there are some lands that we are looking at to
purchase within our original territories that are within the
hunting districts of our reservation. We want to put our people
out there soon. We have been working diligently on some of
these things. When you have something that may prevent you from
doing those kinds of things, I don't think it is right. It is
our original homelands. If we have the ability to purchase
those, why not.
And it is not always for economic development. It is not
always about gaming. There are some places that we purchase
that we basically turn into wilderness areas, so that doesn't
become a public place. You just want places to become natural
or get back to its natural state.
The Chairman. Thank you.
Chairman Lowery, your testimony describes the importance of
enacting the bill as soon as possible, as the lack of
legislation would impact the settlement between the tribe and
Fish Springs Ranch. Tell me what happens if the bill is not
enacted.
Mr. Lowery. If the bill is not enacted, the remaining
amount of money of $3.6 million would not be given to the
tribe. Fish Springs Ranch would not be protected. The tribe
would pursue litigation if it was possible. If the lake was
damaged in any way, the lake water surface would go below 3,712
feet, somewhere in that area, it would probably impact the
tribes. Those are the pending issues that are facing us right
now.
The Chairman. Chairman Lowery, this bill would ratify a
settlement that address just a small portion of the tribe's
overall water rights. Are there lessons that your tribe has
learned that you can share with other tribes currently involved
in water right disputes?
Mr. Lowery. Yes. The Department of Justice and Interior
representatives, when they are involved in the negotiation, you
could solve those kinds of issues at certain times. The United
States didn't bear any results from it, and we did not
participate in the settlement negotiations.
So there are good ways of solving things. Right now we are
working on huge negotiations between California and Nevada and
the five signators on the Truckee River agreements. So there
are lessons to be learned if you can work through those and
there are benefits. In Nevada, right now, locally, the Nevada
people support the issue, because water is like gold out there.
You need drinking water, you need operating water, you need
ranch water. It is all there. So you have to work through all
those issues as you face the whole issue of settlement.
The Chairman. Water is getting to be like gold everywhere.
And rightfully so.
It is always good when the two primary stakeholders offer
joint statements in support of the bill, as is the case here.
Can you give us an idea how the settlement is viewed by other
tribes or parties within Nevada?
Mr. Lowery. In Nevada, the State of Nevada folks, they are
in agreement with it. Locally the tribe itself is in agreement,
supporting the issue of settlement. So it is all there in one
package.
The Chairman. Is anybody actively beating you up on it?
Mr. Lowery. No. A couple of tribal people.
[Laughter.]
The Chairman. Chairman Sprague, can you give us an update
on where your land acquisition case stands right now?
Mr. Sprague. Yes, sir, Mr. Chairman. The Supreme Court has
remanded our suit back to the U.S. District Court here in D.C.
The case is still pending before the court and we don't have a
timetable when that will be decided. As long as this lawsuit is
still pending, it will continue to hang over our tribe with the
uncertainty and local communities.
The Chairman. So there is no time frame for the decision?
Mr. Sprague. No, sir.
The Chairman. Okay. The Gun Lake Band gained Federal
recognition 16 years ago. Can you describe how the Carcieri
decision has impacted your tribe?
Mr. Sprague. The uncertainty of the land that current is in
trust is what is most troubling to me and my tribe. It is in
trust and we are doing what we are doing on it. But still, that
cloud hangs over our head because of the legislation and this
one individual. This is not a Carcieri fix for our tribe. This
bill just reaffirms a strong decision made by the Federal
Government in 2009. If this bill is passed, the Gun Lake Tribe
will still be in the same position under Carcieri as every
other tribe in the Country. We still have to show that we were
under Federal jurisdiction in 1934 to get land put in trust,
just like every other tribe. We are confident that we can meet
these standards.
The Chairman. Does the Band have any other pending land
applications or plans to acquire more land?
Mr. Sprague. Yes, sir, we do. We have several fee lands
that are currently working with the Bureau of Indian Affairs to
get in trust.
The Chairman. Okay. I think that is about it, we are
approaching vote time. I want to thank you all for your
statement today. The record is going to remain open for two
weeks. I encourage all stakeholders to submit written
statements for the record. These are important issues, Carcieri
is a huge issue. There is plenty of time to get your statements
in, so I would appreciate it if you would do that. I think it
could help us as we move this down the field.
I appreciate you folks coming in, you all traveled a long
way to get here. So we thank you for that. And with that, this
hearing is adjourned.
[Whereupon, at 3:46 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Dean Heller, U.S. Senator from Nevada
Chairman Tester and Vice-Chairman Barrasso, thank you for holding
today's hearing. I am pleased to give my support for this bipartisan
legislation to settle this water rights dispute and ratify this
agreement between the Pyramid Lake Paiute Tribe and Fish Springs Ranch.
It is an important component of future resource use plans in the
Truckee Meadows and will provide long-term certainty for the region.
I would also like to thank Pyramid Lake Paiute Tribal Chairman
Elwood Lowery for being here today to testify in support of our bill.
Chairman Lowery is a tireless advocate for the tribe, and it is a
pleasure to have him here in Washington. I look forward to working
closely with the tribe, Vidler Water Company, and my colleagues here in
the Senate as we navigate this settlement into law.
The legislation we are reviewing today authorizes, ratifies, and
confirms a settlement which was agreed to in 2007 between the Pyramid
Lake Paiute Tribe and Fish Springs Ranch. This legislation and
agreement represents many years of hard work to resolve these parties'
dispute over water rights in connection with the pumping and transport
of groundwater from the Honey Lake Valley Basin to the suburban Stead/
Lemmon Valley area north of Reno, NV.
In Nevada, water is a precious resource, and as you may be aware,
the West is currently experiencing a severe drought. Given these
circumstances, this ongoing water-rights dispute between these parties
has been a source of contention. That said, I am pleased that both the
Pyramid Lake Paiute Tribe and the Vidler Water Company, managing
partner for Fish Springs Ranch, have come together to settle this
dispute in a mutually beneficial manner.
The agreement this legislation would authorize and ratify provides
that the Tribe would not challenge Fish Springs' water rights and would
waive potential claims of damages, and in return, the Tribe would
receive $3.6 million plus interest from January 8, 2007 from Fish
Springs Ranch. It is important to note that this settlement has no
direct cost to the Federal Government and ends a pending lawsuit
against the Department of the Interior.
Given that this agreement terminates at the end of next year, I
urge my colleagues to support our Congressional Delegation's efforts to
move this legislation this year. It truly is a win-win for all parties
involved. Thank you again Chairman Tester and Vice-Chairman Barrasso
for the opportunity to testify, and I look forward to working with you
to advance this important Northern Nevada legislation.
______
Prepared Statement of Hon. Dianne Feinstein, U.S. Senator from
California
Chairman Tester and Vice-Chairman Barrasso, I am submitting this
statement to the Committee to express my support for a Carcieri fix,
but also to reiterate my view that any such fix must include reasonable
restrictions on off-reservation gaming and requirements for tribes and
local communities to work together to mitigate its effects.
As I have stated before, I do not question the need for a Carcieri
fix, but S. 2188, as written, leaves important gaming-related issues
unaddressed--issues that affect California significantly.
The scale of the tribal gaming industry in California is
staggering:
The American Gaming Association reported last year that
there are 466 tribal casinos across 28 states--California alone
has 70 (15 percent), second only to Oklahoma.
California has the highest number of tribal casino gaming
machines in the nation--more than 68,300. After Oklahoma, the
next state on the list only has about 28,000.
According to Meister's 2014 Indian Gaming Industry Report,
California's tribal casinos generated nearly $7 billion in
total revenues in 2012.
This is not what California envisioned when its voters passed a
state ballot measure in 2000--Proposition 1A--whereby voters agreed
that tribal gaming should be restricted to ``Indian lands.''
Voters that supported Proposition 1A could not have contemplated
``Indian lands'' to mean any land that tribes are able to purchase and
put into trust regardless of connection to and distance from the
tribes' original reservation lands.
However, it is clear that tribes are no longer content with casinos
on reservation lands. It is my view that these tribes are directly
contradicting Proposition 1A when they purchase non-contiguous lands,
often many miles away from their reservations, for the express purpose
of building more casinos. For example:
A landless tribe from Santa Cruz tried to open a casino near
Oakland.
Another landless tribe from Mendocino tried to do the same,
just miles down the road from Oakland in Richmond, California.
A tribe that has a reservation in Butte County convinced the
Secretary of the Interior to approve a casino nearly 50 miles
away in Yuba County, near Sacramento.
And a tribe with land in the Sierra foothills convinced the
secretary to approve a casino outside Fresno, more than 40
miles away.
In my previous testimony to the Committee, I have also pointed out
that the issue is not confined to California. Wisconsin, Arizona,
Michigan, Oregon, and Washington have all experienced such instances of
``reservation shopping.''
Reservation shopping invariably causes conflicts with local
communities in the vicinity of the acquired lands.
Large casinos often draw on local resources, including increased
costs for police, fire, water, sewer, and transportation.
However, when a tribe builds a casino on trust lands, it has no
legal obligation to mitigate effects on local communities, and the
Department of the Interior also has no obligation to address local
concerns.
The most troubling aspect is that these casinos are moving closer
and closer to urban centers to increase profits.
Previous research has shown that new casinos are associated with a
10 percent increase in violent crime and bankruptcy rates in the area.
Additionally, new casinos dramatically increase the rate of problem-
gambling and gambling addictions in local communities.
Furthermore, according to a 2013 report produced by the Institute
for American Values, new casinos are primarily filled with modern slot
machines that give players a sense of winning; however, they are
deliberately designed to take in more than they pay out.
People who play such slots as their primary form of gambling are
more likely to become problem gamblers. This is of special concern for
senior citizens and people on fixed incomes that use their limited
means to support gambling.
I understand the intent of a Carcieri fix--tribes recognized before
the 1934 Indian Reorganization Act should not have more rights than
their counterparts that were recognized after 1934.
However, any Carcieri fix must address concerns about tribal
gaming, and must provide local governments a meaningful way to
influence the terms and conditions of new casino developments in their
backyards.
I strongly urge the Committee to incorporate reforms to the process
of taking lands into trust for gaming purposes. These reforms include:
More stringent criteria to restrict which lands Indian
tribes can apply to take into trust for gaming purposes.
Permanent prohibition of gaming facilities on lands taken
into trust for non-gaming purposes.
Requirement for tribes to mitigate jurisdictional conflicts
and effects as a condition for trust acquisitions for gaming.
Longer notice and comment periods for local governments to
provide their perspectives, and requirement that the Department
of the Interior consider their input before finalizing a
decision.
When combined with the requirement that tribes demonstrate modern
and aboriginal ties to the land, I believe these reforms would
represent a real improvement in the fee to trust process.
It is my firm belief that casinos should not be built at the
expense of our local communities' resources, safety, and quality of
life.
I urge you to support and develop a more comprehensive Carcieri fix
that would allow for these concerns to be addressed.
Thank you for your leadership, and I look forward to working with
you to solve these issues and to pass a Carcieri fix soon.
______
Prepared Statement of Hon. Harry Reid, U.S. Senator from Nevada
Thank you Chairman Tester and Senator Barrasso for the opportunity
to submit testimony on this bipartisan bill that will allow an
important tribal water settlement in Nevada to move forward.
Last December, I sponsored the Pyramid Lake-Fish Springs Ranch
Settlement Act with my colleague Senator Heller and Representatives
Amodei and Horsford have sponsored the identical House version of the
legislation. I would like to take this opportunity to thank my
colleagues for their willingness to work together on this commonsense
legislation.
The legislation is simple. It authorizes and ratifies a settlement
bringing an end to a water rights dispute between two independent
parties--the Pyramid Lake Paiute Tribe and Fish Springs Ranch, LLC. The
legislation would allow the Tribe to collect over $4 million from Fish
Springs Ranch without costing the taxpayers anything or requiring any
action of the Department of the Interior. This bill recognizes the time
and effort that both the Tribe and Fish Springs Ranch have dedicated to
finding a solution to this dispute and allows their negotiated solution
to be enacted.
Back in 2005, the Bureau of Land Management (BLM) finalized an
Environmental Impact Statement (EIS) on several groundwater projects,
including Fish Springs Ranch, LLC's groundwater project in the Honey
Lake Valley for growth in an area just north of Reno, Nevada. The BLM
signed a Record of Decision (ROD) that allowed the project to move
forward, but there was evidence of a significant impact on the water
level of Pyramid Lake. The lake is the home of the Pyramid Lake Paiute
Tribe, one of only three desert terminus lakes in North America, vital
habitat for the endangered cui-ui and threatened Lahontan cutthroat
trout, and a major part of the Tribe's economy.
The Tribe filed suit against the BLM and the Federal District Court
granted the Tribe an injunction. At that time, the Tribe and Fish
Springs Ranch entered into negotiations securing an agreement in 2007
and have since been working on a supplement that was finalized in
September of last year. The agreement is that the construction of the
Fish Springs Ranch project would be allowed to move forward in return
for two payments $3.6 million (plus interest since 2007) and the
transfer of several thousand acres of land to the Tribe. The Tribe
would then waive the claims against Fish Springs Ranch for impacts or
injuries to existing and claimed Tribal water rights for this project.
The Tribe would also drop the claims against the BLM. Several parts of
this settlement have already been implemented, including the transfer
of land and the first $3.6 million payment to the Tribe.
For the settlement to be implemented in full, however, the United
States must authorize the Tribe to waive their claims and ensure that
the U.S. does not take action against Fish Springs on behalf of the
Tribe after enacting the full settlement. The legislation would allow
the Tribe to waive their claims, prohibit the U.S. from taking action
on behalf of the Tribe after the agreement is enacted and release the
U.S. from liability for the Tribe's waived claims.
This legislation is supported by both the Tribe and Fish Springs
Ranch and I urge the committee to act swiftly to endorse the agreement
made by the parties.
I look forward to working with the Senate Indian Affairs Committee
to move this bill forward. I request that my statement be included in
the record.
______
Prepared Statement of Matthew Cate, Executive Director, California
State Association of Counties
Dear Chairman Tester and Vice Chairman Barrasso:
On behalf of the California State Association of Counties (CSAC), I
am pleased to submit this statement for the record in connection with
the Committee's May 7, 2014 legislative hearing on several bills,
including S. 2188, which would provide the Secretary of the Interior
with authority to take land into trust for all Indian tribes.
As you are aware, Napa County Supervisor Diane Dillon appeared
before your Committee on November 20, 2013 to provide CSAC's
perspective on the significance of the U.S. Supreme Court's decision in
Carcieri v. Salazar. This statement is intended to supplement that
particular testimony. Additionally, our statement addresses comments
made by Assistant Secretary-Indian Affairs Kevin Washburn at the May 7,
2014 hearing.
As CSAC has consistently stated in previous testimony and in
correspondence to the Committee, our association supports the rights of
Indian tribes to self-governance and recognizes the need for tribes to
preserve their heritage and to pursue economic selfreliance. At the
same time, however, we do not believe that the Secretary should have
unbridled authority to take land into trust for tribes under a broken
fee-to-trust system.
Unfortunately, the ``clean fix'' approach--as embodied in S 2188
and in other current and previous legislative proposals--fails to
consider the major deficiencies in the fee-to-trust process and would
only perpetuate the problems that have resulted in years of expensive
and unproductive conflict between tribes and local governments. CSAC
therefore would like to continue to work with the Committee, members of
our congressional delegation, and tribes to find a lasting solution
that fixes the inequities caused by the Supreme Court's Carcieri
decision, as well as the current systemic flaws in the fee-to-trust
process.
As you know, we believe such a solution lies in a package of
broader trust reforms, consistent with the original intent of the IRA
and which would provide clear and enforceable trust acquisition
standards. In addition to standards, we believe legislation must
address the fact that the current process lacks sufficient notification
requirements. In many instances, local governments are afforded
limited, and often late, notice of pending trust land applications.
Accordingly, legislative changes need to be made to ensure that
affected governments receive timely notice of fee-to-trust applications
for tribal development projects and have adequate opportunity to
provide meaningful input.
CSAC also believes it is essential that legislation provide
incentives for intergovernmental agreements between tribes and local
governments to provide mitigation for adverse impacts of development
projects, including environmental and economic impacts from the
transfer of the land into trust. When land is placed into trust, the
property no longer falls under the auspices of local land use
jurisdiction, and the land is no longer subject to local taxing
authority; however, local governments are still required to provide
essential services, such as road construction, law enforcement, and
welfare services. In these difficult economic times, local governments
are struggling financially to continue to provide these critical
services. Intergovernmental agreements to mitigate these costs would be
beneficial for both tribal and local governments.
In our view, a balanced trust reform proposal would extend trust
land acquisition authority to the Secretary for federally recognized
tribes and would include clear direction to: (1) provide adequate
notice to local governments, (2) ensure that local governments are
consulted and have adequate opportunity to comment, (3) provide
incentives for tribes and local governments to work together, and (4)
provide for cooperating agreements that are enforceable. Attached to
this statement is specific legislative language developed by CSAC and
which has been previously provided to the Committee.
Finally, we would like to comment on a statement made by Assistant
Secretary Washburn during the May 7 hearing. In response to a question
from Vice Chairman Barrasso about the process for trust acquisitions,
Mr. Washburn indicated that the Department's recent Patchak regulations
``gave greater process to counties and local governments that are
interested in these issues and ensured better notice to them.''
While the rule provides for public notice to jurisdictional local
governments and other interested parties relative to an official
decision to acquire land into trust, we believe that the Department's
Patchak rule expedites trust land approvals to the detriment of all
interested parties and to the administrative process itself. In fact,
the rule puts local governments in a worse position by dramatically
altering the balance of equities and eliminating their ability to
obtain emergency relief after a decision to accept the land in trust,
but before the land achieves trust status. For a more complete look at
CSAC's views on Patchak, please see the attached comment letter.
We also would note that the Department's Patchak rule addresses the
process for appeals of final or near-final land acquisition decisions
and does not provide the type of critically important front-end fee-to-
trust process reforms that CSAC believes are necessary. Again, these
reforms should be addressed in legislation and should be a requisite
component of any potential Carcieri ``fix'' bill.
Thank you for considering our views regarding this very important
matter. CSAC remains committed to continuing to work with Congress to
develop a fee-to-trust process that balances the needs of both tribal
and local governments.
Attachments
Comprehensive Fee-To-Trust Reform Proposal
Section 5 of the Indian Reorganization Act, 25 U.S.C. 465
The Secretary of the Interior is authorized, in his discretion, to
acquire, through purchase, relinquishment, gift, exchange, or
assignment, any interest in lands, water rights, or surface rights to
lands, within or without existing reservations, including trust or
otherwise restricted allotments, whether the allottee be living or
deceased, for the purpose of providing land for Indians.
For the acquisition of such lands, interests in lands, water
rights, and surface rights, and for expenses incident to such
acquisition, there is authorized to be appropriated, out of any funds
in the Treasury not otherwise appropriated, a sum not to exceed
$2,000,000 in any one fiscal year: Provided, that no part of such funds
shall be used to acquire additional land outside of the exterior
boundaries of Navajo Indian Reservation for the Navajo Indians in
Arizona, nor in New Mexico, in the event that legislation to define the
exterior boundaries of the Navajo Indian Reservation in New Mexico, and
for other purposes, or similar legislation, becomes law.
The unexpended balances of any appropriations made pursuant to this
section shall remain available until expended.
Title to any lands or rights acquired pursuant to this Act or the
Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.)
shall be taken in the name of the United States in trust for the Indian
tribe or individual Indian for which the land is acquired, and such
lands or rights shall be exempt from State and local taxation.
The Secretary may acquire land in trust pursuant to this section
where the applicant has identified a specific use of the land and:
(a) the Indian tribe or individual Indian applicant has executed
enforceable agreements with each jurisdictional local government
addressing the impacts of the proposed trust acquisition; or
(b) in the absence of the agreements identified in subsection (a):
(1) the Indian tribe or individual Indian demonstrates, and
the Secretary determines, that:
(A) the land will be used for non-economic purposes,
including for religious, cultural, tribal housing, or
governmental facilities, and the applicant lacks sufficient
trust land for that purpose; or
(B) the land will be used for economic or gaming purposes
and the applicant has not achieved economic self-sufficiency
and lacks sufficient trust land for that purpose; and
(2) the Secretary determines, after consulting with
appropriate state and local officials, that the acquisition
would not be detrimental to the surrounding community and that
all significant jurisdictional conflicts and impacts, including
increased costs of services, lost revenues, and environmental
impacts, have been mitigated to the extent practicable.
(c) notice and a copy of any application, partial or complete, to
have land acquired in trust shall be provided by the Secretary to the
State and affected local government units within twenty (20) days of
receipt of the application, or of any supplement to it. The Secretary
shall provide affected local governmental units at least ninety (90)
days to submit comments from receipt of notice and a copy of the
complete application to have land acquired in trust.
(d) a material change in use of existing tribal trust land that
significantly increases impacts, including gaming or gaming-related
uses, shall require approval of the Secretary under this section, and
satisfy the requirements of the National Environmental Policy Act, 42
U.S.C. 4321 et seq., and, if applicable, the Indian Gaming Regulatory
Act, 25 U.S.C. 2701 et seq.;
(1) the Secretary shall notify the State and affected local
government units within twenty (20) days of any change in use
in trust land initiated by an applicant under this subsection.
(2) as soon as practicable following any change in use in
trust land initiated prior to review and approval under this
section, the Secretary shall take steps to stop the new use,
including suit in federal court, upon application by an
affected local government;
(3) any person may file an action under 5 U.S.C. 701 et seq.
to compel the Secretary to enjoin any change in use in trust
land initiated prior to review and approval under this section.
(e) notwithstanding any other provisions of law, the Secretary is
authorized to include restrictions on use in the deed transferred to
the United States to hold land in trust for the benefit of the Indian
tribe or individual Indian and shall consider restricting use in cases
involving significant jurisdictional and land use conflicts upon
application of governments having jurisdiction over the land;
(f) any agreement executed pursuant to subsection (a) of this
section shall be deemed approved by the Secretary and enforceable
according to the terms of the agreement upon acquisition in trust of
land by the Secretary;
(g) the Secretary shall promulgate regulations implementing these
amendments within 365 days of enactment.
California State Association of Counties
July 24, 2013
Ms. Elizabeth Appel,
Office of Regulatory Affairs & Collaborative Action,
United States Department of the Interior,
1849 C Street, NW,
Washington, DC.
Re: Federal Fee-to-Trust Process and BIA Proposed Rule,
``Land Acquisitions and Appeals of Land Acquisition
Decisions,'' 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15
Dear Ms. Appel:
On behalf of the California State Association of Counties (CSAC), I
am writing to express our strong concerns regarding the proposed rule
identified above, and the continued need for comprehensive reform of
the fee-to-trust process. Established in 1895, CSAC is the unified
voice on behalf of all 58 counties in California. Governed by elected
county supervisors, CSAC is a non-profit corporation dedicated to
representing California county governments before the federal
government, administrative agencies, and the California Legislature. We
appreciate this opportunity to comment on the Proposed Rule and the
fee-to-trust process.
Since 1994, CSAC has sought to correct long-standing deficiencies
in the fee-to-trust process that have resulted in expensive,
unproductive, and unnecessary conflict between tribes and local
governments. Jurisdiction over land is just as critical for counties as
it is for tribes, and the loss of sovereignty results in irreparable
harms to counties, including the loss of land use and regulatory
authority, tax revenue, and investment in nearby development and
infrastructure. The crucial role of counties demands a process that
provides sufficient notice to stakeholders, clear and enforceable
standards for fee-to-trust decisions, and a requirement that tribes
negotiate intergovernmental agreements that mitigate adverse impacts
and build relationships with affected communities.
The need for a comprehensive solution was reaffirmed recently in a
quantitative analysis of all 111 fee-to-trust decisions by the Pacific
Region BIA Office between 2001 and 2011. \1\ The analysis found that
BIA granted 100 percent of the proposed acquisition requests and in no
case did any Section 151 factor weigh against approval of an
application. \2\ The analysis further found that because of the lack of
clear guidance and objective criteria, Pacific Region BIA decisions
avoid substantive analysis in favor of filler considerations and
boilerplate language. \3\ The result is a broken process in which
community concerns are ignored or downplayed, applications are rubber-
stamped at a 100 percent acceptance rate, and tribes and local
governments are forced into unnecessary and unproductive conflict. \4\
The problem appears likely to worsen in the future, given recent
statements by the Department trumpeting its desire to ``keep that
freight train moving'' and ``keep restoring lands for tribes.'' \5\
---------------------------------------------------------------------------
\1\ (Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust
Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law
Review 250 (2013).
\2\ Id., pp. 278.
\3\ Id., pp. 286, 293, 302.
\4\ Id., pp. 292, 295, 297.
\5\ See ``Washburn Announces Plan of Attack for Patchak Plan,''
http://indiancountrytodaymedianetwork.com/2013/05/24/washburn-
announces-plan-attackpatchak- patch-149514.
---------------------------------------------------------------------------
The Proposed Rule appears intended to expedite trust approvals to
the detriment of all interested parties, and to the administrative
process itself. The Proposed Rule incorrectly asserts that because of
the decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak (2012) 132 S.Ct. 2199 (Patchak), eliminating the current 30-day
wait period (see Section 151.12(b)) would not effect a change in the
law or affect any parties' rights under current law. In fact, as set
forth below, the Proposed Rule would put local governments in a far
worse position by dramatically altering the balance of equities and
eliminating their ability to obtain emergency relief after a decision
to accept the land in trust, but before the land achieves trust status.
The Proposed Rule fails to recognize that the facts on the ground
and balance of equities changes when land achieves trust status and
development commences. The Proposed Rule directs the Secretary or other
BIA official to ``[p]romptly acquire the land in trust'' after a
decision becomes final, and the BIA is encouraging tribes to begin
development immediately upon acceptance of land into trust. Both of
these steps appear intended to foreclose concerned parties from
obtaining emergency relief, even with regard to trust decisions that
are clearly inappropriate and arbitrary. Courts are less likely to
order emergency relief if a tribe and its development partners have
invested resources and substantially implemented a gaming or other
development project. Indeed, courts may be unable to grant relief at
all if tribes decline to participate in the action and claim sovereign
immunity.
The Proposed Rule also contravenes protections in the
Administrative Procedures Act (APA) for parties seeking emergency
relief from administrative decisions. In particular, Section 705 of the
APA authorizes federal courts to postpone the effective date of an
agency action and to preserve status or rights pending conclusion of
the review proceedings. The Proposed Rule circumvents Section 705 by
pushing land transfers before an affected party can seek judicial
review and allow the courts to exercise their authority to review trust
transfers. Communities and local governments will be harmed because,
even if successful in the litigation, their success likely will not
bring back the tax revenue and other fees lost when the land went into
trust, nor remove the incompatible developments that are not permitted
under comprehensive local land use plans, now possible without the
Proposed Rule.
The BIA's new push for immediate project implementation also
appears intended to impede a court's ability to award complete relief.
Litigation can take years to reach a final decision, and Senator Dianne
Feinstein and others have correctly raised strong concerns about the
Department's practical ability to unwind a trust decision and remove
land from trust. \6\ The Proposed Rule ignores these concerns, and
includes no procedure for undoing a trust decision in a transparent and
orderly manner.
---------------------------------------------------------------------------
\6\ See Letter from Senator Dianne Feinstein to Secretary Ken
Salazar, January 31, 2013, p. 2.
---------------------------------------------------------------------------
The Department should not pretend that these harms are balanced by
the proposed requirements regarding the notification of decisions and
administrative appeal rights. These proposed changes are equally
flawed; the Proposed Rule would require communities and local
governments to make themselves known to BIA officials at every
decisionmaking level to receive written notice of a trust land
acquisition. It will be extremely difficult for anyone to sort through
local and national BIA organizational charts to try to determine how,
when, and by whom a particular application will be processed. BIA
decisionmaking is far from transparent today, and the Proposed Rule
would make the process even more opaque and participation more
difficult in the future.
CSAC supports a new paradigm in which counties are considered
meaningful and constructive stakeholders by the BIA in Indian land-
related determinations. CSAC and its member counties would strongly
support a revision to the Proposed Rule to provide immediate notice and
full information upon filing of trust applications, establish clear and
specific trust acquisition standards, create a mechanism for the BIA to
consult with counties and respond to comments on trust applications,
and ensure that adverse impacts are addressed through intergovernmental
agreements. CSAC believes these measures represent a real and lasting
solution that would reduce conflict and controversy, to the benefit of
tribes and all other parties.
If the Department instead intends to proceed with the Proposed
Rule's ``quick fix,'' CSAC recommends the following changes:
An additional regulation in Part 151 providing that, when a
party has appealed a trust decision to the Interior Board of
Indian Appeals, or has appeared before the Assistant
Secretary--Indian Affairs, the party shall be entitled upon
timely request to an automatic 30 day stay of a decision
approving a trust application. This would enable the party to
preserve its rights by seeking a judicial order staying the
effectiveness of any approval decision pending the court's
review of the validity of that decision.
Additional provisions requiring BIA to publish trust
applications on its website, provide regular updates as to the
status of its review, identify the decision-makers responsible
for an application, and provide contact information to allow
parties to identify themselves as interested parties. Parties
should be exempt from exhaustion requirements in the absence of
substantial compliance with these provisions.
Thank you for considering these comments.
Sincerely,
Matthew Cate,
Executive Director.
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Response to Written Questions Submitted by Hon. Lisa Murkowski to
Hon. Kevin Washburn
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