[Senate Hearing 115-435]
[From the U.S. Government Publishing Office]
S. Hrg. 115-435
S. 2788, H.R. 2606, AND H.R. 4032
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
NOVEMBER 14, 2018
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
34-340 PDF WASHINGTON : 2019
COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas TINA SMITH, Minnesota
JON KYL, Arizona
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on November 14, 2018................................ 1
Statement of Senator Cortez Masto................................ 36
Statement of Senator Heitkamp.................................... 3
Statement of Senator Hoeven...................................... 1
Statement of Senator Lankford.................................... 4
Statement of Senator Udall....................................... 2
Witnesses
Enos, Jr., Hon. Barney, Councilman, Gila River Indian Community.. 17
Prepared statement........................................... 18
Floyd, Hon. James R., Principal Chief, Muscogee (Creek) Nation... 10
Prepared statement........................................... 11
Lacounte, Darryl, Acting Director, Bureau of Indian Affairs, U.S.
Department of the Interior..................................... 4
Prepared statement........................................... 6
Yankton, Sr., Hon. Douglas, Vice-Chairman, Spirit Lake Tribe..... 14
Prepared statement........................................... 15
Appendix
Anoatubby, Hon. Bill, Governor, Chickasaw Nation, prepared
statement...................................................... 40
Batton, Hon. Gary, Chief, Choctaw Nation of Oklahoma, prepared
statement...................................................... 39
S. 2788, H.R. 2606, AND H.R. 4032
----------
WEDNESDAY, NOVEMBER 14, 2018
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:37 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. I call this oversight hearing
to order.
Today, the Committee will receive testimony on three bills:
S. 2788, a bill to repeal the act, entitled An Act to Confer
Jurisdiction on the State of North Dakota Over Offenses
Committed by or Against Indians on the Devils Lake Indian
Reservation; H.R. 2606, the Stigler Act Amendments of 2018; and
H.R. 4032, Gila River Indian Community Federal Rights-of-Way,
Easements and Boundary Clarification Act.
On April 26th, 2018, Senator Heitkamp introduced S. 2788.
If enacted, the bill would repeal a 1946 Federal statute that
authorized the State of North Dakota to prosecute crimes
committed on the Spirit Lake Indian Reservation. Since then,
the Spirit Lake Nation has established its own tribal court,
criminal code, and law enforcement and public safety system.
The repeal of this 1946 law would recognize the tribe's right
as a sovereign Nation to prosecute authorized crimes occurring
on the reservation.
On May 23rd, 2017, Representative Cole, along with
Representatives Lucas, Mullen and Russell, introduced H.R.
2606, the Stigler Act amendments of 2018. The Stigler Act of
1946 deals with the allotted lands of the Choctaw, Chickasaw,
Muscogee Creek, Cherokee and Seminole tribal members in
Oklahoma.
This bill, H.R. 2606, amends the Stigler Act of 1947 by
removing the one-half degree blood quantum requirement needed
to retain the restricted status of inherited, allotted tribal
member lands.
It strikes me that those two bills show the incredible
diversity we have in Indian Country, right? People think of it
as kind of monolithic out there, and it is so incredibly
diverse in so many ways. People just don't realize. It is
amazing.
On October 4th, 2017, the House Natural Resources Committee
on Indian, Insular and Alaska Native Affairs held a legislative
hearing on the bill. On August 21st, 2018, the bill was
favorably reported by the full House Natural Resources
Committee. On September 12th, 2018, the bill passed the House
by a voice vote.
The third bill before the Committee is H.R. 4032, the Gila
River Indian Community Federal Rights-of-Way Easements and
Boundary Clarification Act. H.R. 4032 was introduced by
Representative Tom O'Halleran on October 12th, 2017.
The purpose of the legislation is to confirm undocumented
Federal rights-of-way or easements on the Gila River Indian
Reservation, clarify the northern boundary of the tribe's
reservation, and to take certain land located in Maricopa
County and Pinal County, Arizona into trust for the benefit of
the tribe.
On February 6th, 2018, the House Natural Resources
Subcommittee on Indian, Insular and Alaska Native Affairs held
a legislative hearing on the bill. On July 13th, 2018, the bill
was reported favorably by the full House Natural Resources
Committee. On July 17th, 2018, the bill passed the House under
suspension of the rules by voice vote.Before I turn to Vice
Chairman Udall for any opening statement, I would like to
welcome Vice Chairman Doug Yankton, from the Spirit Lake Nation
in my home State of North Dakota. Welcome. I want to thank you
for traveling here today to be with us.
With that, I will turn to Vice Chairman Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Hoeven, for calling
today's legislative hearing.
I would like to acknowledge a constituent of mine in
attendance. Gregory Ballinger is a senior at the Institute of
American Indian Art in Santa Fe. Greg is Dine, from Gallup, New
Mexico. Welcome, Greg. Good to have you here today.
The three bills before us would impact tribes in North
Dakota, Arizona and Oklahoma. The bills correct historic wrongs
related to lands and jurisdiction of these tribes and work
toward fulfilling the United States' trust responsibility.
Senator Heitkamp's bill, S. 2788, would repeal a 1946 law
that conferred concurrent criminal jurisdiction on the State of
North Dakota and the Spirit Lake Tribe over on-reservation
misdemeanor crimes. The statute, which is still on the books,
is similar to other laws passed in the 1940s that this
Committee has worked to repeal.
In the decades since concurrent tribal-State jurisdiction
was conferred, the Spirit Lake Tribe has built up its tribal
courts, established its own law enforcement capability and
enacted its own comprehensive criminal code. I hope we can work
with Spirit Lake and the State to address the issues raised by
this antiquated law.
The second bill up for discussion today is the Stigler Act
Amendments of 2018. Congress passed the Stigler Act in 1947.
The law put inheritance limitations, based on blood quantum, on
restricted status lands held by members of the Five Civilized
Tribes of Oklahoma. H.R. 2606 would remove this requirement and
allow any enrolled heirs to inherit the land and maintain its
restricted status.
Lastly, H.R. 4032 would require the Department of the
Interior to take approximately 3,400 acres of land into trust
for the benefit of the Gila River Indian Community and clarify
the tribe's northern boundary and rights-of-way.
When the Gila River Indian Community was established in
1859, the Federal Government failed to survey its northern
boundaries in a timely manner. Encroachment from settlers
resulted in the tribe losing portions of its lands illegally.
Almost 150 years later, the Gila River Indian Community sought
resolution in the court, and ultimately, the Department of the
Interior agreed to a settlement.
As part of the settlement agreement, the tribe waived its
claims related to the boundary dispute in exchange for monetary
damages and for the return of ancestral lands identified by the
Bureau of Land Management for disposal. This legislation helps
fulfill the terms of the settlement.
With these bills, Congress has the opportunity to correct
historic wrongs, make clarifying changes, and ensure that the
United States is holding up its side of the government-to-
government relationship with the Gila River Indian Community,
the Spirit Lake Nation and the Five Civilized Tribes of
Oklahoma.
Thank you again, Mr. Chairman, for calling this hearing. I
look forward to today's testimony.
The Chairman. Thank you, Vice Chairman.
Senator Heitkamp.
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Mr. Chairman.
Very briefly, first, I want to welcome the Vice Chairman,
Doug Yankton, from the Spirit Lake Nation. He is here to
testify on this bill.
I want to remind this Committee that the primary
responsibility of any sovereign is to provide for the safety of
its people. Spirit Lake has been denied that opportunity for
far too long. This bill would right that wrong.
I think it is important to note that the State, which has
jurisdiction, has rarely used this authority and it only adds
to the complex jurisdictional challenges that arise when trying
to prosecute crimes occurring on the reservation. Repeal of
this outdated law would prevent concurrent misdemeanor
jurisdiction and would help protect and really, include an
expansion of that tribal sovereignty that is also important.
No other reservation in North Dakota faces this
bureaucratic challenge. The time has long passed since we have
taken up this issue. I hope this Committee can move quickly on
this bill.
As we heard with Savanna's Act, although we are talking
about heinous crimes of murder, we know that every day,
misdemeanor crimes occur on the reservation. Without the
ability to have enforcement action, women, children, other
tribal members continue to live in a state of unsafe
conditions.
As a sovereign, I know both my Chairwoman, Myra Pearson,
and Doug have worked very, very hard to provide for their
people. But that has to include providing that security and
that safety. That is a sovereign's responsibility. I know they
take that responsibility very seriously.
I want to personally again welcome the Honorable Doug
Yankton, Sr., for the work that he does and for the effort he
has put into bringing this to our attention so that we might
consider correcting this wrong.
Thank you, Mr. Chairman.
The Chairman. Other opening statements before I turn to you
for the purpose of an introduction? Okay, then I will turn to
Senator Lankford.
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Mr. Chairman, I want to introduce a
friend who is here today, the Principal Chief of the Muscogee
Creek Nation, Principal Chief Floyd. We are honored that you
are here. Thank you for coming and making time to be able to
come and talk about the Stigler Act, in particular. As the
chief executive of one of the largest tribes in the Nation, you
have a very busy schedule as well.
Many people in this room may not know that you have served
the Muscogee Creek Nation, but have also served the Nation of
the United States for a long time as the former Director of the
VA in eastern Oklahoma. You have been a valuable asset to the
Nation for a long time. We are honored that you would spend
time here to talk about the Stigler Act and be able to
articulate some of the issues. Thank you for being here.
The Chairman. Also, I want to welcome Darryl LaCounte,
Acting Director, Bureau of Indian Affairs, U.S. Department of
the Interior, Washington, D.C. Chief Floyd, thank you for being
here, also Vice Chairman Yankton. They should have named a
North Dakota town after you, though, not a South Dakota town.
Again, thank you for being here.
I would also welcome the Honorable Barney Enos, Jr.,
Councilman, Gila River Indian Community, Sacaton, Arizona.
Thank you for being here as well.
With that, we will start with Mr. LaCounte.
STATEMENT OF DARRYL LACOUNTE, ACTING DIRECTOR,
BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. LaCounte. Good afternoon, Chairman Hoeven, Vice
Chairman Udall, and members of the Committee.
I am Darryl LaCounte, the Acting Director for the Bureau of
Indian Affairs in the Department of the Interior. My permanent
role is Regional Director for the Bureau of Indian Affairs in
the Rocky Mountain Region in Montana.
Thank you for the opportunity to present the department's
views on three bills today: S. 2788, to repeal the Act entitled
An Act to Confer Jurisdiction on the State of North Dakota Over
Offenses Committed By or Against Indians on the Devils Lake
Indian Reservation; H.R. 2606 to amend the Act of August 4,
1947, commonly known as the Stigler Act with respect to
restrictions applicable to Indians of the Five Civilized Tribes
of Oklahoma; and H.R. 4032, the Gila River Indian Community
Federal Rights-of-Way Easements and Boundaries Clarification
Act.
Improving public safety in Indian Country is a bipartisan
priority. In the past, Congress has enacted legislation that
allowed States to have criminal jurisdiction within Indian
Country. As a result of this legislation, States were allowed
to exercise criminal jurisdiction over tribal members on the
reservation, removing the exclusive rights of tribes not to
have State law enforced on their tribal citizens on the
reservation.
S. 2788 reflects the modern Federal Indian policies of
self-determination and self-governance. S. 2788 clarifies a
muddled and complex jurisdictional scheme. The Spirit Lake
Tribe in North Dakota currently operates its own tribal court.
The Bureau of Indian Affairs, Office of Justice Services
provides direct law enforcement and detention services.
If the legislation were enacted, only the tribe or the
Federal Government would have criminal jurisdiction over
offenses by or against Indians on the Devils Lake Indian
Reservation. As an advocate of tribal sovereignty and self-
determination, the department supports S. 2788.
The lands of the Five Civilized Tribes could not be
allotted under the General Allotment Act because of the tribe's
fee ownership, yet tribes were eventually forced to allot their
lands in severalty. The Stigler Act, as amended by the Act of
August 11th, 1955, 69 Stat. 666, now governs the restricted
status of the Five Tribes' allotted lands based on the Five
Tribes blood quantum of the Indian landowner.
Section 1 of the Stigler Act provides that all restrictions
are removed at the death of the Indian landowner, provided that
heirs and devisees of one-half blood or more of the Five
Civilized Tribes may not convey lands that were restricted in
the hands of the person from whom they were acquired without
the approval of the county, now district, court in the county
where the land is located.
The effect of Section 1 is that, when a person owning
restricted land passes away, only the heirs of at least one-
half blood of the Five Civilized Tribes inherit their interest
in a protected, restricted, status. The department is aware of
no other tribes in the Country where the trust or restricted
status of their allotted lands are dependent upon the degree of
blood of the owner.
The Stigler Act is primarily responsible for massive loss
of the Five Civilized Tribes' land base. Survey of tribal lands
began in 1897 in preparation for the allotment of the Five
Tribes lands. By 1916, approximately 15,794,000 acres had been
allotted to members of the Five Tribes. By contrast, the Annual
Acreage Report prepared by the Bureau of Indian Affairs
indicates approximately 381,474 acres remained in restricted
status to the members of the Five Tribes in 2012.
Though no more current acreage report is available, the
Eastern Oklahoma Region is confident that thousands more acres
have passed out of restricted status into fee simple status
since 2012. Thus, our best estimate now is that less than 2
percent of the lands originally allotted to members of the Five
Tribes remain in restricted status.
Unlike previous bills where the objective was to amend the
Stigler Act, this bill has a single objective: to eliminate the
blood quantum requirement. This bill would not increase the
amount of restricted land in Oklahoma, nor would it change the
unique Five Tribes' system of approving conveyances,
determining heirs, probating estates, partitioning lands, or
quieting titles through the State district courts.
It is the view of the department that this Act would be of
great benefit to the Cherokee, Choctaw, Seminole, Chickasaw,
and Muscogee Creek Nations, and of greater benefit to those few
of their tribal citizens who are fortunate enough to still hold
lands in restricted status. Their citizens would be allowed to
inherit restricted or Indian lands without regard to their
blood quantum, slowing the amount of land falling out of
restricted status and allowing them to retain their land base.
The department supports H.R. 2606.
In December 2006, the Gila River Indian Community brought
action in the United States District Court for the District of
Columbia, seeking relief through ``a full and complete
accounting of the Community's trust property and funds.'' The
Community's priority claim in the litigation concerned the
United States' alleged obligation to confirm the legal status
of all rights-of-way on the reservation. The Community
specifically claimed failure to properly document these rights-
of-way with grants of easements constituting a continuing
breach of trust.
The parties engaged in a long, yet extremely cooperative,
alternative dispute resolution process that resulted in a
settlement that resolved all historical mismanagement claims.
The settlement agreement was executed in June 2016 and the
breach of trust suit was dismissed in March 2017.
I am running out of time so I am going to skip right to the
end. The department supports the enactment of H.R. 4032. We
also offer some additional background information and welcome
the opportunity to work with the Committee, the sponsor and co-
sponsors of H.R. 4032 on recommendations to achieve the goals
of the bill.
Thank you for the opportunity to provide the department's
views on these bills. This concludes my statement. I would be
happy to answer any questions.
[The prepared statement of Mr. LaCounte follows:]
Prepared Statement of Darryl Lacounte, Acting Director, Bureau of
Indian Affairs, U.S. Department of the Interior
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee, my name is Darryl LaCounte and I am the Acting Director
for the Bureau of Indian Affairs at the Department of the Interior. I
transitioned into this role from acting as the Deputy Director--Trust
Services. My permanent role is Regional Director for the Rocky Mountain
Region. As a Regional Director, I am responsible for all programs,
services, and costs provided to and upholding the trust with Tribes in
the region.
Thank you for the opportunity to present an update on behalf of the
Department regarding HR 2606.
Five Tribes Allotments and Stigler Act Background
The Tribes referred to in the Act of August 4, 1947, 61 Stat. 731
(the ``Stigler Act''), as the Five Civilized Tribes (the Cherokee,
Choctaw, Chickasaw, Creek, and Seminole Tribes of Oklahoma) were
removed from their homelands in the southeastern part of the United
States pursuant to treaties wherein the United States agreed to convey
lands to these tribes west of the Mississippi River. By 1835, the Five
Civilized Tribes occupied nearly all of present-day Oklahoma.
The lands of the Five Civilized Tribes could not be allotted under
the General Allotment Act because of the Tribe's fee ownership.
However, the tribes were eventually forced to agree to allot their
lands in severalty. Allotment of the lands of the Five Tribes was by
fee patent signed by the Chiefs or Governor of the Tribes in accordance
with the individual allotment agreements.
The allotments varied greatly in size from 40 to 220 acres.
Separate deeds were issued for ``homestead'' and ``surplus''
allotments, and the restrictions varied by the type of allotment, the
allottee's Tribe, and the allottee's degree of Indian blood or lack
thereof.
The Allotment Agreements between the United States and the
individual tribes provided for varying periods of inalienability for
the allotments. However, after allotment, Congress passed laws which
restricted the alienation of some allotments and allowed others to be
freely alienable. This series of mostly uncodified Acts governs
restricted status of the land and funds of the Five Civilized Tribes.
The Stigler Act, as amended by the Act of August 11, 1955, 69 Stat.
666, now governs the restricted status of the Five Tribes' allotted
lands based on the Five Tribes blood quantum of the Indian landowner.
Section 1 of the Stigler Act provides that all restrictions are
removed at the death of the Indian landowner, provided that heirs and
devisees of one-half blood or more of the Five Civilized Tribes may not
convey lands that were restricted in the hands of the person from whom
they were acquired without the approval of the county (now district)
court in the county where the land is located.
The effect of this Section of the Act is that, when a person owning
restricted land passes away, only his heirs of at least one-half blood
of the Five Civilized Tribes inherit their interest in a protected
``restricted'' status. The Department is aware of no other Tribes in
the country where the trust or restricted status of their allotted
lands are dependent upon the degree of blood of the owner.
H.R. 2606
The Stigler Act is primarily responsible for the massive loss of
the Five Civilized Tribes' land base. Survey of tribal lands began in
1897 in preparation for the allotment of the Five Tribes lands. By
1916, approximately 15,794,238 acres had been allotted to members of
the Five Tribes. By contrast, the Annual Acreage Report prepared by the
Bureau of Indian Affairs indicates approximately 381,474 acres remained
restricted to the members of the Five Tribes in 2012. Though no more
current Acreage Report is available, the Eastern Oklahoma Region is
confident that thousands more acres have passed out of restricted
status into fee simple status since 2012. Thus, our best estimate now
is that less than 2 percent of the lands originally allotted to members
of the Five Tribes remain in restricted status.
Unlike previous Bills where the objective was to amend the Stigler
Act, this Bill has a single objective: to eliminate the blood quantum
requirement. This Bill would not increase the amount of restricted land
in Oklahoma, nor would it change the unique Five Tribes' system of
approving conveyances, determining heirs, probating estates,
partitioning lands, or quieting titles through the state district
courts. In the view of the Department, this Act would be of great
benefit to the Cherokee, Choctaw, Seminole, Chickasaw, and Muscogee
(Creek) Nations, and of greater benefit to those few of their tribal
citizens who are fortunate enough to still hold lands in restricted
status.
H.R. 2606, the Stigler Act Amendments of 2017, would greatly
benefit the Cherokee, Choctaw, Seminole, Chickasaw, and Muscogee
(Creek) Nations. This will further benefit the Tribes by allowing their
citizens to inherit restricted or ``Indian Lands'' without regard to
their ``blood quantum''. Also by slowing the amount of land falling out
of restricted status and allowing them to retain their land base. The
Department supports H.R. 2606.
______
Thank you for the opportunity to present this statement on behalf
of the Department regarding S. 2788, a bill to repeal the Act entitled
``An Act to confer jurisdiction on the State of North Dakota over
offenses committed by or against Indians on the Devils Lake Indian
Reservation''.
Criminal Jurisdiction in Indian Country
Improving public safety in Indian Country is a bipartisan priority.
In the past, Congress has enacted legislation that allowed states to
have criminal jurisdiction within Indian Country. As a result of this
legislation, states were allowed to exercise criminal jurisdiction over
tribal members on the reservation, removing the exclusive rights of the
tribe to not have state law enforced on their tribal citizens on the
reservation.
Secretary Zinke is an advocate for tribal sovereignty and self-
determination. S. 2788 reflects the modern federal Indian policies of
self-determination and self-governance. S. 2788 clarifies a muddled and
complex jurisdictional scheme. Accordingly, the Department supports S.
2788.
S. 2788
The Spirit Lake Tribe (``the Tribe''), located in North Dakota
currently operates its own tribal court, and the BIA Office of Justice
Services provides direct law enforcement and detention services. If the
legislation were enacted, only the Tribe or the Federal Government
would have criminal jurisdiction over offenses by or against Indians on
the Devils Lake Indian Reservation.
Enactment of S. 2788 would ensure that the Tribe is treated
similarly to others across Indian country where either the BIA or the
Tribe provides public safety services.
Conclusion
Thank you for providing the Department the opportunity to testify
on S. 2788. I am available to answer any questions the Committee
members may have.
______
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee, thank you for the opportunity to testify on H.R. 4032
``Gila River Indian Community Federal Rights-of-Way, Easements and
Boundary Clarification Act (Act).'' The Department supports the
enactment of H.R. 4032, and offers some additional background
information and other recommendations that we encourage the Committee
to consider at this time.
Background
In December 2006, the Gila River Indian Community, hereinafter
referred to as ``the Community,'' brought an action in the United
States District Court for the District of Columbia, seeking declaratory
and injunctive relief through ``a full and complete accounting of the
Community's trust property and funds.'' The Community's priority claim
in the litigation concerned the United States' alleged obligation to
confirm the legal status of all rights-of-way on the Reservation. More
specifically, the Community contended that the Department's failure to
properly document these rights-of-way with grants of easement
constituted a continuing breach of trust. Many of the alleged
undocumented rights-of-way within the Gila River Indian Reservation are
federal irrigation or power facilities, or Bureau of Indian Affairs
roads, giving rise to allegations that the United States itself is now
in trespass.
From the onset of the litigation, the parties engaged in a long,
yet extremely cooperative, alternative dispute resolution process that
resulted in a settlement that resolved all historical mismanagement
claims for $12.5 million. The settlement agreement was executed in June
2016 and the breach of trust suit was dismissed in March 2017. In
separate but related negotiations, the parties, the Community and the
United States, continued to collaborate on addressing the other
outstanding issues that the Community identified as being critical to
its economic, cultural and sovereign best interests.
H.R. 4032
Although the 2016 settlement agreement was not conditioned on any
proposed legislation, it is the Department's understanding that the
Community considers H.R. 4032 to be essential to the resolution of the
rights-of-way issues for the protection of the Community property
rights moving forward. The Department's review of the legislation
identifies the objectives of the legislation as:
(1) Establish, ratify, confirm and document the legal status
of certain federal electrical, irrigation, and road rights-of-
way or easements that now exist--undocumented or otherwise--
within the exterior boundaries of the Reservation, as of the
date of the enactment;
(2) Establish a fixed location for the northern boundary of
the Reservation, via resurvey (The resurvey of the fixed
northern boundary has been completed and clearly marked in
conformance with the public system of surveys by the Dependent
Resurvey of Township 1 North, Range 1 East, Gila and Salt River
Meridian, Arizona, conducted by Gordon R. Bubel, as shown on
the plat and described in the field notes at Book 6060,
approved November 22, 2016, and officially filed on November
23, 2016, on file with the Bureau of Land Management''.,
(Notice of Plat Filing was published in the Federal Register,
Volume 82, No. 11, Page 5599, January 18, 2017).);
(3) Direct the Secretary to transfer certain public lands to
the Community, in trust status; and
(4) Substitute the benefits provided to the Community, its
members and individual landowners, for any claims that the
Community, its members and landowners may have had against the
United States, in connection with any alleged failures relating
to location of the northern boundary and/or the documentation
and management of rights-of-way within the Reservation; and
(5) Authorize funds necessary for the United States to meet
the obligations under this Act.
Section 4 of the bill directs the Secretary to take two parcels of
land--known collectively as the Lower Sonoran Lands--into trust for the
benefit of the Community. The parcels are located on the western and
southern margins of the Gila River Indian Reservation in Maricopa and
Pinal Counties, Arizona. These federal lands, totaling about 3,380.69
acres, are currently managed by the Bureau of Land Management (BLM) for
multiple uses. The Community has historical ties to these lands and the
parcels include cultural resources and archaeological sites that are of
considerable significance to the Community. The cultural and
archaeological resources located within these parcels include plant,
animal, and raw material gathering areas; areas of religious
significance; trail systems; and transportation routes with cultural
and religious significance. Under BLM management there is one grazing
permittee and three rights-of-way on the parcels. The BLM supports,
with some minor technical corrections, Section 4.
The Lower Sonoran Lands were designated as suitable for disposal in
the 2012 BLM Lower Sonoran Record of Decision and Resource Management
Plan because they are isolated parcels, surrounded by non-BLM managed
lands. No mineral values have been identified on the parcels. They are
not suitable for management by another Federal department or agency,
and are not needed for any other federal purpose. The BLM has initiated
the process of a noncompetitive direct sale of the two parcels,
including the subsurface, to the Community by placing a public notice
in the Federal Register Volume 83, No. 103, Page 24489, May 29, 2018.
H.R. 4032 would also modify that portion of the Reservation
boundary that was described by Executive Order in 1879 as being along
the middle of the Salt River, to fix the boundary in accordance with
the 1920 Harrington survey. The historic boundary identified in the
executive order in 1879 has shifted, along with the course of the Salt
River, creating uncertainty as to the precise location of the boundary
between the Reservation and adjoining patented lands. The Department,
in coordination with the BLM and the Community, completed the resurvey
of the fixed northern boundary in conformance with the public system of
surveys by the Dependent Resurvey of Township 1 North, Range 1 East,
Gila and Salt River Meridian, Arizona, conducted by Gordon R. Bubel, as
shown on the plat and published in the Federal Register, Volume 82, No.
11, Page 5599, January 18, 2017. The Record of Dependant Resurvey is on
file with BLM. The Department recommends that the H.R. 4032 also
expressly quiet the title of the affected parties and delete Section 3,
``Disputed Area'' definition because the fixed northern boundary has
been re-surveyed and there is no discussion of a ``Disputed Area''
within the Bill.
H.R. 4032 would also establish, ratify and confirm those rights-of-
way depicted on the Federal and Tribal Facilities Map referenced in the
bill, as of the date of enactment, with the exact location of the
confirmed rights-of-way to be defined by subsequent survey. H.R. 4032
would also authorize the appropriations of the funds needed to support
the Departmental survey of the ``rights-of-way'' and all other actions
required or authorized in the bill, with those surveys to be completed
within a six-year period. With regard to the ``other actions
required,'' the bill provides that the ``Federal Government shall be
considered the applicant or grantee.''
We note that the reference in section 8(c) of the bill to the
regulation on cancellation is outdated and should be changed to
correctly reference 25 CFR 169.404-409.
The Department welcomes the opportunity to work with the Committee
and the sponsor and co-sponsors of H.R. 4032 to achieve the goals of
H.R. 4032. Thank you again for the opportunity to provide the
Department's views.
This concludes my statement and I would be happy to answer any
questions the Committee may have.
The Chairman. Thank you, Director LaCounte.
Chairman Floyd.
STATEMENT OF HON. JAMES R. FLOYD, PRINCIPAL CHIEF, MUSCOGEE
(CREEK) NATION
Mr. Floyd. Thank you, Mr. Chairman, Mr. Udall, Vice
Chairman of the Committee, and my Senator, Senator Lankford and
other members of the Committee that are here this afternoon.
I am James Floyd, Principal Chief of the Muscogee Creek
Nation. I am pleased to appear before you this afternoon to
provide testimony on H.R. 2606, the Stigler Act Amendments of
2018.
The Act of August 4, 1947, 61 Stat. 731, commonly referred
to as the 1947 Act or the Stigler Act, is a Federal law related
only to restricted lands of the Five Civilized Tribes of
Oklahoma, which include the Cherokee, Choctaw, Chickasaw Creek
and Seminole.
The 1947 Act created a detrimental disparity between the
Five Tribes and all other Indian tribes regarding the
restricted property allotments of their tribal members. The
1947 Act established a one-half minimum blood quantum
requirement to maintain the restricted status of former
allotted lands based on the tribal member's certificate of
degree of Indian blood.
This one-half degree blood requirement imposed only on the
Five Tribes is arbitrary and unjust. All other tribes,
including the 33 other tribes in the State of Oklahoma, are
excluded from this requirement.
As one of the affected tribes, the Muscogee Creek Nation
seeks to protect the rights of our tribal members by supporting
the amendments to the Stigler Act. The tribal members in
eastern Oklahoma should have the same right regarding our
Indian land as the other 6.7 million Native Americans in the
United States who strongly support H.R. 2606 in order for our
tribes to preserve our lands the same as the other 573 tribes
in the United States who own land.
Tribal members and land are the basis for our jurisdiction,
and jurisdiction is the basis for our sovereignty. Without
amendment, the Stigler Act will continue to systematically
destroy the land base of the Five Tribes by converting
restricted Indian land into State fee land without the consent
of the tribal members of the Five Tribes.
I would like to clarify some possible misconceptions of
H.R. 2606. It will not be retroactive. Only land that is
currently held in restricted status will be eligible to
maintain its Indian land status.
Title to many of these allotted lands can be brought up to
date to current ownership with the passage of these amendments.
Tribal members will be able to probate the estate of their
ancestors without the fear of losing the restricted status of
their family lands because of blood quantum.
Leasing, right-of-way and other economic development will
be easier with clear title and ownership of the lands. There
will be no loss of State or county income from property taxes.
That portion of the Stigler Act, in particular Section 6(a), is
not being amended, which sets out the taxable status of
restricted land for the Five Tribes.
The land base of the Five Tribes is an integral part of the
culture and heritage of all tribal members of Eastern Oklahoma.
It contains our homesteads, our family cemeteries, our
traditional century-old churches and our ceremonial grounds. It
is our hope for providing for our citizens now and in the
future.
It has been almost 117 years since the Muscogee Creek
Nation allotted its tribally-owned land base to individual
members pursuant to congressional order. Restrictions were
enacted at that time with the purpose of keeping allotted lands
in the hands of tribal citizens.
The Stigler Act defied that intent. Today, no original
allottees are living and only 133,399 acres of the 2.9 million
acres of land originally allotted to the Muscogee Creek
citizens remain, a tiny fraction of what was once a protected
individual land base. If not resolved quickly, we could lose
everything, our land, our history, our stability and our
sovereignty.
I am grateful to those on the Committee who are working to
rectify this egregious injustice and to help our tribes have
equal status with all other tribes. Though we can't get back
what we lost, you can help us protect what remains.
In closing, I ask your permission to submit for this
hearing record the statement of the Inter-Tribal Council of the
Five Civilized Tribes, of which the Muscogee Creek Nation is a
member. This statement elaborates on the points I have raised
today and is consistent with my remarks.
Thank you for allowing me to appear before you this
afternoon. I am prepared to answer any questions you may have.
[The prepared statement of Mr. Floyd and the referenced
information follows:]
Prepared Statement of Hon. James R. Floyd, Principal Chief, Muscogee
(Creek) Nation
Mr. Chairman, members of the Committee:
I am James Floyd, Principal Chief of The Muscogee (Creek) Nation. I
am pleased to appear before you today to provide testimony on H.R.
2606, the Stigler Act Amendments of 2018. The Act of August 4, 1947 (61
Stat. 731), commonly referred to as the ``1947 Act'' or the ``Stigler
Act,'' is a federal law related only to restricted lands of the Five
Civilized Tribes of Oklahoma, which include the Cherokee, Choctaw,
Chickasaw, Creek and Seminole.
The 1947 Act created a detrimental disparity between these Five
Tribes and all other Indian tribes regarding the restricted property
allotments of their tribal members. The 1947 Act established a one-half
minimum blood quantum requirement to maintain the restricted status of
former allotment lands based on a tribal member's Certificate of Degree
of Indian Blood. This one-half degree blood requirement imposed only on
the Five Tribes is arbitrary and unjust. All other tribes, including
the 33 other tribes in Oklahoma, are excluded from this requirement.
As one of the affected Five Tribes, The Muscogee (Creek) Nation
seeks to protect the rights of our tribal members by supporting the
amendments to the Stigler Act. The tribal members in Eastern Oklahoma
should have the same rights regarding our Indian land as the other 6.7
million Native Americans in the United States. We strongly support H.R.
2606 in order for our tribes to preserve our lands, the same as the
other 573 tribes in the United States who own land.
Tribal members and land are the basis for our jurisdiction, and
jurisdiction is the basis for our sovereignty. Without amendment, the
Stigler Act will continue to systematically destroy the land base of
the Five Tribes by converting restricted Indian land into state land,
without the consent of tribal members of the Five Tribes.
I want to clarify some possible misconceptions of H.R. 2606:
[bullet] It will not be retroactive.
[bullet] Only land that is currently held in restricted status will
be eligible to maintain its Indian land status.
[bullet] Title to many of these allotted lands can be brought up to
date to current ownership with the passage of these amendments.
[bullet] Members will be able to probate the estate of their
ancestors without the fear of losing the restricted status of
their family lands because of blood quantum.
[bullet] Leasing, right-of-way and other economic development will be
easier with clear title and ownership of the lands.
[bullet] There will be no loss of state or county income from
property taxes. That portion of the Stigler Act, in particular
Sec. 6 (a), is not being amended which sets out the taxable
status of restricted land for Five Tribes.
The land base of the Five Tribes is an integral part of the culture
and the heritage of all tribal members in Eastern Oklahoma. It contains
our homesteads, our family cemeteries, our traditional century-old
churches, and our ceremonial grounds. It is our hope for providing for
our citizens now and in the future.
It has been almost 117 years since The Muscogee (Creek) Nation
allotted its tribally-owned land base to individual members, pursuant
to Congressional Order. Restrictions were enacted at that time with the
purpose of keeping allotted lands in the hands of tribal citizens. The
Stigler Act defied that intent. Today, no original allottees are living
and only 133,399 acres of the 2.993 millions of acres of land
originally allotted to Muscogee (Creek) citizens remain, a tiny
fraction of what was once our protected individual land base. If not
resolved quickly, we could lose everything: our land, our history, our
stability, and our sovereignty.
I am grateful to those on this Committee who are working to rectify
this egregious injustice; to help our tribes have equal status with all
other tribes. Though we can't get back what we lost, you can help us
preserve what remains.
In closing, I ask your permission to submit for this hearing
record, the statement of the InterTribal Council of the Five Civilized
Tribes, of which The Muscogee (Creek) Nation is a member. The statement
elaborates on the points I have raised today and is consistent with my
remarks. Thank you for allowing me to appear before you today and I am
prepared to respond to any questions you may have.
The (1) Map displaying total number of restricted fee and
unrestricted fee acres within the jurisdiction of the Five
Civilized Tribes in 1916 (2) Map displaying total number of
restricted fee and unrestricted feeacres within the
jurisdiction of the Five Civilized Tribes in 2015 (3)
Resolution 15-19 adopted by the Inter-tribal Council of the
Five Civilized Tribes on July 10th, 2015 have been retained in
the Committee files.
Attachment
Prepared Statement of Hon. Bill John Baker, Principal Chief, Cherokee
Nation; President, Inter-Tribal Council of the Five Civilized Tribes
Mr. Chairman, I am Bill John Baker, Principal Chief of the Cherokee
Nation, and President of the Inter-Tribal Council of the Five Civilized
Tribes. I am pleased to provide testimony today on H.R. 2606, the
Stigler Act Amendments of 2018, on behalf of the Inter-Tribal Council
of the Five Civilized Tribes (Inter-Tribal Council). The Inter-Tribal
Council is an organization comprised of the tribal governments of the
Muscogee Creek Nation, Seminole Nation, Choctaw Nation, Chickasaw
Nation and the Cherokee Nation. Together our tribes represent more than
650,000 tribal citizens throughout the United States, or about a
quarter of the entire population of Indian country.
I am here today to support H.R. 2606, which amends an archaic law
enacted in 1947 that unfairly burdens citizens of the Five Tribes. This
law has led to devastating land loss, which is inconsistent with modern
federal policy and practice toward Indian tribes to increase tribal
land holdings and restore tribal homelands. It is time to amend this
Termination Era law that originates from a less enlightened time when
federal policy was designed to dramatically diminish tribal homelands.
So today, I am here on behalf of our Five Tribes to respectfully ask
you to remedy this longstanding injustice.
I believe it is critical to first briefly examine the history of
the lands of the Five Tribes, which is unique to all of Indian country.
Unlike the reservations of other tribes, the United States did not
hold title to the Five Tribes lands. Instead, at the insistence of our
tribal leaders at the time of our removal from our ancestral homelands,
the United States deeded fee simple title to those lands to each Tribe,
in exchange for huge tribal cessions of lands in the southeastern
portion of the United States. Perhaps foreseeing the struggles to come,
the leaders of the Five Tribes did not want the United States to have
any ownership interest in their new lands, which were located in an
area that would one day become the state of Oklahoma.
Because of this fee simple ownership, the United States had
considerable difficulty forcing the Five Tribes to break apart their
remaining tribal lands into individual allotments during the tribal
land allotment era in the late nineteenth century. Despite these
difficulties, Congress was ultimately successful in enacting a series
of laws to force the Five Tribes to allot their lands. Due to the fee
simple ownership of the tribe, tribal allotments were also held in fee
simple by the individual Indian instead of held in trust by the United
States as was common with other tribal allotments nationwide. There
were, however, special restrictions on the owners' disposition of their
allotments put in place by Congress. These restrictions prevented the
tribal citizens from alienating, conveying, leasing, mortgaging or
putting other liens or encumbrances on their allotments. The stated
purpose of these restrictions was to keep allotted lands in the hands
of tribal citizens.
Almost immediately after the restricted fee allotments were issued
to the citizens of the Five Tribes, however, non-Indian interests were
intent upon removing those restrictions and obtaining the lands that
belonged to the citizens of the Five Tribes. In the early parts of the
twentieth century, several laws were passed by Congress to produce this
result, by removing restrictions based on the degree of Indian blood
quantum of the individual owner. The most recent such law was the 1947
Act, also known as the Stigler Act, an uncodified law which prevents an
Indian from inheriting land in restricted fee if he or she has a blood
quantum that is below one-half degree of Indian blood. When restricted
fee land is passed to heirs with less than one-half blood quantum, then
all of the restrictions against alienation that have protected the
property and its owner are stripped away forever.
With this background in mind, I would like to turn to the modern
issues facing the Five Tribes, and how this legislation helps address
those challenges.
The antiquated blood quantum requirement contained in the Stigler
Act is unique to the Five Tribes. In no other tribe in the United
States do the lands of tribal citizens lose their restricted status due
to the blood quantum of the individual Indian. While these provisions
of the Stigler Act were unusual enough at the time they were drafted,
they are indefensible today and defeat the goals of modern federal
policy. In an era where there is broad support for tribal self-
determination, and where federal dollars are devoted to increasing and
protecting tribal land bases, it is time to put an end to the blood
quantum based distinctions. The proposed amendments will bring some
measure of parity to the citizens of the Five Tribes, and allow our
citizens the opportunity to pass on their restricted Indian land to
their children and grandchildren in restricted status. It is hard to
overstate what this will mean to our citizens, who treasure their
restricted allotments and the link they represent to both their family
and their Nation.
I would like the Committee to take note of what these amendments
will not do. These amendments will not create new restricted Indian
land. It will only allow the current restricted fee land to remain in
restriction regardless of the blood quantum of the Indian. The bill is
narrowly tailored only to reform the most problematic and archaic legal
obstacles to the preservation of restricted land, and does not in any
way impact the ability of state courts, acting as federal
instrumentalities, to approve conveyance of surface or mineral
interests, to approve oil and gas leases, or to administer an estate
that contains restricted property.
Included at the end of this testimony are two maps. The first map
shows the number of restricted acres within the Five Tribes in 1916. At
that time, the Five Tribes had more than 15 million acres of restricted
land. The second shows that same area in 2015, when only a tiny
fraction of that original acreage remained--just over 380 thousand
acres. It is this fraction of remaining restricted fee land that we are
seeking to protect with these amendments. This tiny fraction continues
to diminish every year that this issue burdens the citizens of the Five
Tribes.
The technical amendments to the law are straightforward, and their
impacts are limited to the Five Tribes and their citizens. Section 2
provides new language that clarifies that lineal descendants by blood
of an original enrollee whose name appears on the Final Indian Rolls of
the Five Civilized Tribes may maintain their land in restricted fee,
regardless of the degree of blood of the land owner. This would include
the estates of Indians who died prior to the enactment of the
amendments, unless the estate had been subject to a final order
determining the decedent's heirs or had been conveyed previously by
deed or other approved method. The amendments also clarify that an
owner of restricted fee property can have the restrictions lifted from
his or her property if that is the desire of the individual tribal
citizen. The rest of the language makes small, technical changes
necessary to eradicate the one-half blood quantum requirement from the
various places it appears.
In conclusion, while these amendments are limited and
straightforward, the impact they will have on the Five Tribes and our
citizens is enormous. For decades, the citizens of the Five Tribes have
lived under a special set of laws that apply to only their lands. Even
as the federal government has tried to enlarge and consolidate the land
holdings of other tribes, grandparents in the Five Tribes have had to
struggle with the knowledge that they are the last generation that will
have the privilege of holding their family allotment as restricted
Indian land.
The purpose of the Stigler Act was to move Indian land from tribal
ownership to non- Indian ownership, and the law has been devastatingly
successful in accomplishing that goal. While H.R. 2606 will not reverse
70 years of land loss, it would certainly help prevent even more of our
tribal land from falling out of restricted status, and provide much-
needed parity to the owners of restricted allotments within the Five
Tribes.
I urge the Committee to favorably recommend this important
legislation. Thank you for this opportunity to testify.
The Chairman. Thank you.
Vice Chairman Yankton.
STATEMENT OF HON. DOUGLAS YANKTON, SR., VICE-CHAIRMAN, SPIRIT
LAKE TRIBE
Mr. Yankton. Good afternoon, Chairman Hoeven and Committee
members.
My name is Doug Yankton, I am an elected Vice-Chairman of
the Spirit Lake Tribe, previously known as the Devils Lake
Sioux Tribe. The Spirit Lake Tribe is a tribe that is in
northeastern North Dakota and our reservation consists of
approximately 245,000 acres of trust and fee land.
As a representative of the Spirit Lake Tribe and our
community, the most important responsibilities we have is to
ensure the laws impacting our community foster community safety
while protecting and preserving our inherent sovereign and
jurisdictional authority. The Spirit Lake Tribe has gone on
record to formally request the repeal of 60 Stat. 229, an Act
that previously conferred criminal jurisdiction over on-
reservation misdemeanor crimes to the State of North Dakota.
I am here today to request your support in passing S. 2788,
a bill to repeal the Act previously conferring jurisdiction on
the State of North Dakota over offenses committed by or against
Indians on the Devils Lake Indian Reservation. The Spirit Lake
Tribe has timely submitted formal written testimony on this
matter.
I would like to take this opportunity to briefly summarize
the written testimony submitted to the Senate Committee on
Indian Affairs, provide examples relevant to our concerns and
highlight the impact that repeal will have.
The Spirit Lake Tribe went on record in April of 1944
requesting assistance to address criminal activity on what was
then referred to as the Devils Lake Sioux Indian Reservation.
At that time, there was no real law enforcement present on the
reservation and no established tribal court.
In response to the request for assistance, the United
States Congress passed 60 Stat. 229, an Act which authorized
the State of North Dakota to exercise jurisdiction on the
Devils Lake Indian Reservation. Despite enactment of 60 Stat.
229, the State of North Dakota has provided minimal law
enforcement or prosecution services for on-reservation crimes.
In more recent years, the State has been virtually nonexistent.
The Spirit Lake Tribe passed Resolution A05-10-033 on December
1st, 2009, requesting repeal of the statute.
The Spirit Lake Tribe has spent more than 70 years
developing our tribal judicial system infrastructure, and we
now have the BIA law enforcement services, some tribal
enforcement officers, a victim assistance program, Fish and
Wildlife officers, tribal court, tribal prosecutors, juvenile
presenting officers and public defenders. Additionally, we have
incorporated diversionary programs and services into our
justice systems to better meet the needs of our court-involved
individuals and to address community safety.
The State of North Dakota has, for the most part, respected
tribal criminal jurisdictional authority. There have, however,
been a few instances where the State relied on the statute to
pursue criminal charges against enrolled members for on-
reservation activity, in conflict with existing tribal
jurisdiction.The most troubling exercise of this authority came
about during a period of jurisdictional conflict between the
State and our tribal fish and wildlife departments regarding
on-reservation authority. While the two departments worked
through the regulatory conflicts, a fish and wildlife and other
officers were charged with a crime by the State for
impersonating a State Game and Fish officer.
After meeting with State officials, the charges were
ultimately dropped by the State. However, this is one example
of the authority granted by the State of North Dakota under the
statute that has been selectively used in a manner that
interferes with our sovereignty. Such instances have been rare
as the Spirit Lake tribe has worked to foster a good working
relationship with the State, but it demonstrates how the Act at
times can interfere with the government-to-government
relationship.
In written testimony submitted today, we have outlined the
impact that the repeal would have. Namely, repeal of the Act
would not disrupt or otherwise alter any existing Federal and
tribal jurisdictional authority on the Spirit Lake Reservation.
Repeal of the Act would renew extraordinary jurisdictional
authority previously granted to the State of North Dakota which
has rarely and inconsistently been exercised by the State in
more than 70 years since its enactment. Repeal of the Act would
align the State jurisdiction on the Spirit Lake Reservation
with the authority being exercised by the State in all other
reservations.
I am pretty much out of time here, but I would like to
thank the Committee for the opportunity to provide this oral
testimony. As a tribal leader, I urge you to please pass S.
2788. Thank you for your time.
[The prepared statement of Mr. Yankton follows:]
Prepared Statement of Hon. Douglas Yankton, Sr., Vice-Chairman, Spirit
Lake Tribe
My name is Douglas Yankton, elected Vice-Chairman of the Spirit
Lake Tribe, previously known as the Devils Lake Sioux Tribe. The Spirit
Lake Tribe is located in northeastern North Dakota and our reservation
consists of approximately 245,000 acres of trust and fee land. As a
representative of the Spirit Lake Tribe one the most important
responsibilities we have is to ensure the laws impacting our community
foster community safety while protecting and preserving our inherent
sovereign and jurisdictional authority. The Spirit Lake Tribe has gone
on record to formally request the repeal of 60 Stat. 229, an Act that
previously conferred criminal jurisdiction over on reservation
misdemeanor crimes to the State of North Dakota. I am here today to
request your support in passing ``S. 2788, a bill to repeal an Act
previously conferring jurisdiction on the State of North Dakota over
offenses committed by or against Indian on the Devils Lake Indian
Reservation.''
As a background on this matter, in April of 1944, following a
referendum vote, the Devils Lake Sioux Tribal Council passed Resolution
No. III. The referendum occurred prior to the formal ratification of
the Constitution and Bylaws of the Devils Lake Sioux Tribe. Resolution
No. III sought to continue state jurisdiction over misdemeanor crimes
occurring on the Reservation. At the time there were community safety
concerns and a significant lack of tribal justice system resources,
including lack of law enforcement and no formally established tribal
court. After the Tribe passed Resolution No. III, it was relied upon by
the U.S. Congress to pass 60 Stat. 229 (1946). 60 Stat. 229 is a
federal law that applies only to the Spirit Lake Reservation and it
delegates authority to the State of North Dakota to prosecute crimes on
the Spirit Lake Reservation regardless of who commits the crime.
Since the 1944 referendum vote and 1946 federal law, the Spirit
Lake Tribe has established BIA agency law enforcement, tribal law
enforcement, a Fish and Wildlife Division and most importantly a Tribal
Court. The Spirit Lake Tribal Court has been operational for decades
and exercises both criminal and civil jurisdiction. The Tribal Court is
staffed with a Chief Judge, Associate Judge, and a Clerk of Court
within each of its three divisions. The Spirit Lake Tribe also funded a
Tribal Prosecutor, a Juvenile Presenting Officer, and a Public
Defender. The Tribe has further enhanced the tribal justice system
through the establishment of a Traditional Diversionary Court and the
establishment of a Law and Order Committee. The tribal justice system
is served by Bureau of Indian Affairs law enforcement and also includes
direct services for victims through the Spirit Lake Tribe Victim
Assistance Program.
With the great strides that the Spirit Lake Tribe has made in the
past seventy plus years, there is no need for the State of North Dakota
to prosecute crimes occurring on the reservation beyond what is
permitted by federal laws generally applicable to Indian Country as a
whole. In recent decades the state of North Dakota has not provided a
consistent law enforcement or judicial presence relevant to on
reservation crimes. The state of North Dakota has instead, relied upon
this archaic law to selectively prosecute a very minimal number of
crimes and to further justify their involvement in reservation crimes
beyond what is typically exercised by other states or by the state of
North Dakota on other reservations. Due to the significant changes to
our tribal justice system infrastructure and the lack of involvement by
the state of North Dakota relevant to on reservation crimes, the Tribal
Council passed Resolution A05-10-033 on December 1, 2009 requesting the
U.S. Congress to repeal 60 Stat. 229.
If the Congress repeals 60 Stat. 229 the state of North Dakota
would no longer have concurrent misdemeanor jurisdiction on the Spirit
Lake Reservation but would retain criminal jurisdictional authority
otherwise permitted by federal law that is consistent with
jurisdictional authorities reflected across much of Indian Country. The
repeal of 60 Stat. 229 would not have a negative impact on the state of
North Dakota. In fact, the state of North Dakota would continue to have
jurisdiction over crimes occurring on the reservation in accordance
with existing federal law. Furthermore, the repeal of 60 Stat. 229
would not create an jurisdictional gaps or otherwise interfere with the
exercise of tribal, federal or state jurisdictional authority as it
stands under existing law.
To be clear, S. 2788 only repeals 60 Stat. 229, which is specific
to the Spirit Lake Tribe, formerly known as the Devils Lake Sioux
Tribe. A repeal of the Act would in no way impact or otherwise limit
the applicability of the Major Crimes Act 18 U.S.C. 1153,
Assimilative Crimes Act 18. U.S.C. 13 nor the General Crimes Act 18
U.S.C. 1152, all of which serve to establish federal criminal
jurisdiction within Indian Country, including the Spirit Lake
Reservation. A repeal of the Act in question would not alter any
current common law impacting criminal jurisdiction in Indian Country.
Existing precedent pertaining to jurisdictional authority, established
by cases such as Oliphant v. Suquamish, 435 U.S. 191 (1978)(finding
that tribal courts generally lack criminal jurisdiction to criminally
prosecute non Indians in tribal courts) or United States v. Lara, 541
U.S. 193 (1994)(finding that tribes have the inherent authority to
prosecute member and non-member Indians pursuant to the Indian Civil
Rights Act as amended; also finding that the exercise of said authority
is concurrent to the exercise of federal criminal jurisdiction), would
not be altered in any manner. The Spirit Lake Tribe and justice system
officials within the Spirit Lake Tribe would continue to exercise
inherent criminal jurisdiction in a manner that is consistent with
existing tribal law and the Indian Civil Rights Act, as we have been
doing for decades. See 25 U.S.C. 1301-1304.
In conclusion, the Spirit Lake Tribe requests that you pass S. 2788
to formally repeal 60 Stat. 229 thereby supporting tribal efforts to
move forward with criminal justice system enhancements while preventing
unnecessary interference with tribal sovereignty by the state of North
Dakota. S. 2788 is an important step to reinforcing existing current
federal policy aimed at fostering tribal self-determination. On behalf
of the Spirit Lake Tribe, I would like to thank you for the opportunity
to provide this testimony and for your consideration the request for a
formal repeal of 60 Stat. 229.
The Chairman. Thank you, Vice Chairman.
Chairman Enos.
STATEMENT OF HON. BARNEY ENOS, JR., COUNCILMAN, GILA RIVER
INDIAN COMMUNITY
Mr. Enos. Good afternoon Chairman Hoeven, Vice Chairman
Udall, and members of the Committee.
I am Barney Enos, Jr., Councilman from District 4 of the
Gila River Indian Community. Thank you for the opportunity to
testify today on behalf of the Community in support of H.R.
4032, the Community's trust accounting legislation.
H.R. 4032 is necessary to enable the Community to obtain
the full benefits of the settlement the Community reached with
the United States to resolve claims for mismanagement of the
Community's trust resources. The Community filed its trust
accounting case in 2006. In particular, the claims that the
Community was most eager to resolve, and which this legislation
addresses, claims related to undocumented Federal rights-of-way
and claims related to the United States' failure to protect our
reservation territorial boundaries.
As part of its trust obligations, the United States has a
duty to ensure that tribal trust property is protected,
preserved and properly managed. Among other duties, the United
States must maintain adequate records with respect to the trust
property.
In our lawsuit, the Community alleged that the United
States failed in these duties to document many of the BIA
roads, electrical transmission lines and irrigation
infrastructure that crossed the reservation. In fact,
approximately 3,600 acres of undocumented rights-of-way affect
allotted and tribal trust land on the Community's reservation.
Rent either has not been collected or cannot be accounted for
by the United States.
Rather than litigate, the Community entered into settlement
negotiations with the United States. The settlement discussions
resulted in a global settlement that included a $12.5 million
payment from the United States for damages and this settlement
legislation.
Although restitution was important, what is most important
to the Community is fixing the problem of undocumented Federal
rights-of-way on the reservation. The lack of documentation for
these rights-of-way is an obstacle the Community deals with on
a daily basis.For example, the Community has a housing
shortage, and efforts to solve this problem have been slowed by
the lack of documentation for existing BIA roads and electrical
transmission lines. We also experience difficulty
rehabilitating Federal canals, even though our canal
rehabilitation project received funding from the Arizona Water
Settlements Act of 2004. Due to the lack of documentation for
many of these canals, the BIA has taken the position that
additional payments need to be made to gain access to these
canals.
However, the Bureau of Reclamation, which oversees the
canal rehabilitation project, has taken the position that our
water rights settlement funds cannot be used to acquire rights-
of-way for existing infrastructure. These contrary Federal
positions have caused delays and have frustrated the
implementation of the Arizona Water Settlements Act.
H.R. 4032 solves these problems by approving a process to
establish and confirm all of the Federal rights-of-way on the
reservation through surveys conducted by the BIA that, once
complete, will remove longstanding barriers to housing
development and implementation of the Community's water
settlement.
H.R. 4032 also settles a dispute involving the northwest
boundary of the reservation along the Salt River by fixing it
in order to avoid any dispute with landowners to our north. Due
to a number of surveying errors in the late 1800s and a lack of
diligence to correct those errors in the early 1900s, northern
lands of the Community's reservation were settled by non-
Indians. As a result, the Community has a valid title dispute
between the Community and other parties, including the City of
Phoenix.
As part of the global settlement, the Community agreed to a
fixed boundary, rather than the midpoint of the Gila River, in
order to avoid any future title dispute. In exchange for losing
the lands at issue, the Community identified BLM disposal lands
that were contiguous to the reservation and that included a
number of highly significant cultural resources and cultural
sites throughout the land. The Community has been working with
the BLM to navigate the disposal lands process to purchase
lands using settlement funds and transfer the culturally
sensitive lands to the Community.
I would emphasize that because of the cultural significance
of these lands, the Community has no plans to develop these
lands and has agreed to a ban on any gaming eligibility as a
condition to placing these lands into trust.
In May, the BLM issued the Notice of Realty Action. Once
purchased and transferred, H.R. 4032 authorizes placing these
lands into trust on behalf of the Community. Only Congress can
change the boundary and place these lands into trust. As such,
H.R. 4032 is a critical part of the Community's global
settlement with the United States.
H.R. 4032 is a non-controversial, bipartisan piece of
legislation that is absolutely critical to achieve the
settlement terms that the Community agreed to in exchange for
settling its Federal trust accounting case against the United
States.
Thank you for allowing me to testify. I am happy to answer
any questions you may have.
[The prepared statement of Mr. Enos follows:]
Prepared Statement of Hon. Barney Enos, Jr., Councilman, Gila River
Indian Community
Good afternoon Chairman Hoeven, Vice Chairman Udall , and members
of the Committee. Thank you for the opportunity to provide testimony on
behalf of the Gila River Indian Community (``Community'') regarding
H.R. 4032--the Gila River Indian Community Federal Rights-of-Way,
Easements and Boundary Clarification Act.
H.R. 4032 is critical legislation that is necessary to enable the
Community to obtain the full benefits of the settlement the Community
reached with the United States resolving federal litigation that
originated in 2006. Importantly, this legislation will provide a
process to document and legitimize existing Federal rights-of-way on
the Community's lands that, once complete, will remove longstanding
barriers to housing development and implementation of the Community's
water settlement. In addition, this legislation settles a dispute
involving the northwest boundary of the Reservation by resolving any
potential disputes with land owners to our north, in exchange for
placing Federal disposal lands that are culturally important to the
Community into trust after the Community purchases these lands from the
United States. H.R. 4032 is the product of a great deal of effort, and
compromise, by the Community and the United States to successfully
settle litigation and provide benefits to the Community that only
legislation can accomplish.
I. Background
A. The Community's Trust Accounting Case
On December 29, 2006, the Community brought a lawsuit against the
United States in the United States District Court for the District of
Columbia for an accounting of all of its trust assets and trust funds.
Gila River Indian Community v. Kempthorne, et al., Case No. 1:06-CV-
02249-TFH (``Gila River Trust Case''). The Community's suit against the
United States sought, among other things, a reconciliation of the
Community's non-monetary trust assets for the alleged mismanagement of
these resources by the United States. The Community's suit included
breach of trust claims against the United States for failing to
document Federal rights-of-way across the Reservation, and the United
States' failure to accurately survey the Reservation's Northwestern
boundary resulting in illegally patenting of lands to non-Indians.
1. Failure to Document Rights-of-Way on the Community's Reservation &
Trespass
By various Acts of Congress, commencing with statutes adopted more
than a century ago, Congress authorized the Secretary of the Interior
to collect income from tribal trust property and to deposit such trust
income in the United States Treasury and other depository institutions
for the benefit of the tribes. \1\ By subsequent statutes, Congress
directed that interest be paid on tribal trust funds, and required that
such trust funds be invested. \2\ Pursuant to this statutory authority,
the United States assumed control and management over trust property of
the Community. Interior has approved leases, easements and grants of
interest in trust lands of the Community, and as the Community's
trustee, the United States has assumed responsibility for the
collection, deposit and investment of the income generated by trust
land of the Community.
---------------------------------------------------------------------------
\1\ See e.g., Act of March 3, 1883, ch. 141, 22 Stat. 582, 590.
\2\ See e.g., Act of February 12, 1929, ch. 178, 45 Stat. 1164
(codified as amended at 25 U.S.C. 161b (1930)); Act of June 24, 1938,
52 Stat. 1037 (codified as amended at 25 U.S.C. 162a (1994)).
---------------------------------------------------------------------------
As part of its trust obligations, the United States has a duty to
ensure that tribal trust property and trust funds are protected,
preserved and managed so as to produce a maximum return to the
Community consistent with the trust character of the property. Among
other duties, the United States must maintain adequate records with
respect to the trust property; maintain adequate systems and controls
to guard against error or dishonesty; provide regular and accurate
accountings to the Community; and refrain from self-dealing or
benefiting from the management of the Community's trust property.
In the Gila River Trust Case the Community alleged that the United
States failed in these duties to the Community. While the United States
controls all the books and records of accounts affecting trust funds
and trust property, the United States never rendered an audit or
accounting to the Community for its trust property or monies. The
Community further alleged that the United States failed to establish
any effective system or provision for regular or periodic accounting
for the trust property and funds. As a result, the United States kept
the Community, as the trust beneficiary, uninformed as to the trust
property it owns, what income the trust property produced, and what
disposition was made of the income. In the Gila River Trust Case the
Community alleged that the United States' mismanagement of the
Community's trust property and funds resulted in losses to the
Community as the trust beneficiary.
The United States has provided the Community with records
pertaining to various rights-of-way through the Reservation. Based on
the records received from the United States, it became apparent that
many of the roads across the Reservation do not have legally
established rights-of-way. Based on the best information available, as
provided by the United States, a total of 3,600 acres of undocumented
rights-of-way affect allotted and tribal trust land, which has been in
Federal use and possession since 1930. With respect to these 3,600
acres, no documentation of rights-of-way can be found; indeed, such
documentation may never have existed. Rent either has not been
collected or cannot be accounted for by the United States. In addition
to the United States' breach of trust for failure to document rights-
of-way across the Reservation, failure to collect rent, and failure to
account for the Community's and allottees' trust assets, the Community
alleged that the United States was also liable for the Community's and
allottees' trespass claims for rights-of-way for federal projects that
were not legally documented and as a consequence resulted in loss of
rent due to the Community and allottees.
These claims arise as a matter of federal common law. \3\ To
determine the United States' potential liability with respect to these
claims, the Community again examined when each undocumented right-of-
way came into use and looked at the current market value of the land at
that time and how rent would have been calculated. In particular, the
Community looked at the date each undocumented right-of-way began in
order to determine which, if any, federal regulations applied to
calculate the appropriate compensation. For instance, beginning in
1929, the first set of comprehensive regulations governing right-of-
ways provided guidance on calculating appropriate charges which
included an appraisal of the value of the land and any damage which
would result therefrom. \4\ The 1968 regulations further provided that
consideration for any right-of-way granted or renewed ``shall be not
less than the appraised fair market value of the rights granted, plus
severance damages, if any, to the remaining estate.'' \5\ Current
statutes for right-of-ways require the company to make payment to the
Secretary for the benefit of the Tribe, of full compensation for such
right-of-way, including all damage to improvements and adjacent lands.
\6\ Together, these statutes and regulations make clear that had the
United States documented these rights-of-way as it was required to do,
it should have collected rent based on the fair market value of the
land for the benefit of the Community and affected allottees.
---------------------------------------------------------------------------
\3\ See Oneida Cty., N.Y. v. Oneida Indian Nation of New York
State, 470 U.S. 226 (1985) (tribal property rights are protected by
federal common law). In Oneida County, the Supreme Court read United
States v. Santa Fe Pacific R. Co, 314 U.S. 339 (1941), as holding that
``Indians have a common-law right of action for an accounting of all
rents, issues and profits against trespassers on their land.'' Oneida
County, 470 U.S. at 235-36; see also United States v. Milner, 583 F.3d
1174, 1182 (9th Cir. 2009) (citing United States v. Pend Oreille Pub.
Util. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir.1994)) (Federal
common law governs an action for trespass on Indian lands.).
\4\ See DEP'T OF THE INTERIOR, REGULATIONS CONCERNING RIGHTS OF WAY
OVER INDIAN LANDS, at 78 (1929) (available at https://www.doi.gov/
sites/doi.opengov.ibmcloud.com/files/T-22078.pdf).
\5\ 33 Fed. Reg. 19803, 19807 (Dec. 27, 1968) (codified at 25
C.F.R. 161.12 (1968)).
\6\ See 25 U.S.C. 314, 319.
---------------------------------------------------------------------------
2. Failure to Accurately Survey the Reservation's Northwesterly
Boundary
In 1867, William Pierce conducted the first significant survey of
the area surrounding the confluence of the Salt and Gila Rivers. Pierce
was retained to survey a baseline 36 miles to the east of the initial
point--which was located at the intersection of the Salt and Gila
Rivers--and a meridian 96 miles north of the initial point. The two
lines surveyed by Pierce constituted the Gila and Salt River base and
meridian and were used in later surveys of the area.
In 1868, Wilfred Ingalls surveyed township lines in the Phoenix
area. This work resulted in the first approved Government Land Office
(GLO) plat maps. Ingalls also conducted the first GLO survey of the
Salt River channel (``Ingalls Survey''). As a result of the Pierce and
Ingalls surveys, a map of Township 1 North, Range 1 East--within which
the land at issue in this letter is located--was produced.
The Community's Reservation was first created by statute in 1859
and was subsequently expanded by a series of Executive Orders.
President Rutherford B. Hayes signed one of these Executive Orders on
June 14, 1879, which established the northwesterly corner and expanded
the northern boundary of the Community's Reservation to the Salt River
as follows:
Beginning at the northwest corner of the old Gila Reservation;
thence by a direct line running northwesterly until it strikes
Salt River 4 miles east from the intersection of said river
with the Gila River; thence down and along the middle of said
Salt River to the mouth of the Gila River; thence up and along
the middle of said Gila River to its intersection with the
northwesterly boundary line of the old Gila Reservation; thence
northwesterly along said last described boundary line to the
place of beginning. (Emphasis added).
In 1895, the United States employed Lewis Wolfley to survey the
northern boundary of the Reservation. Wolfley was erroneously
instructed to establish the boundary at the ``left bank'' of the Salt
River--the Reservation side of the river. This error would be the first
in a series of errors committed by the government with regard to
surveying and marking the northern boundary of the Reservation. In
1898, following its completion, the Wolfley survey was rejected by the
federal government because the northern boundary of the Reservation had
been marked at the left bank of the Salt River, rather than the
``middle of the. . .Salt River'' as called for in President Hayes'
Executive Order of 1879. As a result, the GLO Commissioner ordered the
Surveyor General to have the northern boundary resurveyed.
Between 1910 and 1912, Guy P. Harrington was assigned to survey the
entire Reservation for the purpose of preparing the land to be divided
into individual allotments. Harrington surveyed 23 full or fractional
townships within the Community. On July 29, 1919, the GLO sent a letter
(``The 1919 Letter'') to the Surveyor General for Arizona approving
certain portions of Harrington's survey, providing detailed
instructions for correcting certain problems with the survey, and
containing directives for new work to be performed on land since added
to the Reservation.
The GLO, in order to prevent further encroachment on the
Community's land, instructed the Land Office in Phoenix to cease the
disposal of land immediately adjacent to the Reservation. In The 1919
Letter, the GLO explained that the encroachment upon the Community's
land resulted from the failure to timely survey the Reservation's
boundaries in the wake of President Hayes' 1879 Executive Order.
To remedy these prior mistakes, the GLO ordered the Surveyor
General to resurvey the area once more, with specific instructions to
set the Reservation's northern boundary at the middle of the old
channel of the Salt River as it existed on June 14, 1879. This project
was assigned to Harrington, one of the men responsible for the
partially approved and partially rejected (as erroneous) 1910-1912
surveys. Harrington was furnished with a copy of the Ingalls Survey and
instructed to interview old settlers in the area. Although Harrington
allegedly made a ``concerted'' effort to establish the position of the
river as it existed in 1879, he completed the survey in just two
months. The Commissioner accepted the new Harrington survey on November
3, 1920 (``Harrington Survey''). \7\
---------------------------------------------------------------------------
\7\ By 1919 when the Harrington Survey was conducted and over time
since then the middle of the Salt River has moved northward. Also, in
June 1914, C.R. Olberg oversaw a table-top survey of the northern
boundary of the Reservation. This survey accurately depicted the
location of the middle of the main channel of the Salt River but was
not used by Harrington.
---------------------------------------------------------------------------
However, in performing his survey Harrington ignored the directives
of the GLO contained within the 1919 Letter. As a result Harrington,
inter alia, inaccurately surveyed the mid-point of the Salt River and
failed to take into account the northerly accretion of the river. \8\
Thus, the Community believes that as a result of the Harrington Survey
errors and the further northward movement of the Salt River since that
time, the Community has lost land on the northern portion of its
Reservation due to accretion.
---------------------------------------------------------------------------
\8\ ``Accretion'' is the ``[t]he gradual accumulation of land by
natural forces. . . .'' Accretion, BLACK'S LAW DICTIONARY (7th Ed.
1999). The doctrine of accretion provides that the grantee of land
bounded by a body of water gains ownership of any land that is
uncovered by the gradual and imperceptible movement of the body of
water. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 325-326 (1973),
overruled on other grounds by Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 371 (1977).
---------------------------------------------------------------------------
As a result of the foregoing, the Community alleged the northern
boundary of the Reservation is actually located north of the boundary
inaccurately relied upon by the City of Phoenix and others. The
Community further contended that the United States, in accepting the
erroneous and fixed boundary, and issuing patents for land based on the
Harrington Survey, transferred the Community's Reservation lands to
various parties in violation of the law, including, but not limited to,
the Non-Intercourse Act, 25 U.S.C. 177.
In addition, since the time of the Harrington Survey the middle of
the River has moved north and the United States, as trustee, failed to
adequately protect and enforce the Community's boundary. This resulted
in potential boundary disputes with the City of Phoenix \9\ and private
individuals who own land adjacent to the Salt River in Maricopa County,
which the Community asserted encroaches on land rightfully granted to
and owned by the Community.
---------------------------------------------------------------------------
\9\ For example, due to the United States' survey errors the City
of Phoenix constructed a wastewater treatment plant, which has been and
is currently discharging effluent and the materials contained within
such effluent onto land rightfully granted to and owned by the
Community. Moreover, the City of Phoenix is causing twice-treated
effluent to enter the Reservation through recharge of the aquifer
underlying the Community's northern boundary.
---------------------------------------------------------------------------
B. Gila River Trust Case Settlement Agreement
Rather than litigate the case in Federal Court, the Community
entered into settlement negotiations with the United States. The
settlement discussions resulted in a global settlement that includes
the Joint Stipulation of Settlement, BLM land transfer, BIA letter, and
settlement legislation (H.R. 4032) discussed below.
1. Joint Stipulation of Settlement
The Joint Stipulation of Settlement is a settlement agreement
between the Community and the United States that resolves and settles
the Community's claims in the Gila River Trust Case. Under the Joint
Stipulation of Settlement the Community waived its claims against the
United States through the date of entry of the Joint Stipulation for
its failure to provide a historical accounting, the United States'
mismanagement of the Community's non-monetary trust assets or
resources, the United States' mismanagement of the Community's trust
funds and the United States' failure to perform trust duties related to
the management of trust funds and non-monetary trust assets or
resources. In particular, the Community waived its claims against the
United States for its failure to document Federal rights-of-way (roads,
electric, and irrigation) across the Reservation. The Community also
waived its claims against the United States related to the boundary
dispute for the Northern boundary of the Reservation.
Under the Settlement, the Community explicitly retained all future
claims of any kind, as well as its claims related to water rights,
federal law hunting, fishing, trapping and gathering rights, federal
laws of general application for the protection of the environment and
the Community's claims related to the United States' failure to perform
investment duties for the Lower Colorado River Basin Development Fund.
In exchange for waiving these claims and dismissing the Gila River
Trust Case with prejudice, the United States paid the Community
$12,500,000.00 (Twelve Million and Five Hundred Thousand Dollars).
Further, pursuant to the Settlement the Community accepted as accurate
the balances of all of the Community's trust fund accounts based upon
the most recent Statements of Performance issued by the Office of the
Special Trustee. The United States will continue to provide periodic
Statements of Performance as it has been doing since 1995.
The Community and the United States approved the Joint Stipulation
of Settlement and filed the fully executed Joint Stipulation of
Settlement with the D.C. District Court on June 22, 2016. The Court
granted the Joint Stipulation of Settlement that same day by minute
order. On March 20, 2017 the Community and the United States filed a
Joint Stipulation to Dismiss the Gila River Trust Case with prejudice.
2. BLM Land Transfer
As part of the overarching global settlement, the Community pursued
the transfer of approximately 3,400 acres of BLM land to the Community
as replacement for lands lost due to the Community agreeing to a fixed
boundary along the Salt River. As part of its authority under the
Federal Land Policy and Management Act (FLPMA) BLM completed the Lower
Sonoran Resource Management Plan Record of Decision (``Lower Sonoran
RMP'') for management of over 930,200 acres of Federal lands in
Maricopa, Gila, Pima, Pinal and Yuma Counties in central and southern
Arizona. \10\ The Lower Sonoran RMP identified lands for disposal and
provided legal descriptions for such lands available for disposal. \11\
---------------------------------------------------------------------------
\10\ DEP'T OF THE INTERIOR, LOWER SONORAN RECORD OF DECISION &
APPROVED RESOURCE MANAGEMENT PLAN, at V-VI (2012) (Letter from Emily
Garber, Field Manager) (available at https://eplanning.blm.gov/epl-
front-office/projects/lup/11856/40127/42156/01-LSDA_ROD-
ARMP_FINAL_2012-09-19_web-with-Links_sans-map-pages.pdf).
\11\ See id., at Appendix C.
---------------------------------------------------------------------------
During the public comment period of the Lower Sonoran RMP process,
the Community requested that a number of parcels of BLM land be
considered for disposal in the Lower Sonoran RMP. \12\ BLM made a
determination that certain parcels met the requirements in 43 U.S.C.
1713 and included such parcels in the final Lower Sonoran RMP, some of
which included the lands the Community had requested and identified for
disposal. \13\ BLM's identification of such lands for disposal as part
of the Lower Sonoran RMP explicitly allowed for the sale of such
parcels. \14\
---------------------------------------------------------------------------
\12\ See Letter from Gila Governor Williams Rhodes to Emily Garber,
Field Manager, BLM (July 30, 2009) and Letter from Gila Governor
William Rhodes to Emily Garber, Field Manager, BLM (April 27, 2010).
\13\ See Lower Sonoran RMP, supra note 12 at Appendix C.
\14\ See also 43 C.F.R. 2710.0-6.
---------------------------------------------------------------------------
During the settlement negotiations, and as an essential component
of the overall settlement, the Community met with BLM officials and
indicated the Community's continued interest to purchase the specific
parcels that were contiguous to the Reservation and that included a
number of highly significant cultural resources and cultural sites
throughout the tracts. \15\
---------------------------------------------------------------------------
\15\ See Gila River Indian Reservation and Lands to be Taken into
Trust Status Map included as an attachment to this testimony. The Map
identifies the BLM disposal land that is of cultural significance to
the Community. There are approximately 3,185 acres located in the
Estrellas that are contiguous to the Northwest portion of the
Reservation and approximately 200 acres adjacent to the southern
boundary of the Reservation. See also Letters from Maricopa County and
City of Phoenix included as attachments to this testimony.
---------------------------------------------------------------------------
In June of 2015 the BLM agreed to work with the Community to
transfer the identified BLM disposal land to the Community. Since that
time the Community agreed to provide funds in a Contributed Funds
Agreement in order to facilitate the BLM perform the necessary work to
effectuate the land transfer. In coordination with the Office of
General Office, Tribal Historic Preservation Office, Cultural Resources
and Community Department of Environmental Quality, the Community worked
with BLM to finalize the Notice of Realty Action, which was published
in the Federal Register on May 29, 2018. Public scoping was completed
over the summer and work is being done to complete the necessary
cultural and environmental review needed to finalize the transfer. Upon
completion of the environmental and cultural review and issuance of a
Finding of No Significant Impact, the Community will purchase the BLM
land using funds from the settlement. H.R. 4032 authorizes the land,
once transferred after the Community purchases the BLM lands, to be
placed into trust on behalf of the Community.
3. BIA Letter
As part of the settlement negotiations, the Community and the
United States discussed the need for federal legislation and the
Administration's support of such legislation, in order to provide non-
monetary relief regarding the undocumented rights-of-way on the
Reservation, the northwesterly boundary of the Community's Reservation
and the BLM land transfer. The Bureau of Indian Affairs issued a letter
agreeing to work with the Community in a good-faith manner to prepare,
introduce, and support the Community's legislative proposal in the
114th, 115th and 116th Congresses. \16\
---------------------------------------------------------------------------
\16\ See BIA Letter included as an attachment to this testimony.
---------------------------------------------------------------------------
4. Settlement Legislation
As discussed more fully below, federal legislation was needed to
effectuate the benefits under the Settlement. Specifically, the
Community needed to have a mechanism to legally establish the Federal
rights-of-way on the Reservation. Since the rights-of-ways all traverse
some allottee lands, allottees would have to have consented to the
rights-of-ways, and the United States was unable to provide the consent
itself on behalf of allottees. Congress, through federal legislation,
however, can provide the legal basis to establish the Federal rights-
of-ways in an efficient manner. Thus, H.R. 4032 is an innovative
solution to solve the thorny problem of undocumented Federal rights-of-
way that plagues much of Indian Country. The legislation also
importantly establishes the Northwest Reservation boundary and
authorizes and directs the placement of the BLM lands into trust status
for the Community, all of which requires Congressional action. \17\
---------------------------------------------------------------------------
\17\ Section 210 of the Gila River Indian Community Water Rights
Settlement Act of 2004 explicitly provides that ``[t]he Community may
seek to have legal title to additional land in the State located
outside the exterior boundaries of the Reservation taken into trust by
the United States for the benefit of the Community pursuant only to an
Act of Congress enacted after the date of enactment of this Act
specifically authorizing the transfer for the benefit of the
Community.'' Gila River Indian Community Water Rights Settlement Act,
Pub. L. 108-451, 118 Stat.3523 (2004) (emphasis added).
---------------------------------------------------------------------------
II. H.R. 4032: Settlement Legislation
In addition to the Settlement Agreement that was filed in Federal
court, federal legislation is also necessary for the Community to
effectuate the settlement terms agreed to by the Community and the
United States. Importantly, H.R. 4032 will:
(1) establish, ratify, document, and confirm the Federal
electrical, irrigation, and road rights-of-way and easements
that exist within the exterior boundaries of the Reservation as
of the date of the enactment of the Act;
(2) establish a fixed location of the northern boundary of the
Reservation and to provide for the Secretary of the Interior to
ensure that the northern boundary is resurveyed and marked in
conformance with the public system of surveys;
(3) authorize and direct the Secretary to place certain lands
into trust for the benefit of the Community;
(4) substitute the benefits provided under this Act to the
Community, its members and allottees for any claims that the
Community, its members and allottees may have had in connection
with alleged failures relating to the northern boundary of the
Reservation and the documentation and management of Federal
rights-of-way on the Reservation; and
(5) authorize the funds necessary for the United States to
meet the obligations under this Act. \18\
\18\ See H.R. 4032, Section 3.
---------------------------------------------------------------------------
Section 5. Land Into Trust For the Benefit of the Community
H.R. 4032 provides the mechanism to place the Lower Sonoran lands,
approximately 3,400 acres of BLM disposal land, into trust on behalf of
the Community once the lands are transferred through the FLPMA disposal
process. As discussed above, the Community is working with the BLM to
finalize this process and expects that the process will be completed
later this year. The Community will use the Settlement funds to
purchase the disposal lands from the BLM for fair market value. Once
the transfer is finalized, H.R. 4032 authorizes and directs the
Secretary to place such lands into trust status for the benefit of the
Community.
Given the cultural significance and remoteness of these lands, the
Community does not plan to develop these lands. Rather, the Community
plans to protect these lands in order to preserve the documented
cultural properties such as plant, animal and raw material resource
gathering areas, sites of ideological and religious significance (i.e.
rock art, rock shelters, and shrine sites) and trail systems and
transportation routes that entail ideological and religious
significance with historic and prehistoric Community settlements. \19\
---------------------------------------------------------------------------
\19\ See Gila River Indian Community Council Resolution GR-006-17
Designating Komatke Do'ag/Vii Alh also known as the Sierra Estrella
Mountain Range, as a sacred place and traditional cultural property of
the Gila River Indian Community (January 18, 2017) included as an
attachment to this testimony.
---------------------------------------------------------------------------
While the Community has no plans to develop the lands, H.R. 4032
provides an explicit prohibition of gaming on the Lower Sonoran BLM
disposal lands that shall be placed in trust in order to clarify that
no gaming will take place on these lands. In particular, Section 5(d)
provides that ``Class II and class III gaming under the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.) shall not be allowed at any
time on the land taken into trust under subsection (a).''
Section 6. Establishment of Fixed Northern Boundary
Section 6 of H.R. 4032 establishes the Northwestern boundary of the
Reservation along the Salt River to settle the boundary dispute by the
Community relinquishing land that is currently part of the Reservation
in order to avoid a title dispute with the City of Phoenix and private
land owners. \20\ The Community's Northwestern boundary of the
Reservation will be modified to be a fixed and permanent boundary as
established by the Harrington Survey, as shown on the plat and
described in the field notes. Subject to available appropriations, the
modified Reservation boundary will be surveyed and clearly marked. The
Secretary of the Department of the Interior will be required to publish
the modified survey in the Federal Register. This shall constitute a
final resolution of the Community's Northwest Reservation boundary
dispute.
---------------------------------------------------------------------------
\20\ See Gila River Indian Reservation and Lands to be Taken into
Trust Status Map included as an attachment to this testimony. The Map
shows where the Northwestern boundary at issue is located.
---------------------------------------------------------------------------
Section 7. Satisfaction and Substitution of Claims
Section 7 confirms that the benefits provided to the Community, its
members, and allottees are equivalent to or exceed the claims the
Community, its members, and allottees may possess as of the date of
enactment of the Act.
Section 8. Federal Rights-of-Way
Section 8 of H.R. 4032 establishes, ratifies and confirms all of
the rights-of-way on the Reservation. The specific location and
dimensions of the rights-of-way will be determined through surveys
conducted by the Bureau of Indian Affairs, or its subcontractor. The
legislation provides specific language to allow for cancellation of
rights-of-way pursuant to 25 CFR 169.404-409 or by written request by
the Community. However, once the rights-of-way are established,
ratified and confirmed, all other rights-of-ways or easements on the
Reservation shall be considered valid only to the extent that they have
been established in accordance with applicable Federal statute and
regulation specifically governing rights-of-ways or easements on Indian
lands. During the House consideration of H.R. 4032, between the
legislative hearing and the Full Committee mark-up, the Community
worked with Interior and the Committee to incorporate some technical
revisions. These technical revisions were inserted to address
Interior's request to conform to current terminology for rights-of-way
regulations and to properly conform to Interior's documentation and
recording practices. Those technical revisions are reflected in the
legislation that the House passed and that is before the Committee
today.
Section 9. Survey
Section 9 of H.R. 4032 provides six (6) years after enactment of
the Act, for the Bureau of Indian Affairs to complete a survey of each
of the Federal rights-of-way established under the Act and to publish
those rights-of-way surveys to be published in the Federal Register.
The Bureau of Indian Affairs is authorized to complete the surveys
itself or contract with the Community or a third party to complete the
surveys.
III. Conclusion
H.R. 4032 is a non-controversial, bi-partisan piece of legislation
that is absolutely critical to achieve the settlement terms that the
Community agreed to in exchange for settling its federal trust
accounting case against the United States. The legislation represents a
compromise and savings to the United States' resources that would
otherwise have been required if the Community further litigated the
Gila River Trust Case. The Community worked closely with the United
States to address technical revisions to the legislation that were
incorporated and ultimately passed by the House. Moreover, the
legislation provides a groundbreaking solution to the problem of
undocumented Federal rights-of-way that is not unique to the Community
and which could serve as a template for other tribes that are
experiencing similar problems. Finally, H.R. 4032 provides certainty
and eliminates the possibility of further litigation regarding the
Northwestern boundary of the Reservation while restoring culturally
significant lands to the Reservation.
The Community thanks the Committee for holding a hearing on this
important piece of legislation and we look forward to passing this bill
during the lameduck session.
Attachments
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you to all the witnesses. We will now
turn to five-minute rounds of questioning.
I would like to start with Director LaCounte. Director
LaCounte, in regard to S. 2788, how would this bill affect the
work of BIA law enforcement on the reservation, including
intergovernmental or interagency coordination?
Mr. LaCounte. The effect would be no problem at all for us.
It would also allow the tribe the opportunity to take on some
of those responsibilities if they so chose to. We are not
pushing that or anything, but it would allow that to happen. It
would just really make things much clearer and right on the
Spirit Lake Reservation.
The Chairman. Vice Chairman Yankton, again in regard to
2788, what steps will the tribe's justice and public safety
systems be taking in order to be prepared for administering law
enforcement, and are you getting enough support for your law
enforcement efforts from the Federal Government, specifically
BIA?
Mr. Yankton. I don't know if you what to get into that
right now. That could be a long story.
The Chairman. You can give us the short version.
Mr. Yankton. I think if this was to repeal, we as a tribe
would look more to probably wanting to implement more tribal
police officers to work alongside with the BIA. But even there,
there was a little friction in the past, depending on who is
the chief of police, depends on the type of services and what
we could work through.
But I think ultimately the goal here is to keep that
identity as a sovereignty. I don't mean any disrespect to my
ancestors. The well-being of why they wanted the protection for
policing on our reservation back then was because we had
absolutely nothing. The BIA was not even in existence.
Back in the 1940s when they enacted this, they wanted the
protection of the State to police us. Seventy years later, I
think we are very well capable of working with the BIA and
providing that policing protection within our boundaries today.
The Chairman. Chief Floyd, you mentioned that lifting the
blood quantum requirement would make leasing and economic
development easier. Can you elaborate on that in terms of
economic development?
Mr. Floyd. Yes, Mr. Chairman.
Essentially, the process will be easier in that presently,
like in the example of the Muscogee Creek Nation, we have
several hundred cases waiting to be probated. Citizens are
either reluctant or fearful to have it probated because they
would be lost out of restricted status. We do not the clear
title of the lands showing all the heirs.
If the Stigler Act amendments are passed, then members of
the nation would be more willing to come forward to have their
land probated. We would have a better record of the ownership,
the heirs and the partitions of all the land. It would make the
job of oil and pipeline companies and others who want to do
business with the tribe easier because their work would be
easier. They would have a better, clearer title than we have at
present.
The Chairman. Councilman Enos, in regard to the Gila River
Indian Community, do you have plans as far as how you would
develop the lands or any portion of the lands once they are
reacquired?
Mr. Enos. Chairman, currently the plans for the acreages
that we would be acquiring are merely for that of protection
and preservation. The cultural significance, the matters that
are present there with respect to the [phrase in Native
tongue], those that have gone before us in the Community, are
of great importance. So are our efforts and our need to develop
and take those lands further. There is just nothing there right
now. Our efforts are to protect and preserve and just conserve.
The Chairman. At this point, I will turn to Senator
Heitkamp.
Senator Heitkamp. Thank you, Mr. Chairman. Thank you to the
Vice Chairman for allowing me to go first.
First off, I want to say to all of the tribal
representatives here, you have made incredibly compelling cases
for the legislation. I find some regret that you have to come
here, given the fact that you are all sovereign and that you
have the ability to run your own business. But I hope the
Chairman and Vice Chairman can move these bills quickly.
I want to applaud you, Mr. LaCounte. I don't know the last
time someone came over the BIA saying, yes, yes, yes. We are
very excited about that. It is rare indeed but I think this is
a level of cooperation on all these bills that we need if we
are going to move them forward. I want to thank you for that.
As you can see, Mr. LaCounte, from our earlier discussion,
one of the priorities that we have for Indian Country in the
next many years is going to be public safety. We are very
concerned about inadequate staffing, very concerned about
jurisdictional challenges, very concerned about the level of
crime, whether it is violent crime or misdemeanor crime
occurring in Indian Country, especially in North Dakota, but
really, across the Country.
Can you give me a sense, coming into the next budget year,
can you give me a sense of what you are requesting as Acting
Director of BIA to improve the quality of law enforcement in
Indian Country in those areas where you have primary
jurisdiction?
Mr. LaCounte. I am not prepared to give you a sense of what
that is. It is embargoed, I am sorry.
Senator Heitkamp. Well, I think it goes back to our
frustration here which is that we can't keep doing what we are
doing and getting a better result. It is just not going to
work. We need advocacy within the Department of the Interior,
within OMB. We need advocacy to actually correct these
problems.
I have had these conversations with former Attorney General
Jeff Sessions, I have had these conversations with Director
Wray, I have had these conversations with your predecessor. I
continue to experience a lot of frustration about the lack of a
plan and the lack of an appropriate assessment of how you can
work in a cooperative, sovereign-to-sovereign relationship with
people like Vice Chairman Yankton to provide that safety net,
that security. We know it is not there right now, whether it is
trying to access DEA, whether it is trying to make sure there
is enough FBI agents, or whether it is just making sure your
officers are trained and ready and available.
I think a good example of the challenges we have right now
is down at Standing Rock. I think there are maybe 12 officers,
sworn officers that belong there. Maybe we have seven. We
obviously have this unique challenge which I am sure you are
familiar with in terms of continuing staffing concerns. This is
not acceptable.
We are not going to solve these problems of murdered and
missing indigenous women, of rampant drug crime, of rampant
crime in Indian Country without a plan. I am just curious about
whether there is an intention on BIA's part to collaborate and
to come up with a plan for improved law enforcement moving
forward.
Mr. LaCounte. Certainly, we did plan to do that.
Senator Heitkamp. Do you agree that you are inadequately
staffed right now?
Mr. LaCounte. Yes.
Senator Heitkamp. For the job you have been given?
Mr. LaCounte. Yes.
Senator Heitkamp. Can you agree that when you are a leader
in an organization that is inadequately staffed, one of the
critical things is to ask for the right level of staffing, the
right level of commitment in terms of resources to do your job?
Mr. LaCounte. Yes.
Senator Heitkamp. Thank you. I don't mean to browbeat you.
I am not going to be around here that much longer, but this is
an enormous frustration for me. Because if we cannot protect
people, we are not doing our job. That is fundamentally,
exactly where we should be.
If think that BIA has a unique role in making sure you are
collaborating with all available resources, whether it is
tribal resources, whether it is State and local drug task force
resources, what that looks like and making sure we are covering
all the jurisdictions you have responsibility for. And
recognizing you are Acting, I know that is another frustration,
the musical chairs that go with not having that consistent
leadership, that leads to not only planning but also
implementation of a plan.
The consistent problem that I hear over and over again,
whether it is from the elders or whether it is from tribal
council, is that there is not adequate public safety personnel
on the reservations to do the job that needs to be done to
protect indigenous people.
I will not beat you up any more, but please know it is
critically important that BIA assume some leadership on this
issue.
The Chairman. Senator Lankford.
Senator Lankford. Mr. Chairman and Vice Chairman, thank you
very much.
Chief Floyd, again, it is good to see you here. Thanks for
coming and articulating the issues so well today on the Stigler
Act. This is an anomaly that sits out there nationwide of how
the Five Tribes in Oklahoma are treated differently than every
other tribe in the Country. It is an area that has to be
resolved. It is interesting this is the situation that has
already had a House vote that was unanimous.
The Administration and the Department of the Interior have
already stepped forward and said, we fully support this. Now it
is going through the Senate process as well, so it is building
good momentum.
But this is not the first time this has been discussed. How
many years has a Stigler Act-like bill come up before this
Congress? Do you know how many times it has come up?
Mr. Floyd. I do know that the latest, most recent was about
ten years ago. It did not pass at that time. Reading through
the history of this Act, it reads like a very complex novel
sometimes. It is woven with a lot of other things that have
occurred in Indian Country throughout the years. I think with
this approach and with the support of the House, we have made
progress with the simplicity of this amendment.
Senator Lankford. Because this is different than previous
versions?
Mr. Floyd. It is, yes, sir.
Senator Lankford. You articulated some of those differences
that are out there but do you want to articulate a couple of
them again? How is this different than previous versions of the
Stigler Act?
Mr. Floyd. I think one is that there have been folks who
have said it would be retroactive and they would have to go
back, it could be creating additional land. It will not do
that. It is not retroactive. It only goes forward from this
point.
It does allow for families to, as is our culture, to pass
things on and does allow, with the removal of the blood
quantum, for them to probate their lands and have that moved to
heirs. As I mentioned before, just having a clear title of
restricted lands makes it easier to do business with any entity
outside the nation.
Senator Lankford. Can I ask you to clarify, because this
will be an issue that will come up, the best that you
understand at this point, for families that have chosen not to
probate, they have that property but the person who had
ownership passed away some years ago. They still have it but
have not gone through the probate. How would that be affected?
If they did not choose to probate it, are they staying in
restricted, or it still has to go back to the original owner
when they passed away, if the blood quantum was lost at that
point? That deals with this issue of retroactive-non-
retroactive and where it stands in the process.
Mr. Floyd. First of all, the Stigler Act applies to
practically every family in the Five Civilized Tribes,
including my own so I will give a personal example. I had a
brother pass away. He has 160 acres of restricted land. His
daughter, who is sole heir, is less than half.
So at the present time, the royalty checks on minerals go
uncashed. They go into an account. The family has no access to
the money from surface lease. Until such time as it gets
resolved through probate, nothing really moves. It is as if
time stands still.
This will allow things to proceed in an orderly fashion so
that the resources go from the accounts to the individuals who
deserve a share.
Senator Lankford. It is your understanding, then, that as
far as it not being retroactive, in that situation, that that
land, whenever this passes, is lost on restricted status or
because it has not gone through probate, it would be exempted
out?
Mr. Floyd. As it stands today, without the amendments, the
land would be lost from restricted status. With the passage of
the amendments, it can be passed to the sole heir of the
family.
Senator Lankford. We will follow up when we get a chance to
talk about that more on it. I do want to ask you about the grim
dilemma that is in Oklahoma about fractionated land, because
you have a situation where you have multiple owners and it is
very difficult to be able to manage. We have some communities
where a property lays empty and becomes dilapidated, but there
are a hundred different owners out there. Trying to track down
everyone just to figure out how to do maintenance on that
facility becomes very, very difficult. It is also very, very
difficult in oil and gas leases or any other surface rights
that may come up.
This does not address that issue about fractionation. How
do you think that gets resolved, do you think, in the days
ahead? Because that is an issue with this. How do you think it
gets resolved?
Mr. Floyd. One of the problems, Senator, I see that we
face, as told to me by own realty department, is we have one
case that there are 127 heirs to the property. If a company
wanted to come and lease the minerals, we would have to
identify all 127 and get their permission. We find in cases, I
am not saying in this particular case, but we find cases where
individuals are reluctant to name all the heirs because those
who do come forward may get larger portions than those who do
not.
By having the amendments pass, we can then go in and
accurately record who the rightful owners are of the property
and their heirs. When companies come in to do business, their
job will be made much easier, because we would have a certified
title that we could give them of the individuals who rightfully
are due resources from either the mineral lease or the surface
lease.
Senator Lankford. Thank you. Thank you, Mr. Chairman.
The Chairman. Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
Mr. LaCounte. as you know, members of my staff visited the
Pine Hill BIE Schools at the end of August. They reported a
number of very troubling safety and facilities issues on the
campus. The library and kindergarten building are closed due to
black mold. The gym and other buildings have roof and ceiling
issues. There is no security fencing around the campus, even
though it is a residential campus located near other high
traffic community buildings like the post office.
Many of these issues were the subject of a 2016 DOI Office
of Inspector General report, but they are still unresolved.
Based on the weekly status reports I requested of BIA and BIE,
the Bureaus are working with the tribal school board to develop
a school site project plan to address these health and safety
problems.
Mr. LaCounte. is this school site project plan still on
track to be in place before the end of the month?
Mr. LaCounte. Could you repeat the last question?
Senator Udall. Yes. Is this school site project plan still
on track to be in place before the end of the month?
Mr. LaCounte. The plan is in place right now.
Senator Udall. Now, okay.
Mr. LaCounte. After our meeting with you, I stepped up and,
Senator, I didn't want to put my fate in others' hands. I would
also like you to know when I walked back to my office that day,
they handed me your second letter. That is when it arrived in
my office.
But the plan is in place. I am going to see it through. I
am committed to seeing that through.
Senator Udall. Thank you very much for doing that. We
really appreciate your commitment to that.
What assurances can you give me that completing and
implementing this plan will fully address the issues at Pine
Hill after so many years of inaction?
Mr. LaCounte. I will give you the same assurances I gave
you on the GAO high risk. I am going to see it through. I will
see this through as long as they allow me to serve in this
capacity.
Senator Udall. Terrific. If you are getting all that done,
I hope you are going to be serving there for a while. I
appreciate it.
It is reassuring to hear that the BIA and BIE seem to be
taking the facilities issues at Pine Hill more seriously now,
but I know that there are other BIE schools dealing with
unresolved health and safety issues. Some of these issues
likely just need follow-up through the maintenance staff, but
you and I know that there is a serious issue with getting BIE
contracting and project management done efficiently.
Are BIA and BIE going to work with other BIE schools to
develop a school site project plan similar to what you did on
Pine Hill?
Mr. LaCounte. I am quite certain I can commit to that as
well. I think this unfortunate incident outlined some
breakdowns in communication that needed addressed. I was
pleasantly surprised when I started making noise myself that
people fell in line and wanted to participate.
We generally do a weekly meeting with all the players.
There are a lot more players than one would imagine, but
working together, and everybody understands the importance of
this. I do believe that.
Senator Udall. Thank you very much for that.
What actions are you taking to improve the efficiency and
quality of work coming out of BIA's contracting officers and
project managers?
Mr. LaCounte. I cannot really speak to that. They are a
part of the DSAM, the Deputy Secretary for Administration, but
I communicate with them. I encouraged them, as I committed to
you, that I would seek another contracting officer to handle
this particular situation.
I think it woke them up, in that not only did I get one, I
got one directly from them. I did not have to bring one from
another BIA location. They paid attention to that. We have a
new CFO who is very committed to the quality in the contracting
officers. He is looking at their credentials.
He actually just provided me, just yesterday, a list of
every contract we have concerning BIE schools and tribally-
operated schools. We are committed to it and I know that he is
very committed to it.
Senator Udall. Thank you very much for your answer. Thank
you for your commitment to these issues.
Thank you, Mr. Chairman.
The Chairman. Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chairman and Ranking
Member Udall, for having this hearing.
I agree with the comments I heard earlier. I don't think
any of the legislation we are talking about today is
unreasonable at all. I want to thank Mr. LaCounte for your
support and BLM's support of the legislation.
While we have you here, I have a quick question for you. I
know, and we have been talking about this, that the
Administration's budget proposal was about $18 million to begin
the process of the reorganization within the Department of the
Interior. Is that reorganization still going forward, to your
knowledge?
Mr. LaCounte. The reorganization of the Department, minus
the Bureau of Indian Affairs, the Bureau of Indian Education,
and the Office of the Special Trustee, are moving forward.
Senator Cortez Masto. So, those three agencies you just
identified are not part of the reorganization?
Mr. LaCounte. At this time, they are not.
Senator Cortez Masto. Have you made the tribal communities
aware of that?
Mr. LaCounte. Yes.
Senator Cortez Masto. Okay, because I just came from
northern Nevada and meeting with some of the tribal communities
and they had no idea. In fact, they were concerned they had not
been consulted at all.
So what I am hearing right now is they are not part of a
reorganization, none of that is taking place. Whatever the
chain of command moving forward from the top all the way down
to those agencies that impact our tribal communities, there is
no reorganization, no change in the chain of command?
Mr. LaCounte. There is not.
Senator Cortez Masto. Okay. That is good to know. Thank you
very much.
Vice Chairman Yankton, let me ask you very quickly, I
appreciate the legislation. Is it true that currently, now,
there is concurrent jurisdiction for law enforcement both by
your tribe and tribal law enforcement along with the State law
enforcement? Is that what is happening right now?
Mr. Yankton. Right now, the current law does give the State
and counties authority to come in and exercise their law.
Senator Cortez Masto. But have they been?
Mr. Yankton. No.
Senator Cortez Masto. That was my question. Even though the
jurisdiction was transferred to the State, literally, my
understanding is there has been no law enforcement with that
transfer. Is that correct?
Mr. Yankton. Probably not for the last 40, 50 years.
Senator Cortez Masto. And that is one of the reasons to put
together your own tribal court, tribal law and law enforcement
to move forward and make this change?
Mr. Yankton. Yes. Mind you, we really would also still be
receptive to doing memoranda with the different State law
departments, highway patrol, county, city. I think the more the
merrier when it comes to policing no matter what area you are
in. We just need to learn to know what those boundaries and
jurisdictions and laws are because we are a federally-
recognized tribe.
Senator Cortez Masto. I appreciate that. Coming from
Nevada, and the former States Attorney there, that is exactly
what some of our local jurisdictions did. We entered into MOUs
with the tribal communities for law enforcement purposes. I so
appreciate that comment.
I also know that, and this is a concern I have with BIA and
more resources that are needed and the support for law
enforcement across our tribal communities. I see it lacking in
the State of Nevada. I think it is a resource issue. You have
identified it.
I look forward to whatever proposals and budget proposals
that you have moving forward and what your needs are. I am
hoping you come forward, Director LaCounte, and let us know,
because we want to be supportive of our communities. I look
forward to working with you on that as well.
I have no further questions. Thank you very much.
The Chairman. Thank you, Senator.
At this point, I would like to thank all of our witnesses.
We appreciate you being here and presenting testimony today.
Members may have follow-up questions which they can submit
for the record. We would ask that you respond in a timely way.
The hearing record will be open for two weeks.
With that, our thanks to you. We are adjourned.
[Whereupon, at 4:36 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Gary Batton, Chief, Choctaw Nation of
Oklahoma
Halito!
Good afternoon, Mr. Chairman, Mr. Vice Chairman, Senator Lankford,
and Members of the Committee. My name is Gary Batton. I am the elected
Chief of the Choctaw Nation of Oklahoma, on whose behalf I offer this
testimony in support of prompt approval by the Senate of H.R. 2606, the
House-passed legislation known as the Stigler Act Amendments of 2018.
Background on the Choctaw Nation.
The Choctaw Nation's jurisdictional boundaries encompass
approximately 11,000 square miles of land, including 10\1/2\ counties
in southeastern Oklahoma. That covers an area larger than Maryland and
Rhode Island combined. Of the worldwide total of about 194,000 enrolled
Choctaw citizens, about 109,000 live within Oklahoma, and of those,
about 44,300 reside within the Choctaw Nation.
Because of our large, mostly rural geographic area, checkerboard
land ownership, and commingling of tribal and nontribal communities,
our challenges in land management are a bit more acute than those
confronting other tribal governments exercising jurisdiction over a
contiguous tribal land base. But the Choctaw Nation is making the most
of every opportunity.
The Choctaw Nation was designated as the first tribal Promise Zone
in 2014. More recently, the Choctaw Nation secured thirteen separate
Opportunity Zone designations in census tracts within its
jurisdictional boundaries, pursuant to authorities enacted in the Tax
Cuts and Jobs Act of 2017. We earned these distinctions due to the many
challenges we face in our region, and due to the proven leadership and
capacity of Choctaw Nation to efficiently use resources in ways that
can make a difference and leverage federal investments in southeastern
Oklahoma for all residents though partnership and collaboration.
Background on H.R. 2060 and the Stigler Act
On September 12, 2018, H.R. 2606 was placed on the suspension
calendar and passed by voice vote of the House of Representatives. H.R.
2606 would amend the Act of August 4, 1947 (also known as the Stigler
Act) to lift certain unique restrictions placed upon Indians who are
members of five of the 38 tribes in Oklahoma. The Choctaw Nation of
Oklahoma is one of the five tribes who are located in eastern Oklahoma
(a/k/a the ``Five Tribes'').
About 120 years ago Congress enacted the Curtis Act which attempted
to break up the tribally-owned lands of the Five Tribes, allotting them
to individual members of the Five Tribes, and opening up some of the
lands of the Five Tribes to non-Indian ownership. For the next several
decades, most of the allotted lands were held by individual Indians
subject to restrictive protections designed to preserve the Indian land
base by sharply limiting alienation (sale or transfer) and taxation
without federal approval.
In 1947, Congress enacted the Stigler Act in order to remove the
protections of federal restrictions during probate proceedings if heirs
and devisees of an allotment have less than one-half degree Indian
blood quantum. On a prospective basis affecting only future probate
proceedings, H.R. 2606 would eliminate this provision that terminates
Indian land status.
Choctaw Nation Experience with Stigler Act Authority
The Stigler Act's 50 percent blood quantum threshold can no longer
be met by many citizens of the Choctaw Nation who remain actively
identified with their Choctaw families and community and who want to
maintain the protections of federally restricted status for the surface
and subsurface interests in lands they own. The Stigler Act's
termination clause has led to the wholesale loss of federal land
protections in the past six decades, and the consequent loss of Indian
land interests in the Choctaw Nation.
The Choctaw Nation bears a disproportionate share of the harm being
caused by the Stigler Act termination threshold, because the Choctaw
Nation has more federallyrestricted allotted lands than any one of the
other four tribes in eastern Oklahoma. Originally 6,952,960 acres were
allotted to Indian individuals within the Choctaw Nation. As of early
2016, after a century of staggering losses of Choctaw Indian lands, the
number of allotted lands in Choctaw Nation was reduced to 135,263
acres. Since the beginning of 2017, at least forty Choctaw citizens who
are heirs of allottees lost their restricted interests in an additional
2,800 acres as a consequence of the Stigler Act threshold not being met
in the probate proceedings of the growing number of elderly Choctaw
citizens who are passing on.
Why Choctaw Nation Supports H.R. 2606.
Federal land restrictions are of incredible value to the Choctaw
Nation and to our Choctaw citizens. First, they help slow the loss of
what little is left of Indian land ownership in Choctaw's part of
Indian Country. Second, federal land restrictions maintain without
question the well-settled territorial aspects of tribal jurisdiction.
Third, such federal land restrictions typically are an eligibility
requirement for federal assistance in the form of program funding,
grants, loans and loan guarantees.
Choctaw Nation has long sought the relief that would be provided by
H.R. 2606. H.R. 2606 is a streamlined, simple technical amendment that
would fix the core of our main problem with the Stigler Act. H.R. 2606
only applies to the five tribes in eastern Oklahoma because the Stigler
Act it would amend only applies to our five tribes. None of the 568
other federally recognized tribes or their members suffer the same
penalty that is imposed on our five tribes by the Stigler Act.
In order to maintain the protections of federal restrictions on
Indian land title, the Choctaw Nation seeks parity with all other
tribes outside of eastern Oklahoma. The Stigler Act denies us that
parity. H.R. 2606 would restore that parity and repeal the termination
clause that is in the Stigler Act today.
Fixing the Stigler Act is long overdue. We urge the Committee to
move quickly during the remaining days of this session to favorably
report H.R. 2606 to the Senate floor for prompt enactment as passed by
the House, without amendment. Any change to H.R. 2606 at this late
stage of the process poses a real and substantial threat to enactment
of this relief this year or in the foreseeable future.
Conclusion
The Choctaw Nation appreciates everything that Senator Lankford has
done to get H.R. 2606 to the finish line at this hearing today, and
everything that he, Chairman Hoeven, Vice Chairman Udall, and other
members of this Committee are doing every day to advance the interests
and concerns of the Choctaw Nation and all Indian tribes. Your
continued support in these matters plays a crucial role in the Choctaw
Nation's efforts to live out our foundational values of faith, family
and culture.
Thank you for joining in our mission to help the Choctaw Nation and
all of Indian Country not only survive but thrive. We are pleased to
provide this written testimony and thank you for the opportunity to do
so.
Yakoke (Thank you).
______
Prepared Statement of Hon. Bill Anoatubby, Governor, Chickasaw Nation
Chairman Hoeven, Vice Chairman Udall, and honorable members of the
Committee:
My name is Bill Anoatubby, and I am Governor of the Chickasaw
Nation. I support the comments offered today by other leaders of the
Five Tribes, but I offer as well this brief statement on behalf of the
Chickasaw Nation and its citizens, who live throughout our treaty
territory, the State of Oklahoma, and the United States. Thank you for
this opportunity to address you on this matter.
H.R. 2606 presents Congress with the opportunity to amend the
Stigler Act and remedy a longstanding and unjustifiable complication to
Chickasaw citizen allotment title and land management. As others have
highlighted, the Stigler Act's requirements and procedures apply only
to allotment lands held by citizens of the Five Tribes--that is,
citizens of either the Cherokee Nation of Oklahoma, the Chickasaw
Nation, the Choctaw Nation of Oklahoma, the Muscogee (Creek) Nation, or
the Seminole Nation of Oklahoma. Allotments held by no other Tribe's
citizens, whether in Oklahoma or elsewhere in Indian country, are
subject to these unique complications.
We, the leadership of the Five Tribes, previously sought
comprehensive reform and update of the Stigler Act of 1947. More than a
decade ago, we succeeded in moving reforms through the House of
Representatives, but the initiative fell short of enactment into
Federal law. More recently, we renewed our efforts on a far narrower
basis than the prior comprehensive initiative, and we come before you
again with passage of a productive bill in the House, H.R. 2606, which
is now presented to you for your consideration. If advanced by this
Committee, approved by the Senate, and enacted into law, H.R. 2606
would reform the most odious and archaic legal obstacle to the
preservation of Five Tribe citizens' allotted lands--specifically, it
would strike from law the termination-era requirement that Federal law
protections of American Indian and Tribal interests be contingent upon
an allottee's being of \1/2\-``Indian blood.'' H.R. 2606, once enacted,
would strike that requirement with prospective effect only and, thus,
not create any new parcel of restricted or Tribal trust land. Nor would
it change other procedural requirements that apply to Five Tribe
allotment lands. It would, instead, allow presently restricted lands to
remain in protected status subject to the desire of the owners rather
than by application of an anachronistic and likely unconstitutional
blood-quantum requirement.
By narrowly amending the Stigler Act in this manner, H.R. 2606
would end an archaic and unnecessary provision of federal law and end
one problematic aspect of Congress's prior distinct and disparate
treatment of Five Tribe lands, bringing the rules into greater parity
with what applies to allotment lands held by other American Indians. We
accordingly strongly commend this narrow measure for your favorable
action.
On behalf of the Chickasaw Nation and its citizens, I ask that you
support passage and enactment of H.R. 2606.
Thank you again for the opportunity to address you on this matter.
[all]