- LEGISLATIVE HEARING ON H.R. 312, TO REAFFIRM THE MASHPEE WAMPANOAG TRIBE RESERVATION, AND FOR OTHER PURPOSES, "MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT"; H.R. 375, TO AMEND THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN TRIBES, AND FOR OTHER PURPOSES; AND DISCUSSION DRAFT OF H.R., TO PRESCRIBE PROCEDURES FOR EFFECTIVE CONSULTATION AND COORDINATION BY FEDERAL AGENCIES WITH FEDERALLY RECOGNIZED INDIAN TRIBES REGARDING FEDERAL GOVERNMENT ACTIVITIES THAT IMPACT TRIBAL LANDS AND INTERESTS TO ENSURE THAT MEANINGFUL TRIBAL INPUT IS AN INTEGRAL PART OF THE FEDERAL DECISION-MAKING PROCESS, "RESPECT ACT"

    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

     H.R. 312, ``MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT'';
    H.R. 375, TO AMEND THE ACT OF JUNE 18, 1934, TO REAFFIRM THE AUTHORITY
     OF THE SECRETARY OF THE INTERIOR TO TAKE LAND INTO TRUST FOR INDIAN
      TRIBES, AND FOR OTHER PURPOSES; AND DISCUSSION DRAFT OF H.R. ____,
                                ``RESPECT ACT''

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

                              LEGISLATIVE HEARING

                                   BEFORE THE

            SUBCOMMITTEE ON INDIGENOUS PEOPLES OF THE UNITED STATES

                                     OF THE

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                            Wednesday, April 3, 2019
                                   __________

                               Serial No. 116-11
                                   __________

           Printed for the use of the Committee on Natural Resources

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov
                                       or
              Committee address: http://naturalresources.house.gov

                                  ___________

                        U.S. GOVERNMENT PUBLISHING OFFICE

    35-971 PDF                 WASHINGTON : 2019

                         COMMITTEE ON NATURAL RESOURCES

                          RAUL M. GRIJALVA, AZ, Chair
                        DEBRA A. HAALAND, NM, Vice Chair
       GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
                   ROB BISHOP, UT, Ranking Republican Member

    Grace F. Napolitano, CA              Don Young, AK
    Jim Costa, CA                        Louie Gohmert, TX
    Gregorio Kilili Camacho Sablan,      Doug Lamborn, CO
        CNMI                             Robert J. Wittman, VA
    Jared Huffman, CA                    Tom McClintock, CA
    Alan S. Lowenthal, CA                Paul A. Gosar, AZ
    Ruben Gallego, AZ                    Paul Cook, CA
    TJ Cox, CA                           Bruce Westerman, AR
    Joe Neguse, CO                       Garret Graves, LA
    Mike Levin, CA                       Jody B. Hice, GA
    Debra A. Haaland, NM                 Aumua Amata Coleman Radewagen, AS
    Jefferson Van Drew, NJ               Daniel Webster, FL
    Joe Cunningham, SC                   Liz Cheney, WY
    Nydia M. Velazquez, NY               Mike Johnson, LA
    Diana DeGette, CO                    Jenniffer Gonzalez-Colon, PR
    Wm. Lacy Clay, MO                    John R. Curtis, UT
    Debbie Dingell, MI                   Kevin Hern, OK
    Anthony G. Brown, MD                 Russ Fulcher, ID
    A. Donald McEachin, VA
    Darren Soto, FL
    Ed Case, HI
    Steven Horsford, NV
    Michael F. Q. San Nicolas, GU
    Matt Cartwright, PA
    Paul Tonko, NY
    Vacancy

                         David Watkins, Chief of Staff
                            Sarah Lim, Chief Counsel
                    Parish Braden, Republican Staff Director
                       http://naturalresources.house.gov
                                     ------

            SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES

                            RUBEN GALLEGO, AZ, Chair
                    PAUL COOK, CA, Ranking Republican Member

    Darren Soto, FL                      Don Young, AK
    Michael F. Q. San Nicolas, GU        Aumua Amata Coleman Radewagen, AS
    Debra A. Haaland, NM                 John R. Curtis, UT
    Ed Case, HI                          Kevin Hern, OK
    Matt Cartwright, PA                  Vacancy
    Vacancy                              Rob Bishop, UT, ex officio
    Vacancy
    Raul M. Grijalva, AZ, ex officio

                                     ------
                                    CONTENTS

                                  ----------
                                                                       Page

    Hearing held on Wednesday, April 3, 2019.........................     1

    Statement of Members:
        Cole, Hon. Tom, a Representative in Congress from the State
          of Oklahoma................................................     6
        Cook, Hon. Paul, a Representative in Congress from the State
          of California..............................................     5
        Gallego, Hon. Ruben, a Representative in Congress from the
          State of Arizona...........................................     2
            Prepared statement of....................................     3
        Grijalva, Hon. Raul M., a Representative in Congress from the
          State of Arizona...........................................     9
            Prepared statement of....................................    10
        Keating, Hon. William R., a Representative in Congress from
          the Commonwealth of Massachusetts..........................     7

    Statement of Witnesses:
        Baird, Hon. Jessie Little Doe, Vice Chairwoman, Mashpee
          Wampanoag Tribe, Mashpee, Massachusetts....................    11
            Prepared statement of....................................    13
        Fletcher, Matthew, Professor of Law and Director of the
          Indigenous Law & Policy Center, Michigan State University
          College of Law, East Lansing, Michigan.....................    56
            Prepared statement of....................................    58
        Ray-Hodge, Vanessa L., Partner, Sonosky, Chambers, Sachse,
          Mielke & Brownell, LLP, Albuquerque, New Mexico............    52
            Prepared statement of....................................    54
        Richards, Claire, Executive Counsel to the Governor, State of
          Rhode Island, Providence, Rhode Island.....................    41
            Prepared statement of....................................    43
        Routel, Colette, Professor of Law, Mitchell Hamline School of
          Law, St. Paul, Minnesota...................................    24
            Prepared statement of....................................    25
            Questions submitted for the record.......................    33
        Washburn, Kevin, Professor of Law, University of Iowa College
          of Law, Iowa City, Iowa....................................    16
            Prepared statement of....................................    18
            Questions submitted for the record.......................    23

    Additional Materials Submitted for the Record:
        List of documents submitted for the record retained in the
          Committee's official files.................................   139

        Cicilline, David and Langevin, James, Representatives from
          the State of Massachusetts, Testimony for the Record in
          Opposition.................................................    78
        Mashpee Chamber of Commerce, Support Letter..................    72
        Mashpee Office of Town Manager, Support Letter...............    73
        Town of Mashpee, Support Letter..............................    74
        City of Taunton, Office of the Mayor, Support Letter.........    75
        City of Taunton, Mayor Thomas Hoye, Testimony in Support.....    76
        Taunton Area Chamber of Commerce, Support Letter.............    77

    Submissions for the Record by Rep. Keating
            Akiak Native Community, Support Letter...................    79
            Apache Alliance, Support Letter..........................    80
            ATNI--Affiliated Tribes of Northwest Indians, Support
              Letter.................................................    81
            Big Valley Band of Pomo Indians, Support Letter..........    82
            Cheyenne River Sioux Tribe, Support Letter...............    83
            Chippewa Cree Tribe of the Rocky Boy's Reservation,
              Support Letter.........................................    84
            Ft. Sill--Chiricahua--Warm Springs Apache Tribe, Support
              Letter.................................................    85
            Grand Traverse Ottawa and Chippewa Indians, Support
              Letter.................................................    86
            Guidiville Indian Rancheria, Support Letter..............    87
            Hualapai Tribe, Support Letter...........................    88
            Jena Band of Choctaw Indians, Support Letter.............    89
            Lac Vieux Desert Band of Lake Superior Chippewa, Support
              Letter.................................................    90
            Lower Brule Sioux Tribe, Support Letter..................    91
            Mashantucket Pequot Tribe, Support Letter................    92
            Massachusetts Congressional Delegation, Support Letter...    93
            Massachusetts Senate, Nick Collins, Support Letter.......    95
            Massachusetts Senate, Minority Leader, Bruce Tarr,
              Support Letter.........................................    96
            Massachusetts State Rep. Bradley Jones, Support Letter...    97
            Massachusetts State Rep. Shaunna O'Connell, Support
              Letter.................................................    98
            Massachusetts State Rep. David Vieira, Support Letter....    99
            Mayflower Descendants, Society of, Support Letter........   100
            Mechoopda Indian Tribe, Support Letter...................   101
            Midwest Alliance of Sovereign Tribes, Support Letter.....   102
            Mohegan Tribe, Support Letter............................   103
            NAFOA, Support Letter....................................   104
            Narragansett Indian Tribe, Support Letter................   105
            Narragansett Indian Tribe, Chief Stanton, Testimony in
              Support................................................   106
            National Congress of American Indians, Support Letter....   111
            National Congress of American Indians, Testimony in
              Support................................................   112
            National Indian Gaming Association, Support Resolution...   115
            Native American Rights Fund, Support Letter..............   116
            New England Residents, Support Petition..................   117
            Nez Perce Tribe, Support Letter..........................   118
            Oneida Nation, Support Letter............................   119
            Otoe Missouria Tribe of Indians, Support Letter..........   120
            Pascua Yaqui Tribe, Support Letter.......................   121
            Prairie Island Indian Community, Support Letter..........   122
            Pyramid Lake Paiute Tribe, Support Letter................   123
            Rocky Mountain Tribal Leaders Council, Support Resolution   124
            San Carlos Apache Tribe, Support Letter..................   125
            Shinnecock Indian Nation, Support Letter.................   126
            Spirit Lake Tribe, Support Letter........................   127
            St. Croix Chippewa Indians of Wisconsin, Support Letter..   128
            Stockbridge-Munsee Community, Support Letter.............   129
            Suquamish Tribe, Support Resolution......................   130
            Sycuan Band of Indians, Support Letter...................   131
            Tohono O'odham Nation, Legislative Council, Support
              Resolution.............................................   132
            Tonto Apache Tribe, Support Letter.......................   133
            USET--United South and Eastern Tribes, Support Letter....   134
            USET--United South and Eastern Tribes, Testimony in
              Support................................................   135
            Ute Indian Tribe, Support Letter.........................   137
            Waccamaw Indian Tribe, Support Letter....................   138
            Yankton Sioux Tribe, Support Letter......................   139

      LEGISLATIVE HEARING ON H.R. 312, TO REAFFIRM THE MASHPEE WAMPANOAG
     TRIBE RESERVATION, AND FOR OTHER PURPOSES, ``MASHPEE WAMPANOAG TRIBE
    RESERVATION REAFFIRMATION ACT''; H.R. 375, TO AMEND THE ACT OF JUNE 18,
      1934, TO REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO
      TAKE LAND INTO TRUST FOR INDIAN TRIBES, AND FOR OTHER PURPOSES; AND
     DISCUSSION DRAFT OF H.R. ____, TO PRESCRIBE PROCEDURES FOR EFFECTIVE
       CONSULTATION AND COORDINATION BY FEDERAL AGENCIES WITH FEDERALLY
     RECOGNIZED INDIAN TRIBES REGARDING FEDERAL GOVERNMENT ACTIVITIES THAT
      IMPACT TRIBAL LANDS AND INTERESTS TO ENSURE THAT MEANINGFUL TRIBAL
       INPUT IS AN INTEGRAL PART OF THE FEDERAL DECISION-MAKING PROCESS,
                                ``RESPECT ACT''

                                  ----------

                            Wednesday, April 3, 2019

                         U.S. House of Representatives

            Subcommittee on Indigenous Peoples of the United States

                         Committee on Natural Resources

                                 Washington, DC

                                  ----------

        The Subcommittee met, pursuant to notice, at 2:31 p.m., in
    room 1324, Longworth House Office Building, Hon. Ruben Gallego
    [Chairman of the Subcommittee] presiding.
        Present: Representatives Gallego, San Nicolas, Haaland,
    Grijalva; Cook, Young, and Gosar.
        Also present: Representatives Cole and Keating.

        Mr. Gallego. Thank you everybody. The legislative hearing
    by the Subcommittee for Indigenous Peoples will come to order.
    The Subcommittee is meeting today to hear testimony on three
    bills: H.R. 312, H.R. 375, and discussion draft of the RESPECT
    Act. H.R. 312, sponsored by Representative Bill Keating, the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms
    the trust status of the lands of the Mashpee Wampanoag Tribe in
    Massachusetts.
        H.R. 375, sponsored by Representative Tom Cole, would amend
    the Indian Reorganization Act of 1934 to give the Secretary of
    the Interior the power to take land into trust for all tribes
    regardless of the date of the tribe's recognition. This is
    known as the Clean Carcieri Fix.
        The discussion draft of the RESPECT Act, sponsored by
    Chairman Raul Grijalva codifies tribal consultation procedures
    for all Federal agencies to follow. It establishes standards,
    guarantees that meaningful and effective tribal consultation
    occurs when Federal agencies are planning activities that
    impact tribes, and provides judicial recourse for tribes when
    agencies violate their consultation obligation.
        Under Committee Rule 4(f), any oral opening statements at
    hearings are limited to the Chairman and the Ranking Minority
    Member, therefore I ask unanimous consent that all other
    Members' opening statements be made part of the hearing record
    if they are submitted to the Subcommittee Clerk by 5 p.m.
    today, or the close of the hearing, whichever comes first.
    Hearing no objections, so ordered.
        I now ask unanimous consent that Representative Cole,
    Representative Keating, and Representative Gosar, who is not
    here but will be joining us, have permission to sit on the dais
    and participate in the hearing if they wish. So ordered.

    HON. RUBEN GALLEGO, A REPRESENTATIVE IN CONGRESS FROM THE STATE
                               OF ARIZONA

        Mr. Gallego. Good morning to you all, and a warm welcome to
    all of our witnesses here today. Today, we are examining
    legislation that addresses two issues at the heart of tribal
    sovereignty and self-governance: tribes' ability to take land
    into trust and tribal consultation. The acquisition of trust
    land for the benefit of Indian tribes is essential to tribal
    self-determination, economic development, and the protection of
    tribal lands for generations to come. This is why the Carcieri
    Supreme Court decision has been so disturbing to Indian
    Country.
        For over eight decades, the Department of the Interior,
    under both Republican and Democratic administrations, had
    consistently construed the Indian Reorganization Act to
    authorize the placement of land into trust for any tribe, so
    long as that tribe is federally recognized at the time of the
    trust application.
        However, in 2009, the Supreme Court held in Carcieri v.
    Salazar that only tribes that were under Federal jurisdiction
    in 1934 were eligible to place land into trust, effectively
    creating a two-tiered system for trust land acquisition.
        The uncertainty caused by this decision continues to
    threaten tribal sovereignty to this day. A legislative fix is
    necessary to ensure that we are fulfilling one of our country's
    most important obligations to Indigenous communities.
        H.R. 375 is that fix. I want to thank the sponsor of the
    legislation, our colleague from Oklahoma, Mr. Cole, for
    introducing this bill and for testifying here today. Enacting
    H.R. 375 would restore clarity and stability for all federally
    recognized tribes, regardless of their date of recognition.
        One Carcieri consequence that many tribes have faced in the
    aftermath of the decision is frivolous lawsuits on land that
    they have had in trust for years. One such tribe is the Mashpee
    Wampanoag of Massachusetts.
        Like many tribes, for centuries after Europeans came to
    this continent, the Mashpee were intentionally and
    systematically rendered landless by state and Federal
    Governments. They have fought long and hard since that time to
    re-establish that which was taken from them--a homeland. They
    did that just in 2015 when the Interior Department approved
    their application to take 320 acres into trust for the tribe.
        In 2016, however, a suit was filed in Federal court that
    challenged Interior's action based on the Carcieri decision.
    Although the Obama Department of Justice initially sought to
    defend Mashpee land in an appeal, in May 2017, the Trump DOJ
    inexplicably withdrew that appeal. Then on September 7, 2018,
    Interior issued its first Carcieri decision, stripping the
    tribe of its reservation, resulting in the removal of the 2015
    trust land from the Mashpee territory.
        The legal limbo imposed by this decision has left the
    Mashpee on the brink of disillusion. The Mashpee's relationship
    with the Federal Government is one of the oldest in the United
    States, dating back to when the Pilgrims landed at Plymouth
    Rock. I think it is a particularly sad statement that 400 years
    later they still have to defend against the attack on their
    lands.
        H.R. 312 would reaffirm the trust status of the Mashpee
    lands and ensure that these types of attacks on their homeland
    do not continue. I want to thank the sponsor of this
    legislation, the gentleman from Massachusetts, Mr. Keating, for
    being here to testify.
        Finally, we come to the issue of tribal consultation. All
    of us here understand the importance of ensuring effective,
    meaningful consultation with tribal governments before the
    Federal Government takes actions impacting tribal communities.
    However, time and time again, we have heard from tribes about
    the problems with the current consultation framework--namely,
    that there really isn't one.
        Consultation processes and procedures differ wildly from
    agency to agency and sometimes from region to region within the
    same agency. The result is a myriad of consultation procedures
    of varying effectiveness, and sometimes no meaningful
    consultation at all. Consultation requirements should be clear
    and should have the force of the law.
        The RESPECT Act would codify a process for government-to-
    government tribal consultation and give tribes legal recourse
    when they are denied access to this process. I want to thank
    Chairman Grijalva for his tireless work on this issue and I
    look forward to discussing the proposed legislation with him
    and our witnesses.

        [The prepared statement of Mr. Gallego follows:]
     Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
                    Indigenous Peoples of the United States
        Good morning to you all, and a warm welcome to all our witnesses
    here today. Today, we are examining legislation that addresses two
    issues at the heart of tribal sovereignty and self-governance: tribes'
    ability to take land into trust and tribal consultation. The
    acquisition of trust land for the benefit of Indian tribes is essential
    to tribal self-determination, economic development, and the protection
    of tribal lands for generations to come. This is why the Carcieri
    Supreme Court decision has been so disturbing to Indian Country.
        For over eight decades, the Department of the Interior, under both
    Republican and Democratic administrations, had consistently construed
    the Indian Reorganization Act to authorize the placement of land into
    trust for any tribe, so long as the tribe is federally recognized at
    the time of the trust application.
        However, in 2009, the Supreme Court held in Carcieri v. Salazar
    that only tribes that were ``under federal jurisdiction'' in 1934 were
    eligible to place land into trust--effectively creating a two-tiered
    system for trust land acquisition.
        The uncertainty caused by Carcieri continues to threaten tribal
    sovereignty to this day. A legislative fix is necessary to ensure that
    we are fulfilling one of our country's most important obligations to
    Indigenous communities.
        H.R. 375 is that fix. I want to thank the sponsor of the
    legislation, our colleague from Oklahoma, Mr. Cole, for introducing
    this bill and for testifying here today. Enacting H.R. 375 would
    restore clarity and stability for all federally recognized tribes,
    regardless of their date of recognition.
        One Carcieri consequence that many tribes have faced in the
    aftermath of the decision is frivolous lawsuits on land that they have
    had in trust for years. One such tribe is the Mashpee Wampanoag of
    Massachusetts.
        Like many tribes, for centuries after Europeans came to this
    continent, the Mashpee were intentionally and systemically rendered
    landless by state and Federal Governments. They have fought long and
    hard since that time to re-establish that which was taken from them: a
    homeland. They did just that in 2015, when the Interior Department
    approved their application to take 320 acres into trust for the Tribe.
        In 2016, however, a suit was filed in Federal court that challenged
    Interior's action based on the Carcieri decision. Although the Obama
    Department of Justice initially sought to defend Mashpee's land in an
    appeal, in May 2017, the Trump DOJ inexplicably withdrew the appeal.
        Then, on September 7, 2018, Interior issued its first Carcieri
    decision stripping a tribe of its reservation, resulting in the removal
    of the 2015 trust land from Mashpee territory.
        The legal limbo imposed by this decision has left the Mashpee on
    the brink of dissolution. The Mashpee's relationship with the Federal
    Government is one of the oldest in the United States, dating back to
    when the Pilgrims landed at Plymouth Rock. I think it's a particularly
    sad statement that 400 years later they still have to defend against
    attacks on their lands.
        H.R. 312 would reaffirm the trust status of Mashpee lands and
    ensure that these types of attacks on their homeland do not continue. I
    want to thank the sponsor of the legislation, the gentlemen from
    Massachusetts, Mr. Keating, for being here today to testify.
        Finally, we come to the issue of tribal consultation. All of us
    here understand the importance of ensuring effective, meaningful
    consultation with tribal governments before the Federal Government
    takes actions impacting tribal communities. However, time and time
    again, we have heard from tribes about the problems with the current
    consultation framework--namely, that there really isn't one.
        Consultation processes and procedures differ widely from agency to
    agency, and sometimes from region to region within an agency. The
    result is a myriad of consultation procedures of varying
    effectiveness--and sometimes no meaningful consultation at all.
    Consultation requirements should be clear and should have the force of
    law.
        The RESPECT Act would codify a process for government-to-government
    tribal consultation and give tribes legal recourse when they are denied
    access to this important process. I want to thank Chairman Grijalva for
    his tireless work on this issue, and I look forward to discussing the
    proposed legislation with him and our witnesses.
        I would now like to recognize the Ranking Member, Mr. Cook, for his
    opening statement.

                                     ______

        Mr. Gallego. I would now like to recognize the Ranking
    Member, Mr. Cook, for his opening statement.

    STATEMENT OF HON. PAUL COOK, A REPRESENTATIVE IN CONGRESS FROM
                        THE STATE OF CALIFORNIA

        Mr. Cook. Thank you, Mr. Chairman. I want to apologize for
    being late. I was on the way over and I got run down in a
    crosswalk by some guy with Alaskan plates.
        [Laughter.]
        Mr. Cook. So, I continued my journey, hobbled up here and
    so once again, I am always certainly cognizant of the time
    constraints.
        As you mentioned, the Subcommittee will receive testimony
    today on two bills and a draft bill. And from the outset, I
    want to express my support for H.R. 375 and H.R. 312 because
    they bring all tribes, including the Mashpee Tribe, onto an
    even footing with all the other tribes for having land acquired
    in trust under the Indian Reorganization Act of 1934.
        Section 5 of the Indian Reorganization Act--and I have in
    here the IRA, I am sorry, the Irish in me, I think that is a
    very dangerous phrase, but I will go with the flow--it
    authorizes the Secretary of the Interior to acquire any
    interest in land or water to be held in trust for an Indian
    tribe now under Federal jurisdiction. In 2009, the Supreme
    Court resolved the lawsuit, resolved by Rhode Island Governor
    Carcieri, holding that the tribe now under Federal jurisdiction
    refers only to those tribes that were under the Federal
    jurisdiction of the United States when the Indian
    Reorganization Act was enacted in 1934.
        H.R. 375, sponsored by Mr. Cole, would reverse the Supreme
    Court ruling through an amendment to the Indian Reorganization
    Act. This bill would provide that any federally recognized
    Indian tribe, regardless of its status when the IRA was enacted
    in 1934, may have lands taken in trust under the authority of
    the subject Act. This bill creates certainty for tribal
    government that wish to use their lands for economic
    development and other tribal purposes.
        The second bill, H.R. 312, sponsored by our colleague from
    Massachusetts--and he is still gloating over the two wins that
    they had in baseball and football, but we won't mention that--
    Mr. Keating, looks to ratify and confirm previous actions, made
    by the Secretary of the Interior during the Obama
    administration, to acquire land in trust for the Mashpee Tribe,
    just as Mr. Cole's bill aims to do for all tribes.
        The Mashpee Tribe, one of the two federally recognized
    tribes in Massachusetts, was granted Federal recognition by the
    Department of the Interior in 2007, but its status has since
    been challenged due to the ruling. These two bills, H.R. 375
    and H.R. 312, would put many tribes on the pathway to better
    health, better education and great self-reliance, a goal shared
    by tribes, by the Federal Government, and I hope by everyone in
    this room.
        The Federal Government has charged itself with moral
    obligations of the highest responsibility and trust toward
    tribes. It has quoted in the Seminole Nation v. United States
    1942--and Congressman Young, I was not born then, I was born
    much later and I won't share that information with you--by
    allowing the impacts of the Carcieri decision to stand without
    remedy. For a decade, Congress has abandoned the trust
    responsibility for many tribes by allowing the impacts of that
    decision to stand without remedy for a decade.
        Congress, both Republicans and Democrats, have abandoned
    that trust responsibility for many tribes. The solution here
    demands more than grandstanding. It is a complex issue--boy, I
    could underscore that--that demands our attention and diligence
    to get it right. Taking land into trust is perhaps the most
    important tool for tribes to improve the lives of their
    members, provides to them the modicum of the resources that the
    United States took from them through the deliberate policies of
    discrimination, forced relocation and other humiliations during
    the darkest periods of American history in tribal relations.
        The final bill is one that is sponsored by the Chair and
    this would prescribe procedures between Federal agencies--and
    I'm being gaveled down I guess--thank you, Mr. Chairman for my
    abbreviated remarks.
        Mr. Gallego. I apologize, Ranking Member Cook, that was
    just in jest.
        Mr. Cook. I was just going to praise the Chair.
        Mr. Gallego. Well, we don't need that. I thank you, Ranking
    Member Cook.
        Now I would like to welcome distinguished Members of
    Congress who wish to testify on the bills they have sponsored.
        First, I welcome our colleague from the great state of
    Oklahoma, Representative Cole, to speak on his bill, the Clean
    Carcieri Fix, H.R. 375.
        Next, we have the honorable gentleman from the Commonwealth
    of Massachusetts, Representative Keating, to testify on behalf
    of his legislation, H.R. 312, which would reaffirm to protect
    the Mashpee Tribal Reservation.
        And last, by no means least, the Chairman of the Natural
    Resources Committee, Representative Grijalva from Arizona, who
    will speak to his proposed tribal consultation legislation, the
    RESPECT Act.
        Thank you, sirs, for your testimony. Mr. Cole and Mr.
    Keating, you are welcome to join us on this dais and ask
    questions of the witnesses, but I know you have a very busy
    schedule so we understand if you must leave us.
        I would now like to recognize Representative Cole for 5
    minutes.

     STATEMENT OF HON. TOM COLE, A REPRESENTATIVE IN CONGRESS FROM
                         THE STATE OF OKLAHOMA

        Mr. Cole. Chairman Gallego, Ranking Member Cook, and
    members of the Committee, thank you for giving me the
    opportunity to testify. I appreciate you holding today's
    hearing on H.R. 375, legislation that would amend the Indian
    Reorganization Act of 1934, and reaffirm the authority of the
    Secretary of the Interior to take land into trust for Indian
    tribes.
        Between the passage of the Dawes Act in 1887 and the
    passage of the Indian Reorganization Act in 1934, the Indian
    land mass in the United States shrank by 86 million acres.
    Since the enactment of that law, the Department of the Interior
    has taken back only approximately 9 million acres of land into
    trust status. Tribes have used their trust lands to build
    community facilities such as schools, health centers and
    housing that served their tribal members. This land is also
    used for tribal enterprises and promotes economic development
    in communities that are often underserved and poverty stricken.
        In 2009, the Supreme Court of the United States overturned
    long-existing precedent in its decision on Carcieri v. Salazar.
    The Supreme Court rules specifically that the Secretary's
    authority to hold land in trust for tribal governments under
    the Indian Reorganization Act was limited only to recognized
    tribes ``now under Federal jurisdiction'' with the word ``now''
    meaning June 18, 1934, the date of the enactment of the Indian
    Reorganization Act.
        Previously, lower courts viewed the word ``now'' as the
    instant when the Secretary invoked their trust acquisition
    authority. However, the Supreme Court reversed lower courts'
    ruling on how the term ``now,'' ``now under Federal
    jurisdiction,'' Section 19 of the Indian Reorganization Act,
    was to be interpreted. It found that the phrase refers only to
    those tribes that were under the Federal jurisdiction of the
    United States when the Indian Reorganization Act was enacted in
    1934. As a result of the Carcieri decision, the Secretary of
    the Interior may no longer use the Indian Reorganization Act to
    acquire trust land for any post-1934 tribe without specific
    authorization from Congress.
        Because the Secretaries acquired lands in trust for dozens
    of tribes recognized after 1934, the Carcieri ruling calls into
    question the validity of the trust status of such lands and
    jeopardizes their immunity from state and local taxation and
    regulatory jurisdiction. Many tribes have been forced into
    court to defend the status of their trust land, costing them
    millions of dollars and compromising their investments and
    jurisdiction.
        H.R. 375 would amend the Indian Reorganization Act and
    clarify the language of the Supreme Court ruled upon by
    striking the term I previously referenced and inserting the
    words ``effective beginning on June 18, 1934.'' It would also
    amend the statute language from ``any recognized tribe now
    under Federal jurisdiction'' to ``any federally recognized
    Indian tribe.'' The modest changes clarify that the Secretary
    does have the authority to take land into trust for any tribe
    that the Federal Government has recognized.
        As a member of the Chickasaw Nation and co-chair of the
    congressional Native Caucus with my good friend, your fellow
    Committee Member, Representative Haaland, I commend the
    Subcommittee for moving forward with this legislation and
    certainly its willingness to address this important issue.
        Thank you very much, Mr. Chairman, and I am prepared to
    answer any questions at the appropriate time.
        Mr. Gallego. Thank you, Representative Cole. Now we will
    have Representative Keating from Massachusetts for 5 minutes.

       STATEMENT OF HON. WILLIAM R. KEATING, A REPRESENTATIVE IN
            CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS

        Mr. Keating. Thank you, Mr. Chairman. And in terms of your
    opening remarks, Ranking Member Cook, don't be sorry for the
    Irish in you. It is a badge of honor.
        Thank you, Chairman Gallego, Ranking Member Cook, the
    distinguished members of the Committee for inviting me to speak
    today about H.R. 312, the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.
        As you know, this bipartisan legislation would direct the
    Department of the Interior to keep 320 acres of Mashpee
    Wampanoag land in southeastern Massachusetts in trust as
    federally recognized reservation land. The Mashpee Wampanoag
    Tribe has called southern New England their home for more than
    12,000 years. Many of us know them as the tribe that welcomed
    the Pilgrims to Plymouth, Massachusetts for the first
    Thanksgiving. Sadly, like so many Native Americans, the Mashpee
    Wampanoags have experienced a long, tragic history of
    injustices, injustices that continue to this day.
        After a decade's long legal battle, the Mashpee Wampanoag
    Tribe finally won Federal recognition from the Department of
    the Interior in 2007. This distinction granted long overdue
    access to important Federal resources that are now vital to the
    tribe's existence. The tribe leverages its Federal support to
    provide adequate housing, offer employment opportunities and
    operate numerous essential services including law enforcement,
    native language learning, pre-K education, health care,
    counseling and many other things.
        In further recognition of their important place in our
    history, in September 2015, the Department of the Interior
    supported the Mashpee Wampanoag's Tribe in their plan to
    acquire land in Taunton, Massachusetts with the goal of placing
    into a Federal trust. However, as this Committee understands
    better than most, the Supreme Court's interpretation of the
    Indian Reorganization Act of 1934 in Carcieri v. Salazar
    resulted in great uncertainty for Native American tribes around
    the country. Like many others, the Mashpee Wampanoag Tribe's
    Federal recognition was placed at grave risk.
        Additionally, in September 2018, the Department of the
    Interior decided to reverse course and end its support for the
    Mashpee Wampanoag Tribe in an ongoing legal challenge to the
    status of its Taunton Reservation. This reversal has exposed
    the tribe to the unprecedented fate of having their land taken
    out of Federal trust. To this day, they remain the only
    federally recognized tribe in New England for which Congress
    has not acted to create and protect a reservation.
        It is for these reasons that H.R. 312 is so important. This
    legislation draws on precedents set by this House in both the
    113th and 115th Congresses to lift the Carcieri cloud over
    Mashpee Wampanoag's Tribe's existence and direct the Department
    of the Interior to consider them fully recognized for the
    purposes of the Indian Reorganization Act. This would ensure
    the Department can retain the Mashpee land in trust without
    issue or challenge providing safety and security at a time when
    the tribe finds itself on the brink of extinction.
        Under normal circumstances, legislation like H.R. 312 would
    pass the House without a hint of opposition. In the 113th
    Congress, the Gun Lake Trust Land Reaffirmation Act received
    overwhelming support by both parties. In the 115th Congress,
    the Thomasina E. Jordan Tribes of Virginia Federal Recognition
    Act passed unanimously by voice vote. Both of these Acts became
    law, each under a different president's administration.
        Unfortunately, due to economic factors outside the tribe's
    control, the Mashpee Wampanoag's status has become needlessly
    contentious. Put simply, the state of Rhode Island has decided
    that protection of their casino revenue is more important than
    the long-term existence of the Mashpee Wampanoag Tribe.
        The opposition to H.R. 312 is grounded in the belief that
    Rhode Island's decision to build near the Massachusetts State
    line should grant them territorial rights that extend over that
    border and into the Commonwealth of Massachusetts. Nothing in
    legislation grants a tribe any special permissions pertaining
    to the construction of the casino. H.R. 312 would not grant the
    Mashpee Wampanoag any new or special rights. It merely ensures
    that the Mashpee Wampanoag Tribe is treated equally alongside
    other Native American tribes and is no longer vulnerable to
    having its land taken out of trust.
        It is important to note that the Massachusetts State
    Government has already approved a casino development in the
    region regardless of whether the tribe operates it or not.
    Rhode Island knows full well that a private developer has bid
    for a separate project just up the road from the tribe's
    reservation. A casino is coming to southeastern Massachusetts
    no matter what, so why deal a death blow to this tribe?
        Mr. Chairman, Mr. Ranking Member, thank you for this timely
    hearing. As you know, the Mashpee Wampanoag Tribe finds
    themselves in an extremely dire and uncertain situation as the
    Federal recognition sits in limbo. Time is of the essence.
        Also, I ask for unanimous consent to introduce into the
    record 54 documents in support of H.R. 312, including a letter
    from the entire Massachusetts House Delegation urging support
    for an issue entirely within Massachusetts borders. These
    materials also include support from individual tribes from
    around the entire country, tribal coalitions, local government,
    local business organizations, and members of the Massachusetts
    State Legislature.
        To paraphrase one of the letters in these materials I place
    before you, our country would not be what it is without the
    help of the Mashpee Wampanoag Tribe providing the Mayflower
    passengers help nearly 400 years ago. Today, we must do our
    part to honor the Mashpee Wampanoag legacy and take one small
    step toward returning the favor.
        I thank the Committee and I yield back.
        Mr. Gallego. Thank you, Representative Keating. And now we
    will have Chairman Raul Grijalva.

        STATEMENT OF HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF ARIZONA

        Mr. Grijalva. Thank you, Mr. Chairman. The goals of the
    legislation are simple and straightforward: effective,
    meaningful tribal consultation as a matter of law. This has
    been a top priority since I came to Congress.
        This bill originally came out of the frustration and
    obstacles that tribes have faced when it comes to agency
    actions that affect tribes. It came out of conversations and
    meetings I had with tribal leaders over the years, where I
    heard of the issues that arise between tribes and the Federal
    Government when tribes are not respected as the sovereign
    nations that they are.
        Congress has never established standards for the Federal
    Government to follow when it takes actions that affect tribal
    communities, despite the fact that this is part of our trust
    responsibility. As the Chairman stated, the current lack of a
    unified framework has a myriad of consultation procedures, each
    different from agency to agency, and the process is even more
    cumbersome when multiple agencies are involved. And much too
    often, Federal agencies have already decided on a course of
    action and then consult with tribes by simply notifying them of
    that agency decision.
        Much of the confusion and conflict between the Federal
    Government and Indian tribes can be traced back to a lack of
    clear guidelines for meaningful consultation. The legislation
    sets forth detailed procedures for the timing, format,
    implementation, and documentation of executive agency
    consultation with tribes.
        It also protects sensitive tribal information, such as the
    location of sacred sites and other details of cultural and
    religious practices, and instructs agencies to recognize tribal
    sovereignty and minimize agency involvement in tribal affairs.
        Finally, it provides judicial recourse for tribes when
    Federal agencies fail to fulfill their consultation obligation.
    Promoting meaningful government-to-government consultation will
    create long-lasting efficiencies, reduce project delays, help
    avoid legal battles, and help fulfill the legal obligations of
    the Federal Government by ensuring tribal nations have a voice
    at the table.
        There is a reason this is a discussion draft at this time.
    I want to hear from the experts on the issue and Indian Country
    on the best way to implement this proposal. As I have said
    before, the ideas for Indian Country come from Indian Country,
    and as such, I look forward to a good discussion on the
    legislation, to hear the thoughts and ideas from our witnesses
    and others.
        I want to thank you, Mr. Chairman, for bringing this item
    up, and I yield back the remainder of my time.

        [The prepared statement of Mr. Grijalva follows:]
     Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
                               Natural Resources
        Thank you, Mr. Chairman.
        The goals of my bill are simple and straightforward--effective,
    meaningful tribal consultation as a matter of law. This has been one of
    my top priorities since I came to Congress.
        This bill originally came out of the frustration and obstacles that
    tribes have faced when it comes to agency actions that affect tribes.
    It came out of the conversations I had with tribal leaders over the
    years, where I heard of the issues that arise between tribes and the
    Federal Government when tribes are not respected as the sovereign
    nations they are.
        Congress has never established standards for the Federal Government
    to follow when it takes actions that affect tribal communities, despite
    the fact this is part of our trust responsibility.
        As the Chairman stated, the current lack of a unified framework has
    in a myriad of consultation procedures--each different from agency to
    agency, and the process is even more cumbersome when multiple agencies
    are involved. And much too often, Federal agencies have already decided
    on a course of action and then ``consult'' with tribes by simply
    notifying them of the agency decision.
        Much of the confusion and conflict between the Federal Government
    and Indian tribes can be traced back to a lack of clear guidelines for
    meaningful consultation. The legislation sets forth detailed procedures
    for the timing, format, implementation, and documentation of executive
    agency consultation with tribes.
        It also protects sensitive tribal information, such as the location
    of sacred sites and other details of cultural and religious practices,
    and instructs agencies to recognize tribal sovereignty and minimize
    agency involvement in tribal affairs.
        Finally, it provides judicial recourse for tribes when Federal
    agencies fail to fulfill their consultation obligation. Promoting
    meaningful government-to-government consultation will create long-
    lasting efficiencies, reduce project delays, help avoid legal battles,
    and help fulfill the legal obligations of the Federal Government by
    ensuring tribal nations have a voice at the table.
        There is a reason this is a discussion draft at this time. I want
    to hear from experts on the issue and in Indian Country on the best way
    to implement this proposal. As I have said before--the best ideas for
    Indian Country come from Indian Country. As such, I look forward to a
    robust discussion on the bill and to hear the thoughts and ideas from
    our witnesses.

        Thank you, Mr. Chairman, and I yield back.

                                     ______

        Mr. Gallego. Thank you, Mr. Chairman. Thank you, gentlemen,
    for your testimony. Mr. Cole, Mr. Keating, you are welcome to
    join us on the dais and ask questions of the witnesses, but I
    know you have a busy schedule, so we understand if you must
    leave us.
        Will the next panel please take your seats? Our first
    witness for this panel is the Honorable Jessie Little Doe
    Baird, Vice-Chairwoman of the Mashpee Wampanoag Tribe. Next is
    Mr. Kevin Washburn, Dean and Professor of Law at the University
    of Iowa and former Assistant Secretary for Indian Affairs at
    the U.S. Department of the Interior for the Obama
    administration. Then we have Ms. Colette Routel, Director of
    the Indian Law Program and Professor of Law at the Mitchell
    Hamline School of Law. And finally, we have Ms. Claire
    Richards, Executive Counsel to the Governor of Rhode Island.
        Let me remind the witnesses that under our Committee Rules,
    they must limit their oral statements to 5 minutes, that their
    entire statement will appear in the hearing record. When you
    begin, the lights on the witness table will turn green. After 4
    minutes, the yellow light will come on. Your time will have
    expired when the red light comes on, and I will ask you to
    please complete your statement. I will also allow the entire
    panel to testify before we start questioning the witnesses.
        The Chair now recognizes the Honorable Jessie Little Doe
    Baird to testify.

      STATEMENT OF HON. JESSIE LITTLE DOE BAIRD, VICE CHAIRWOMAN,
            MASHPEE WAMPANOAG TRIBE, MASHPEE, MASSACHUSETTS

        Ms. Baird. Good afternoon, Chairman Gallego, Ranking Member
    Cook, and distinguished members of the Subcommittee. Greetings
    and thanks also to our great champions, Representatives Bill
    Keating and Joe Kennedy.
        [Speaking native language.] My name is Jessie Little Doe
    Baird. I am from the Mashpee Wampanoag Nation and I am the Vice
    Chairwoman for the Mashpee Wampanoag Tribe. I hold a Master of
    Science in Linguistics from MIT and I am also a 2010 MacArthur
    Genius Fellow. I come before you today on behalf of the Mashpee
    Wampanoag Tribe. My tribe is facing the unthinkable: the dis-
    establishment of our reservation, the collapse of our
    government, and the loss of many of our public services.
    Congress has the power to prevent this with the bipartisan
    Mashpee Wampanoag Reservation Reaffirmation Act. Thank you so
    much for holding this hearing today.
        Until 2015, we were the only federally acknowledged tribe
    in New England without Federal trust lands of our own. All
    others have individual Acts of Congress that provide them with
    reservation lands. In contrast, Mashpee had to ask the
    Secretary of the Interior to take land into trust for us under
    the general authority Congress gave him under the Indian
    Reorganization Act.
        In 2015, with the strong support of the Commonwealth of
    Massachusetts, the city of Taunton, and the town of Mashpee,
    the Interior took land in trust for the tribe and proclaimed it
    as our reservation. However, rather than defending its original
    decision and litigation challenging it, in September 2018, the
    Interior, instead, issued a new decision based on a different
    legal theory that has called into question whether the tribe is
    eligible for the IRA at all. This creates the very real
    possibility that our land will be taken out of trust altogether
    and our reservation dis-established, something that has not
    happened since the Termination Era.
        The threat to our reservation status has had devastating
    consequences for my people. Without congressional action
    confirming that the IRA applies to Mashpee, not only will we
    lose our current reservation, we will never have any
    reservation. This uncertain status of our reservation has
    forced us to borrow thousands of dollars every day to keep
    basic government functions running.
        We have been forced to lay off 40 percent of our work
    force, and tribal unemployment is on the rise. The tribes had
    to shut down or severely scale back vital government programs.
    The tribe had to cut its police force by two-thirds and has
    drastically reduced tribal Court staff. We already have a
    severe housing shortage, and 43 tribal homes under construction
    right now have been jeopardized by the uncertain status of our
    reservation. We have lost our Federal funding for natural
    resource protection, costing the tribe an estimated $1.2
    million already. We have had to shut down our critically needed
    addiction treatment service programs at a time when Wampanoag
    people are 400 times more likely to die of an opioid overdose
    than non-Wampanoag people in our region. Our internationally
    recognized Wampanoag language immersion school, Mukayuhsak
    Weekuw, is situated on the reservation. If we lose the
    reservation status, we lose that school status. Our tribe
    suffers from having only a 51 percent high school graduation
    rate. Our language immersion school is vital to increasing our
    citizens' graduation rate and reducing substance abuse and
    suicide rates.
        We are not asking Congress to do something it has not
    already done before. In the 113th Congress, Congress passed the
    Gun Lake Trust Land Reaffirmation Act which reaffirmed a prior
    trust acquisition for that tribe. Congress also enacted
    legislation for the Virginia tribes that expressly made the IRA
    applicable to them, just like the Mashpee Reservation
    Reaffirmation Act would do for us.
        H.R. 312 is supported by the town of Mashpee, the city of
    Taunton, and our state government. It also has wide support
    from Indian Country, including the National Congress of
    American Indians, and major regional pantribal organizations as
    well as dozens of individual tribes. It also has widespread
    support from our local Chambers of Commerce and the Mayflower
    Society.
        We are aware that the state of Rhode Island opposes our
    legislation. The immediate damage that Carcieri v. Salazar did
    to the great Nation of the Narragansett Tribe, our sisters and
    neighbors, in the first instance, and the broader damage that
    case inadvertently has inflicted on the rest of Indian Country
    in these last 10 years has been terrible. Now the state of
    Rhode Island seeks to reach across the state line into
    Massachusetts to crush the hopes and dreams of my nation.
        Respectfully, we request that Rhode Island consider the
    gravity of its behavior and reconsider its position. We are
    grateful that the Committee is considering H.R. 375, the Clean
    Carcieri Fix bill. We strongly support this legislation and we
    thank sponsors Representative Cole and Representative Betty
    McCollum, but with great respect the impact of the Carcieri
    decision on our tribe is now immediate. Finally, since time
    immemorial, the Mashpee Wampanoag and the land have been
    inseparable. We have been on the land where Creator placed us,
    and this is true today as it was 400 years ago.
        Mr. Gallego. Vice Chairman, please wrap up.
        Ms. Baird. I'm happy to answer any questions you may have.

        [The prepared statement of Ms. Baird follows:]
         Prepared Statement of the Hon. Jessie Little Doe Baird, Vice
              Chairwoman, The Mashpee Wampanoag Tribe on H.R. 312
                                  introduction
        Good afternoon, Chairman Gallego, Ranking Member Cook, and
    distinguished members of the Subcommittee. My name is Jessie Little Doe
    Baird and I am the Vice Chairwoman of the Mashpee Wampanoag Tribe. I
    also bring greetings from our Chairman, Cedric Cromwell. Our Tribe is
    suffering from the assault on our reservation and on our very status as
    Indians. For this reason we urge swift passage of the bipartisan bill
    H.R. 312, the ``Mashpee Wampanoag Tribe Reservation Reaffirmation
    Act.'' The damage done to our Tribe during the years in which the
    status of our reservation has been thrown into doubt is beginning to
    reach catastrophic levels. Accordingly, we urge Congress to treat
    Mashpee fairly, and to act with all due haste to protect our
    reservation from further assault.
        Joining us in urging swift passage are the city of Taunton, the
    Town of Mashpee, Massachusetts State Representative Shauna O'Connell
    (R-Taunton), Massachusetts State Representative David Vieira (R-
    Mashpee), Massachusetts State Senator Nick Collins (D-Suffolk),
    Massachusetts House Republican Leader Brad Jones (Middlesex), and
    Massachusetts Senate Republican Leader Bruce Tarr (Gloucester), the
    Mayflower Society, the Mashpee Chamber of Commerce, the Taunton Chamber
    of Commerce, the Southeastern Massachusetts Building Trades Council,
    and Dimeo Construction Company.
        Also joining us in urging passage of the legislation are the
    National Congress of American Indians, the National Indian Gaming
    Association, the United South and Eastern Tribes, the Apache Alliance,
    Rocky Mountain Tribal Leaders Council, Affiliated Tribes of Northwest
    Indians, the Midwest Alliance of Sovereign Tribes, the Akiak Native
    Community, the Tohono O'odham Nation, the Pascua Yaqui Tribe, the San
    Carlos Apache Tribe, the Tonto Apache Tribe, the Hualapai Tribe, the
    Mechoopda Indian Tribe, the Big Valley Band of Pomo Indians, the Sycuan
    Band of the Kumeyaay Nation, the Guidiville Indian Rancheria, the Ione
    Band of Miwok Indians, the Mashantucket Pequot Tribe, the Mohegan
    Tribe, the Nez Perce Tribe, the Jena Band of Choctaw Indians, the Grand
    Traverse Band of Ottawa and Chippewa Indians, Lac Vieux Desert Band of
    Lake Superior Chippewa, Chippewa Cree Tribe of the Rocky Boy's
    Reservation, the Shinnecock Indian Nation, the Standing Rock Sioux
    Tribe, the Ft. Sill Apache Tribe, the Otoe Missouri Tribe of Indians,
    the Kaw Nation, the Narragansett Indian Tribe, the Yankton Sioux Tribe,
    the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe, the Ute
    Indian Tribe, the Suquamish Tribe, the Stockbridge-Munsee Band of
    Mohican Indians, the Oneida Nation, the St. Croix Tribe of Chippewa
    Indians, the Native American Rights Fund, the Native American Finance
    Officers Association.
        Since time immemorial, the Mashpee Wampanoag and the land upon
    which we were placed by Creator have been inseparable. We are one and
    the same. This fact is no less true today than it was some 400 years
    ago when the Wampanoag granted Indian land title to the Pilgrims--the
    land they used to form Plymouth Colony. Yet by the time our Federal
    recognition was restored to us in 2007, we were a landless tribe with
    no Federal reservation. This is in part because we are the only
    federally recognized tribe in New England for which Congress has not
    enacted legislation providing for a federally-protected reservation.
    For this reason, the Tribe had to rely on the general authority to
    acquire land in trust and proclaim reservations that Congress gave to
    the Secretary of the Interior in the Indian Reorganization Act (IRA).
    Through enactment of H.R. 312 Congress would finally act for Mashpee
    too, placing us, finally, on an equal footing with other federally
    recognized tribes.
      overview of ``the mashpee wampanoag tribe reservation reaffirmation
                                act'' (h.r. 312)
        The purpose of the Mashpee Wampanoag Reservation Reaffirmation Act
    is to reaffirm the status of the Tribe's reservation and ensure that
    the Tribe will not be treated as some kind of second class tribe that
    has a lesser status under the IRA than other federally recognized
    tribes. This is a bipartisan bill with the singular, straightforward
    purpose of protecting our reservation.
        The language of the bill tracks language from two other tribal
    bills that already have been enacted by Congress, the Gun Lake
    Restoration Act (S. 1603, passed in the 113th Congress) and the Indian
    Tribes of Virginia Recognition Act (H.R. 984, passed in the 115th
    Congress). Subsection (a) tracks language from the Gun Lake statute,
    and it confirms the status of the Tribe's reservation. Subsection (b)
    also tracks language from the Gun Lake legislation, and it serves put
    an end to the costly, painful litigation plaguing the Tribe regarding
    the status of its reservation. Finally, subsection (c) tracks language
    from the Virginia Tribes recognition statute, and makes clear that the
    Tribe will be treated equally with other federally recognized tribes
    under the IRA.
        Just 6 months ago in the 115th Congress, this Subcommittee held a
    hearing on the predecessor bill (H.R. 5244). There, the bill received
    positive feedback and bipartisan support. At that hearing, the
    Department of the Interior raised no objections to the bill in its
    written testimony, and in fact committed to working with the
    Subcommittee on moving the bill forward. The only difference between
    H.R. 5244 and H.R. 312 is that some additional language requested by
    the Town of Mashpee and agreed to by the Tribe has been added to the
    bill to acknowledge the existence of a now long-standing
    intergovernmental agreement between the Town and the Tribe that is also
    referenced in the Tribe's Record of Decision.
        H.R. 312 does not provide any new or special rights to Mashpee.
    This bill merely asks Congress to exercise its plenary authority over
    Indian affairs to ensure that the Tribe will be treated the same as
    other federally recognized tribes by protecting the Tribe's existing
    reservation. A tribal land base is crucial for the exercise of tribal
    sovereignty, and for the protection and continuation of tribal culture,
    and represents the foundation for tribal economic development. Like
    other federally recognized tribes, we have the right to exercise our
    tribal sovereignty within our reservation. Preservation of our
    reservation allows our tribal government provide services and
    protection to our citizens through tribally operated and funded
    programs. Having reservation land where we can generate tribal revenue
    increases our self-sufficiency and decreases our dependence on Federal
    funding and grants.
     the uncertain status of mashpee's reservation is causing catastrophic
                   harm to the tribe and individual citizens
        As a result of the legally uncertain status of our reservation,
    Mashpee has been forced to borrow thousands of dollars every day to
    keep basic government functions running. The uncertain trust status of
    Mashpee's reservation is causing our tribal government to move ever
    closer to shutting down. Mashpee has been forced to lay off 41 percent
    of its work force, the overwhelming majority comprised of Tribal
    citizens, and Tribal Council members are performing their governmental
    duties without pay. Tribal unemployment is on the rise. The Tribe has
    been forced to shut down or severely scale back many vital government
    programs.
        For example, the Tribe essentially has had to dissolve its police
    force with the exception of one patrol officer and we have had to
    reduce tribal court staff. Presently, we have 43 homes under
    construction on our reservation lands that will be lost if our
    reservation goes out trust--this will be devastating given our severe
    housing shortage. We have also faced the loss of Federal funding that
    allows us to partner with the Town of Mashpee to our shared water ways
    and forests. This funding loss has cost the Tribe an estimated $1.2
    million to carry out our natural resources development initiatives and
    programs in conjunction with the Town of Mashpee. Particularly painful,
    we have had to shut down our critically needed addiction treatment
    services programs at a time when Wampanoag people are 400 times more
    likely to die of an opioid overdose than non-Wampanoag people.
        Our nationally recognized Wampanoag language immersion school
    serves preschool and school aged children with a planned expansion to
    fourth grade. Because this school is situated on reservation lands, the
    removal of trust status while not only disrupt the curriculum but also
    the children that have been attending since the age of four. Presently,
    the Tribe suffers from having only a 51 percent high school graduation
    rate. Our language immersion school is vital to increasing our
    citizens' graduation rate and reducing substance abuse and suicide
    rates. These are only a few examples of the desperately needed tribal
    government programs that Mashpee has been forced to drastically scale
    back or completely shut down.
        Finally, if the Department acts to take Mashpee's reservation out
    of the trust, not only will Mashpee lose its jurisdiction over the land
    and have to further reduce tribal programs, Mashpee will also likely
    lose the land itself as a result of not being able to pay state taxes
    on the 321 acres.
       enactment of h.r. 312 will provide critical economic development
          opportunities to southeastern massachusetts and rhode island
        The city of Taunton and Town of Mashpee both strongly support H.R.
    312. Both have submitted letters and testimony in support of H.R. 312
    and its predecessor bill H.R. 5244. We have entered into
    intergovernmental agreements with both governments. Our communities and
    our futures are intertwined. In our intergovernmental agreements we
    have come together both protect certain areas from development, and to
    foster mutually beneficial economic growth in other areas. For example,
    if the status of our reservation is confirmed through enactment of H.R.
    312, we will be able to use our reservation to bring over 7,000 jobs to
    the area (including to the state of Rhode Island). The Tribe has
    committed to $30 million in upgrades to the Taunton water system and
    roadways, $10 million per year to local first responders and Taunton
    city services, and $65 million per year to the state for broader
    community development initiatives that will benefit the entire state.
    Once implemented, these commitments will represent the single largest
    urban renewal effort in Southeastern Massachusetts in a generation. If
    our reservation is disestablished, we will not be able to honor these
    commitments.
                  arguments made by the state of rhode island
        The state of Rhode Island, in a letter from Governor Gina Raimondo,
    argues that the Mashpee Reservation Reaffirmation Act ``undercuts'' the
    plain language of the Indian Reorganization Act, although the Governor
    fails to explain how this is true or identify the part of the statute
    to which she refers. She also insists that the Act ``undercuts'' the
    Supreme Court's decision in Carcieri v. Salazar. Respectfully, United
    States Constitution unequivocally endows the U.S. Congress with plenary
    authority over all matters relating to Indian Affairs. If Congress
    deems it appropriate to save the Mashpee Indian Tribe's reservation and
    to stop this senseless, soul-crushing litigation over whether Congress
    did or did not mean to include Mashpee among the tribes that should
    benefit from the Indian Reorganization Act of 1934, it acts well within
    its constitutional authority. The idea that in enacting the IRA
    Congress relinquished its own authority to acquire land for Indians or
    to determine which Indian tribes it wishes to make eligible for the IRA
    is legally incorrect.
        Not only is acquiring land in trust for Mashpee not contrary to the
    plain language of the IRA, but it is entirely consistent with the
    framers' intention that the IRA would benefit some tribes, like
    Mashpee, that had been forced into landlessness by centuries of anti-
    Indian Federal policies which stripped tribes of their lands. See,
    e.g., S. Rep. No. 1080, 73d Cong., 2d Sess., at 1 (1934) (declaring
    that one of the ``purposes of this bill'' was to ``provide for the
    acquisition, through purchase, of land for Indians, now landless, who
    are anxious and fitted to make a living on such land''); H.R. Rep. No.
    1804, 73d Cong., 2d Sess., at 6 (1934) (noting that the IRA would help
    to ``make many of the now pauperized, landless Indians self
    supporting'').
        What the Governor does not say in her letter is that the state of
    Rhode Island has acknowledged in a market study commissioned by the
    Rhode Island Department of Revenue that ``a substantial portion of
    Rhode Island gambling revenues are contributed by Massachusetts
    residents.'' Christiansen Capital Advisors LLC, Rhode Island Gaming and
    State Revenue Forecast, Oct. 31, 2017, at 19. These commercial casinos
    pay 60 percent of their revenue to the state and are the third largest
    source of Rhode Island's revenue. See American Gaming Association,
    State of States 2018: AGA Survey of the Commercial Casino Industry, at
    103; Katherine Gregg, Twin River owners, R.I. pols join chorus against
    Taunton tribal casino bill, The Providence Journal, Sep. 5, 2018. The
    state's interest in whether Mashpee's reservation is reaffirmed is not
    about jurisdiction or checker-boarding--the state's interest is in
    protecting the revenue stream it is receiving from Massachusetts
    residents. We value our neighbors in Rhode Island and we would like to
    have a good working relationship with them, just as we do with our
    local governments. But we would be remiss in not pointing out the
    immediate damage that Carcieri v. Salazar did to the Narragansett Tribe
    in the first instance, and the broader damage that case inadvertently
    has inflicted on the rest of Indian Country in these last 10 years. Now
    the state of Rhode Island seeks to reach across the state line into
    Massachusetts to crush the hopes and dreams of my Tribe. Respectfully,
    we request that Rhode Island consider the gravity of its actions and
    reconsider its position.
                                   conclusion
        No other tribe in the United States currently faces the very real
    threat of having its reservation disestablished over a legal
    technicality. H.R. 312 is an emergency measure by which Congress can
    act to resolve this otherwise meaningless legal technicality to provide
    legal certainty not just to the Tribe, but also to our surrounding
    communities. We ask Congress to protect our inherent right to govern
    ourselves as the sovereign that was here long before Europeans arrived;
    the sovereign that granted lands to the first settlers; the sovereign
    that is still here taking care of our Mashpee Nation today.
        With respect and gratitude, I thank you for your time today. I am
    happy to answer any questions you may have.

                                     ______

        Mr. Gallego. Perfect. Thank you, Vice Chairwoman. The Chair
    now recognizes Mr. Kevin Washburn to testify.

     STATEMENT OF KEVIN WASHBURN, PROFESSOR OF LAW, UNIVERSITY OF
                  IOWA COLLEGE OF LAW, IOWA CITY, IOWA

        Mr. Washburn. Chairman, Ranking Member, Chairman Grijalva,
    Ms. Haaland, who represents my former home, it is good to see
    you, and former Chairman Young, I have missed you these past
    few years.
        [Laughter.]
        Mr. Gallego. OK, with objection, I am ruling that out of
    order.
        [Laughter.]
        Mr. Washburn. I would like to also thank Tom Cole, my
    cousin from the Chickasaw Nation, and Betty McCollum. I would
    first like to talk about H.R. 375, that is bipartisan
    legislation that both of them have pushed for quite a while and
    it would be great to get this done. I won't repeat many of the
    things that Tom Cole has already said, and you have my written
    testimony, but I just would like to make a couple of points
    about H.R. 375, the Carcieri fix bill, and that is this: No
    Member of Congress and no Federal policy maker would have
    designed a system that has two classes of tribes for land into
    trust. If we started from scratch, that is not what we would
    do; we would treat tribes the same.
        And, indeed, in 1994, Congress passed legislation demanding
    that tribes be treated the same for all purposes under the IRA,
    the Indian Reorganization Act. So, no one would have come up
    with this system from scratch and we have been living with it
    because of an erroneous Supreme Court decision that, frankly,
    was not well thought out.
        The question really is, should tribes recognized since 1934
    be able to have housing? Should they be able to have police
    stations and fire stations and lands for agriculture? Should
    they be able to have economic development and infrastructure?
    And the answers to all those questions are, of course, they
    should.
        During the Obama administration, the administration, I
    think, accepted something like more than 2,000 acres, or
    parcels of land in trust encompassing well over 500,000 acres,
    and that is because those tribes needed that land and that was
    really important to the Obama administration to try to make
    that happen.
        Perhaps the best of H.R. 375 is that it would reduce a lot
    of unnecessary litigation and a lot of bureaucratic resources
    that are being wasted. I am dean of a law school, I am all for
    full-employment acts for lawyers, but that is really what H.R.
    375 is and, frankly, there is plenty of work for lawyers in
    Indian Country without having to do so much work to try to meet
    the requirements of Carcieri. I think that we have a lot more
    better use of work by the hardworking Indian lawyers in Indian
    Country than to try to keep dealing with this issue, and you
    guys could correct that real easily by passing this bill.
        Since the 1990s, there has been a requirement that each
    year the Federal Government publish the list of tribes that are
    recognized. It would have been nice if we had had that in 1934.
    That would have saved a lot of this work for tribes. But the
    fact is there is no tribe that exists today that did not exist
    in 1934. We don't create tribes out of whole cloth in this
    country. We spend a lot of time working on the reformation of
    that tribal recognition process, and those tribes have always
    existed and so they deserve to have land if they have existed.
    So, I would respectfully urge the Committee to try to move H.R.
    375 through the House.
        Let me move briefly to the RESPECT Act, Chairman Grijalva's
    bill. I strongly believe in the need for consultation as a
    matter of law, as he described it. We have had at least two
    decades of careful policy making around tribal consultation. It
    has become a strong Federal norm that tribes should be
    consulted on the matters that affect them, and it really has
    become part of the way we do business in the Federal Government
    with regard to Indian Country. It is a norm that does not get
    applied evenly across administrations, however.
        I actually in some ways don't like the RESPECT Act because
    it puts a lot of requirements in place before the Federal
    Government can act, and I guess I am little libertarian, I
    don't like putting a whole lot of additional requirements on
    the Federal Government because it will also keep them from
    doing good things.
        That said, I think what we have seen is that we need
    something like the RESPECT Act, and I am grateful for Chairman
    Grijalva for proposing it. There are a lot of good things that
    it does. One is that it forces consultation. Since it forces
    consultation, that means that it also wraps in independent
    Federal agencies, such as the Federal Energy Regulatory
    Commission and the National Labor Relations Board and those
    sort of agencies. I think that is important because those
    agencies have not always been good about consulting with
    tribes. And a President's Executive Order can't reach those
    agencies in the same way.
        Why don't I stop there? My time is about up, but I will be
    happy to answer questions in a little while if need be.

        [The prepared statement of Mr. Washburn follows:]
       Prepared Statement of Dean Kevin K. Washburn, University of Iowa
               College of Law\1\ on H.R. 375 and the RESPECT Act
    ---------------------------------------------------------------------------
        \1\ For identification purposes only. The testimony presented here
    is made in an individual capacity and it not made on behalf of the
    University of Iowa or any other institution.
    ---------------------------------------------------------------------------
        Chairman, Ranking Member, and members of the Committee. Thank you
    for asking me to appear before you to testify about two bills in the
    Committee's jurisdiction, H.R. 375, and the RESPECT Act.

                             Testimony on H.R. 375

        I appeared before House or Senate committees in the 112th, 113th
    and 114th Congresses, on behalf of the Obama administration, to seek a
    clean Carcieri-fix. It is an honor to appear before a Committee of the
    116th Congress in an individual capacity but with the same goal.
    Background: The Need for a Carcieri Fix

        One of the greatest long-standing injustices in the history of the
    United States is the theft of land from Indian tribes during the better
    part of the first two centuries of this Nation's existence. The loss of
    native land reflects a wide gulf between our claim to be a just nation
    and the truth buried in our Nation's history. Since 1787, however, this
    country has been committed to improving and has sought earnestly, I
    believe, to become a ``more perfect union.'' It is in that spirit of
    idealism that I appear before you today.
        In the decades prior to the enactment of the Indian Reorganization
    Act (IRA) during the ``Indian New Deal'' in 1934, tribes lost more than
    90 million acres of land in the continental United States. It was
    recognition of the scope of this tragic loss that caused Congress to
    take action. In the IRA, Congress gave the executive branch the
    authority to take land into trust and thereby restore land to tribes.
        The land into trust process unfolded very gradually over the
    ensuing decades. It is a slow and cumbersome bureaucratic process. In
    most instances in which land is taken into trust for tribes, the tribe
    has re-purchased land that previously were taken, often illegally. One
    might think that requiring tribes to repurchase lands that had once
    been stolen from them would only compound the injustice, but tribes are
    grateful to have the land restored as sovereign territory even if they
    must use their own limited resources to accomplish it.
        To supercharge the slow process of finally addressing the long-
    standing injustice of the theft of Indian lands, President Barack Obama
    made restoration of tribal land a central priority of his
    administration. By the time I joined the administration near the end of
    Obama's first term in 2012, the Obama administration had already taken
    approximately 180,000 acres of land into trust for tribes.
        By the time President Obama left office in 2017, approximately
    362,000 acres more had been taken into trust across Indian Country, for
    a total of 542,000 acres of land acquired during the Obama
    administration. In addition, more than 2.3 million cumulative acres of
    trust land have been restored to tribes through the Cobell settlement's
    fractionated interest buy-back program, an initiative that continues
    today. These efforts constitute the most successful efforts to reverse
    tribal land loss in American history.
        The Obama administration also took two other key actions related to
    ``land into trust.'' One was the so-called ``Patchak Patch,'' which
    eliminated a 30-day waiting period for implementation of land into
    trust decisions. Under the Patchak Patch, once the Department made a
    decision to take land into trust, usually after months or years of
    processing an application, the land would go into trust immediately.
    Though an opponent could still challenge the decision in administrative
    or judicial litigation, the land would be in trust pending the outcome
    of the litigation, which often stretches for years. The Patchak Patch
    thus prevented the strategic and abusive use of litigation to delay the
    implementation of a land into trust decision that would benefit a
    tribe. The current administration has indicated that it is interested
    in revisiting this rule. The other key Obama action in the area of land
    into trust was the removal of a long-standing Federal regulatory
    prohibition on taking land into trust for tribes in Alaska. The current
    administration has indicated that it is also interested in revisiting
    the Alaska rule.
        The aggressive restoration of land to tribes during the Obama
    administration went a long way toward laying the foundation for a
    better government-to-government relationship between the United States
    and tribal nations.
        The Supreme Court's 2009 decision in Carcieri v. Salazar was an
    early setback. The Carcieri opinion ruled unlawful the Secretary of the
    Interior's effort to take 31 acres of land into trust for the
    Narragansett Tribe of Rhode Island for a housing project.
        Issued just 1 month after President Obama's inauguration, Carcieri
    was erroneously decided and has had pernicious effects in Indian
    Country. A significant problem with Carcieri is that it misinterpreted
    the Indian Reorganization Act to make an arbitrary and unwarranted
    distinction between tribes. As a result of the decision, some tribes
    are unable to petition the Federal Government to have land restored to
    them through the land into trust process. The decision was a
    misinterpretation of law and there is no rational policy basis for
    treating some tribes differently.
        The Carcieri decision was troubling in part because it failed to
    respect congressionally defined norms of Federal Indian policy which
    had been expressed just a few years earlier. Indeed, in 1994, Congress
    had expressed a desire that the IRA be applied in the same manner to
    all tribes. At that time, Congress clarified that no Federal agency
    should make any determination under the IRA ``with respect to a
    federally recognized Indian tribe that classifies, enhances, or
    diminishes the privileges and immunities available to the Indian tribe
    relative to other federally recognized tribes by virtue of their status
    as Indian tribes.'' P.L. 103-263 (1994). The Secretary's efforts for
    the Narragansett, however, were entirely consistent with the
    congressional direction to treat tribes similarly under the IRA. It is
    for this reason that many believe Carcieri was out of step with Federal
    policy and wrongly decided.
        When Carcieri was issued, President Obama realized that it had the
    potential to derail his important policy goal of restoring land to
    Indian tribes. President Obama personally called on Congress to enact a
    Carcieri-fix in November 2013 and directed his staff before and after
    that time to seek a Carcieri-fix.
        Because of the high priority of restoring lands for all tribes, the
    Obama administration also developed a legal strategy to limit the
    Carcieri decision to its facts and to use other tools in the same
    statute. This strategy was successful for at least one tribe, but it
    has failed for at least one other.
        A central flaw in Carcieri's reasoning is this: every tribe that is
    federally recognized today necessarily existed in when the IRA was
    enacted in 1934. The reason some tribes were not then formally
    recognized in 1934 is obvious, at least from a historical perspective.
    The massacres at Wounded Knee (1890) and Sand Creek (1864) were still
    fresh in oral histories and the deeply scarred memories of native
    people. Many Indian communities remained in hiding and working hard to
    avoid attention from the Federal Government.
        In the time since 1934, the United States has become somewhat safer
    for native communities, and tribes eventually started coming out of the
    shadows. Congress has extended Federal recognition to dozens of tribes
    since 1934 and the executive branch has recognized a few more. Efforts
    were made in Congress and the executive branch to treat tribes on an
    equal basis, except where Congress, treaties or other laws required
    otherwise.
        This is why Carcieri was unwelcome to Federal Indian policy makers.
    It divided tribes into ``haves'' and ``have nots.'' Because the land
    into trust process is slow and bureaucratic, the full impact of
    Carcieri has not become known yet. For numerous tribes recognized since
    1934, however, Carcieri feels like a ticking time bomb. According to
    the late Professor William Rice, writing shortly after the opinion was
    issued, Carcieri ``will create a cloud upon the trust title of every
    tribe first recognized by Congress or the executive branch after 1934,
    every tribe terminated in the termination era that has since been
    restored, and every tribe that adopted the IRA or OIWA and changed its
    name or organizational structure since 1934. It will also result in
    incessant litigation to determine which of the over 500 tribes fall
    within its terms and prohibit future trust acquisitions for such tribes
    as are finally found to be within its net.'' Wm. Rice, The Indian
    Reorganization Act, the Declaration on the Rights of Indigenous People,
    and a Proposed Carcieri ``Fix,'' 45 Idaho L. Rev. 575, 594 (2009).
        In sum, Carcieri has the potential to spawn endless litigation
    about past land acquisitions and block future acquisitions. Carcieri
    remains a serious problem that draws an arbitrary and unwelcome line
    though Indian Country.
        The Carcieri decision has been on the books now for 10 years. It is
    unlikely that it will be corrected by the Supreme Court. I would
    respectfully urge Congress to explain that it meant what it said in
    1994 and amend the IRA to provide absolute clarity that the Secretary
    of the Interior has authority to restore land for all federally
    recognized tribal nations in the United States.
    Views on H.R. 375

        I wish to begin by expressing my appreciation to Representatives
    Tom Cole and Betty McCollum for continuing to press in a bipartisan way
    for this important legislation. Representatives Cole and McCollum have
    worked together--across the aisle--to resolve this important issue for
    several years. The passage of H.R. 375 has the potential to be a
    wonderful example of bipartisanship in a divided Congress.
        I am also grateful to the Committee leadership for giving this bill
    a hearing. It is the hope of many people in Indian Country that the
    recent change in the makeup of the committees and the leadership
    positions will allow the bill to advance and address this long-standing
    injustice.
        H.R. 375 is an elegant way of addressing Carcieri v. Salazar. It is
    a model of clarity and simplicity and would fully address the problems
    highlighted above.
        H.R. 375 has three important features that are crucial to
    clarifying the IRA and remediating the harm caused by Carcieri. First,
    it strikes from the IRA the confusing term, ``now under federal
    jurisdiction,'' making it more obvious that the land into trust
    provisions have broad application to all federally recognized Indian
    tribes, no matter when they achieved Federal recognition. Second, it
    makes the amendment retroactive to the original date of enactment of
    the IRA in 1934. This insures proper authorization for all actions to
    take land into trust since that time and prevents unnecessary and
    fruitless litigation about whether authority existed at the time the
    land was taken into trust. Finally, H.R. 375 amends the definitions
    section of the IRA to make it even more clear that the Secretary of the
    Interior has authority to take lands in trust for tribal nations in
    Alaska.

                          Testimony on the RESPECT Act

        Tribal consultation has been an important part of Federal Indian
    policy throughout history and has been revitalized in recent years. I
    will first provide context for the recent developments in tribal
    consultation and then discuss the bill in this context.
    Background: Executive Order 13175 and Modern Tribal Consultation

        Activity that can be described as tribal consultation has existed
    since the first days of the American republic. Over the course of
    nearly two centuries, government-to-government relationships that began
    as arms-length treaty negotiations slowly transformed into a very
    paternalistic relationship denoted by the concept of a Federal trust
    responsibility to tribes.
        Tribal governments reawakened politically in the 1960s and 1970s
    and embraced newly revitalized efforts at tribal self-government. A new
    government-to-government relationship between the Federal Government
    and tribes began to form. By the 1990s, tribal governments had earned
    greater political salience, both within their communities and
    externally. They were becoming stronger partners for the Federal
    Government.
        In a series of orders and memoranda issued throughout his
    presidency, President Bill Clinton embraced and gradually strengthened
    the general norm of Federal consultation with tribal governments.
    Colette Routel and Jeffrey Holth, Toward Genuine Tribal Consultation,
    46 Univ. of Mich., L.L. Reform 417, 442-43 (2013). This steady
    development of policy culminated, on November 6, 2000, when Clinton
    issued Executive Order 13175. The order directed agencies to engage in
    consultation and coordination with tribes in ``the development of
    Federal policies that have tribal implications.'' 65 Fed. Reg. 67249
    (Nov. 9, 2000). E.O. 13175 was a major step forward in the government-
    to-government relationship between American Indian nations and the
    United States. Symbolically, it demonstrated Federal respect for
    tribes. Practically, it reflected common sense and good government as
    well as a more effective way of developing and implementing Federal
    policy. It has never been rescinded and to this day constitutes the
    governing executive branch statement on tribal consultation.
        A notable feature of E.O. 13175 is its breadth. It does not limit
    the consultation requirement to Federal Indian policies. It applies to
    any Federal policy with ``tribal implications.'' This presumably
    includes general Federal policies that affect tribes. As governments
    and communities in the United States, Indian tribes are, of course,
    affected by numerous general Federal policies. In other words, E.O.
    13175 requires the Federal Government to consult with tribes about
    policies even if Indian tribes and people are not the primary target of
    such policies. While it has not always been implemented as broadly as
    its terms suggest it should be, E.O. 13175 is an ambitious and positive
    vision for Federal policy making and the government-to-government
    relationship.
        In 2004, President George W. Bush issued a memorandum in which he
    noted E.O. 13175 and expressed his administration's commitment to the
    government-to-government relationship. Memorandum on Government-to-
    Government Relationship with Tribal Governments (Sept. 23, 2004). The
    memorandum expressed good intentions, but tribes felt that these
    intentions were realized only unevenly.
        Eight years after President Clinton issued E.O. 13175, President
    Barack Obama was elected. He embraced Clinton's Executive Order and
    made a robust effort to implement it by directing each Federal agency
    to develop its own individualized plan for tribal consultation.
    Presidential Memorandum on Tribal Consultation, 50 Fed. Reg. 57,881
    (Nov. 5, 2009). Prodded by Domestic Policy Council staff at the White
    House, the vast Federal bureaucracy soon began working to comply, with
    each Federal agency or office embarking on individual policy-making
    efforts. The first step was, of course, to consult with tribes. In an
    effort that was important but must have been amusing to lovers of the
    Dilbert comic strip, each agency began ``tribal consultations on tribal
    consultation.'' These efforts bore fruit with each Cabinet-level
    Department and many sub-departments ultimately issuing their own
    specific tribal consultation policies, developed organically, but
    consistent with E.O. 13175. See, for example, the Tribal Consultation
    and Coordination Policy for the U.S. Department of Commerce, 78 Fed.
    Reg. 33331 (June 4, 2013).
        Though E.O. 13175 specifically disclaimed the creation of rights
    enforceable against the executive branch in court, it began to change
    the norms inherent in the Federal government-to-government relationship
    with tribes. Indeed, a handful of courts have signaled that agency
    action may be reviewable to insure that the consultation is meaningful.
    See, e.g., Cheyenne River Sioux Tribe v. Jewell, 3:15-CV-03018, 2016 WL
    4625672 (D.S.D. Sept. 6, 2016); Wyoming v. U.S. Dept. of the Interior,
    136 F. Supp. 3d 1317, 1345-46 (D. Wyo. 2015).
        During the Obama administration, tribal leaders grew accustomed to
    annual meetings with the President and members of his cabinet and other
    agencies. In 2013, President Obama issued Executive Order 13647,
    ordering an annual White House Tribal Nations Conference. Exec. Order
    No. 13647, 3 C.F.R. 311 (2014). As a result of the Federal Government's
    more robust approach to tribal consultation, tribal governments are now
    more involved in shaping Federal policy affecting them. All of this
    tribal engagement has made Federal policy more effective.
        As tribal governments have engaged in consultation, they have
    become more competent in evaluating and affecting Federal public
    policy. They are more politically engaged and offer more astute
    suggestions. The result is a virtuous cycle: tribal governments engage;
    Federal policy improves; and tribal governments, in turn, become even
    more invested in the policy and the engagement. As a result of their
    invited involvement in the machinery of Federal policy making, tribes
    have become better Federal partners.
        A more substantive impact of this more robust government-to-
    government relationship has been a further transformation in the
    content of the Federal trust responsibility itself. Strong tribal input
    in shaping Federal policy necessarily diminishes the continuing
    paternalistic tendencies of that policy.
        The trust responsibility has quite simply come to embody much
    greater respect. Statutes continue to reflect Federal Government
    decision making and oversight of tribes, but the relationship has come
    to seem more like a collaboration between sovereigns. See Kevin K.
    Washburn, What the Future Holds: the Changing Landscape of Federal
    Indian Policy, 130 Harv. L. Rev. F. 200, 215-16 (2017).
        Moreover, as noted above, because the new norms around the
    government-to-government relationship explicitly require consultation
    with tribes on any policy matter that affects them, the norms inherent
    in the trust responsibility have begun to escape the bounds of Indian
    policy.
        A fair criticism of the executive branch's approach to tribal
    consultation is that E.O. 13175 has been implemented unevenly. Tribal
    consultation has been embraced much more enthusiastically in Democrat
    administrations than in Republican ones, in part because Democrats tend
    to develop more Federal Indian policy initiatives to serve a core
    constituency.
    The RESPECT Act in Context
        The RESPECT Act codifies a much stronger requirement for tribal
    consultation, but addresses a more narrow range of tribal interests
    than currently encompassed under E.O. 13175. The RESPECT Act addresses
    a subset of issues for which tribal governments are likely to be most
    concerned, namely Federal activities that affect tribal cultural
    resources and lands, tribal self-governance, the trust responsibility,
    and the government-to-government relationship between a tribe and an
    agency. As to those matters, however, the RESPECT Act mandates robust
    formal procedural requirements as to how and when such consultation
    must occur, including providing for planning, notice, meetings, and
    memoranda of agreement. It also contains provisions requiring
    development of a record of tribal consultation and requirements for a
    final decision on the proposed Federal action, with provision for
    notice and comment.
        A significant feature of the RESPECT Act is a provision for
    confidentiality so that an Indian nation can share information with
    Federal officials without fear that it will become public. For example,
    a tribe can disclose the location of a sacred site without fear that it
    will be disclosed in a Freedom of Information Act response. Aside from
    that provision, which makes substantive changes to Federal disclosure
    laws, the RESPECT Act is almost entirely procedural.
        The RESPECT Act changes the landscape for tribal consultation as it
    exists under E.O. 13175 in several significant ways.
        First, in contrast to E.O. 13175, the RESPECT Act is judicially
    enforceable. Due to its terminology, I read the Act to allow a tribe to
    seek review of an agency determination even before an agency action
    becomes final, as long as the tribe has exhausted administrative
    remedies. This would appear to give the Act teeth at any stage of the
    process. In that respect, the RESPECT Act is much more effective than
    E.O. 13175 in mandating tribal consultation.
        Second, the RESPECT Act creates a uniform process across Federal
    agencies. Unlike the Obama administration approach to implementation of
    E.O. 13175, which allowed each agency to develop its own consultation
    process organically and with tribal input, the RESPECT Act creates
    uniformity. Such an approach has plusses and minuses.
        A plus is that tribes and citizens will know exactly how the
    uniform process works with each Federal agency, even if they have not
    worked with that agency previously, and will not have to become
    familiar with different specialized approaches for different agencies.
    There is value in uniformity. Consider for example, the National
    Environmental Policy Act (NEPA). NEPA imposes a regime that works
    fairly uniformly across the government. Each agency implements it
    similarly. As a result, expertise is not difficult to find and a lot of
    people are familiar with it, from citizens to courts.
        A minus is that, in light of varying cultures, so-called ``one-
    size-fits-all'' approaches don't work well for tribes. Likewise, a
    ``one-size-fits-all'' approach to tribal consultation may not capture
    the needs of different agencies. The Act seems designed primarily with
    project development activities in mind, but it applies to a wider range
    of Federal activities, such as rulemaking and policy guidance. This may
    have unexpected consequences.
        Third, it will slow agency decision making and policy development.
    This also involves plusses and minuses. Tribes will likely be pleased
    with a slower process if it insures tribal consultation, but tribes too
    sometimes complain about the greater length of time required to achieve
    various policy goals, particularly those related to economic
    development on tribal lands. The RESPECT Act will likely lengthen that
    time. Consider the Department of the Interior's existing tribal
    consultation policy; it requires advance notice of at least 30 days for
    a tribal consultation. That is a modest time period and yet it
    sometimes prevented agency officials from moving as quickly as they
    would like, even when developing a policy or making a decision that
    tribes sought. The time periods in the bill will allow time for robust
    consultation and plenty of notice but, like NEPA, may force an agency
    to move more slowly than ideal in some circumstances.
        Fourth, the RESPECT Act is in some ways narrower than E.O. 13175.
    While E.O. 13175 applies to any Federal policy with ``tribal
    implications,'' which includes some policies that are beyond the
    traditional scope of Federal Indian policy, the RESPECT Act focuses
    only on the Federal activities that affect significant tribal
    interests, such as tribal cultural resources and lands, tribal self-
    governance, the trust responsibility, and the government-to-government
    relationship between a tribe and an agency. To the extent that E.O.
    13175 is overbroad from the Federal perspective, Federal agencies have
    tended to take refuge in the fact that it is not judicially
    enforceable. Agencies have tended to ignore the tribal consultation
    requirement as to some matters.
        Fifth, and on the other hand, the RESPECT Act is broader than E.O.
    13175 because it applies to independent Federal regulatory agencies.
    One of the more frustrating episodes in modern Federal Indian policy
    for tribes was the National Labor Relations Board's decision to ignore
    the Federal norms as to tribal consultation and suddenly reverse long-
    standing policy toward tribes in a punitive enforcement action. See
    Wenona Singel, Labor Relations and Tribal Self-Governance, 80 N.D. L.
    Rev. 691, 693-94 (2004). Because the RESPECT Act applies to
    ``operational activity,'' it might prevent an independent Federal
    agency from implementing such a policy change in this manner in the
    future.
        Finally, the RESPECT Act might provide some salutary benefits as it
    applies to legislative proposals. In the past, bills have been enacted
    that failed adequately to consider issues involving tribes. For
    example, in the Adam Walsh Sex Offender Registration and Notification
    Act, the drafters inadvertently failed to consider the needs of Native
    American victims and communities. See Virginia Davis & Kevin Washburn,
    Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3
    (2008). Because a lot of proposed bills are developed as part of
    administration packages, the RESPECT Act provides a mechanism for
    insuring that tribal needs are considered in certain types of proposed
    legislation.
        In a more perfect world, the norm of tribal consultation would be
    respected evenly through time and across presidential administrations.
    In such a world, a congressional mandate for more elaborate tribal
    consultation would not be necessary. In the world in which we live,
    however, the RESPECT Act is needed to insure best practices in the
    Federal-tribal government-to-government relationship. Ultimately, the
    RESPECT Act would have the effect of making tribal consultation less
    partisan than it is now. Tribes could be assured of the same robust
    commitment to consultation no matter which party controls the White
    House.
        On balance, the RESPECT Act is a positive contribution and has the
    ability to advance tribal sovereignty and would improve the
    relationship between tribes and the Federal Government.
        Thank you for inviting my views on this important legislation.

                                     ______

     Questions Submitted for the Record by Rep. Bishop to Kevin Washburn,
                       University of Iowa College of Law
        Question 1. As the Assistant Secretary--Indian Affairs, you signed
    the September 2015 Record of Decision for the Trust Acquisition and
    Reservation Proclamation for the Mashpee Tribe (``ROD''). In the ROD,
    you write ``the Tribe qualifies for the IRA's benefits under the second
    definition of `Indian.' '' (ROD, page 79). To the best of your
    knowledge, has the Department of the Interior acquired land into trust
    under the second definition of ``Indian'' under the IRA for any other
    tribe besides the Mashpee?

        Question 2. To the best of your knowledge, has the Department of
    the Interior conducted, but not necessarily made final, a Carcieri
    analysis under the second definition of ``Indian'' for any other tribe
    besides the Mashpee Tribe?

        Question 3. Why didn't the Department of the Interior use the
    ``first definition'' of Indian in the IRA in its analysis of the
    Mashpee Tribe's Carcieri status?

        Answer. I thank the Committee for its focus on these issues and for
    these important questions.
        It is the responsibility of the Secretary to seek to meet the
    purposes of the Indian Reorganization Act within the bounds of the law.
    The Indian Reorganization Act presents more than one pathway for land
    into trust. During the Obama administration, the goal was to think more
    holistically about land into trust than the Supreme Court was able to
    do in Carcieri. Because of the nature of its work, the Supreme Court
    had before it only one of the pathways for land into trust. While
    Carcieri and its necessary implications must be respected as the law of
    the land, it need not--and should not--be interpreted more broadly than
    its reasoning requires. That would imbue the Supreme Court with a
    policy-making function that it does not have and presumably does not
    wish to have.
        I concluded my service at the Department of the Interior effective
    January 1, 2016, and am sensitive to the fact that I have not been
    privy to inside discussions and strategy about the land into trust
    process since I left. Two of these questions essentially ask me for
    information that implicate the Department's attorney-client, work
    product and deliberative process privileges with regard to important
    decisions of the Department. While I understand the public interest in
    those decisions, it would be arrogant of me to undermine the
    Department's privileges when another person now holds that office.
    During my time at the Department of the Interior, the time devoted to
    land-into-trust applications increased substantially. I do note that
    the Trump administration has continued taking land into trust, for
    gaming and other purposes, so presumably it has also had to consider
    the implications of Carcieri. However, I am not intimately aware of the
    decision-making actions of the Department and thus am not competent to
    answer all of these questions.
        I would note also, that, during the Obama administration, the
    Department resisted providing a list of tribes with ``Carcieri
    problems'' because producing such a list was not in the interest of any
    potential tribe that would be included on such a list. Thus, it would
    not be consistent with the Department's role as trustee for each
    American Indian nation. Because these questions have similar
    implications, I believe, respectfully, that it is not in the best
    interest of any tribe--or for Indian Country generally--for me to
    answer these questions in the manner that they have been posed. Thank
    you again for the Committee's attention to these important issues.

                                     ______

        Mr. Gallego. Thank you, Mr. Washburn. The Chair now
    recognizes Ms. Colette Routel for her testimony.

    STATEMENT OF COLETTE ROUTEL, PROFESSOR OF LAW, MITCHELL HAMLINE
                   SCHOOL OF LAW, ST. PAUL, MINNESOTA

        Ms. Routel. Good afternoon. Thank you for allowing me to
    appear before you today to testify about H.R. 375, a bill to
    amend the Indian Reorganization Act. As you know, in Carcieri
    v. Salazar, the Supreme Court held that trust lands could only
    be acquired for tribes that were under Federal jurisdiction
    when the IRA was adopted in 1934. Because the IRA is the only
    general statute that authorized the Secretary of the Interior
    to take land into trust for Indian tribes, tribes that cannot
    make this showing face the prospect of never regaining a
    permanent homeland.
        Scholars and practitioners alike immediately decried the
    Court's extraordinarily cramped reading of the statutory text
    and predicted that the decision would wreak havoc throughout
    Indian Country by encouraging ways of litigation, stifling
    economic development, and creating dividing lines between
    tribes that Congress had sought to abolish.
        Sadly, those predictions have come true in the decade that
    has followed. Frivolous lawsuits have abounded. Local
    governments and private citizens have challenged the trust
    acquisitions of dozens of tribes that were obviously under
    Federal jurisdiction in 1934. Litigants have often used
    lawsuits to challenge land that has already been taken into
    trust.
        For example, in 2015, a tax assessor in Alabama assessed
    property taxes on land that was taken into trust 30 years
    before for the Poarch Band of Creek Indians. The tribe
    obviously won this case, but not until it had litigated it all
    the way to the 11th Circuit.
        Of course, not all Carcieri challenges are frivolous. In
    2014, the Department of the Interior issued a formal opinion
    which provides a two-part framework for determining whether an
    Indian tribe was under Federal jurisdiction in 1934. The
    problem is that finding and assembling the information
    necessary to satisfy this two-part inquiry is daunting. Federal
    records and correspondence needed to demonstrate these actions
    are scattered throughout the country in public archives and in
    private collections. And when tribes gather all of this
    documentation, they can do so only to have the rules suddenly
    shift.
        The Mashpee Wampanoag Tribe find themselves in just this
    position. In September 2018, the Department refused to reaffirm
    the status of the tribe's reservation and it did so even though
    the Mashpee submitted documentation, for example, that showed
    that a significant number of Mashpee children attended the
    Carlisle Boarding School. Mashpee members were included on
    Federal census roles and the Federal Government recognized the
    tribe's hunting, fishing, and gathering rights. This is all
    evidence that has previously been considered to be sufficient
    to withstand a Carcieri challenge.
        The consequences for Mashpee have been extraordinary. The
    tribe has broken ground on their casino and apparently owes
    more than $300 million, yet construction is indefinitely
    stalled and the tribe has no more access to capital. Without
    trust lands, the tribe does not qualify for even the most basic
    Federal programs such as food distribution programs, burial
    assistance, and adult care assistance. All of these programs
    are administered for Indians that live on or near a
    reservation, and the Federal Government now tells the Mashpee
    that they do not.
        The Mashpee are just one example of why trust lands are so
    vital. They are the only lands that are permanently held for
    the benefit of an Indian tribe. Trust lands can't be taxed;
    they can't be condemned or otherwise alienated without tribal
    or congressional authorization. Trust lands are also the only
    lands on which tribes' sovereignty has never been questioned.
    Permanency and sovereign authority are necessary components for
    a true homeland for Indian tribes and this can only be achieved
    with trust land.
        As Dean Washburn already mentioned, there is simply no
    policy justification for using 1934 as a magical date that
    limits access to such an important benefit. Moreover, it is not
    even this date of tribal acknowledgement, but rather the manner
    in which an Indian tribe became acknowledged that has proved
    crucial following Carcieri. Tribes that were recognized by
    Congress are almost always insulated from the impacts of
    Carcieri through express provisions in the recognition bills
    that allow fee-to-trust applications. It is only tribes that
    went through the office of Federal acknowledgement's grueling
    recognition process that are now faced with never receiving any
    land into trust. Many of them waited years and expended
    millions of dollars to obtain acknowledgement as a federally
    recognized tribe only to find that the benefits of that
    decision are elusory.
        I urge the members of this Committee to support H.R. 375,
    which will once again clarify that the benefits of the IRA are
    available to all federally recognized tribes. Thank you.

        [The prepared statement of Ms. Routel follows:]
     Prepared Statement of Colette Routel, Professor of Law & Director of
      the Indian Law Program, Mitchell Hamline School of Law * on H.R. 375
    ---------------------------------------------------------------------------
        * The comments expressed herein are solely those of the author as
    an individual member of the academic community; the author does not
    represent Mitchell Hamline School of Law for purposes of this
    testimony.
    ---------------------------------------------------------------------------
        Chairman Grijalva, Ranking Member Bishop, and members of the
    Committee. Thank you for allowing me to appear before you today to
    testify about H.R. 375, a bill to amend the Indian Reorganization Act.
    Background on the IRA and the Supreme Court's Decision in Carcieri v.
            Salazar
        The Indian Reorganization Act (``IRA''), 48 Stat. 984 (codified as
    amended at 25 U.S.C. Sec. 5101 et seq.), is one of the most important
    pieces of legislation directly affecting Indians. When enacted by
    Congress in June 1934, it signaled a major reversal of governmental
    policy in Indian affairs. Previously, the United States had
    aggressively attempted to eradicate tribalism and assimilate individual
    Indians into white society. The linchpin of this assimilationist policy
    was the General Allotment Act of 1887 (``GAA''), which broke up tribal
    reservations into individual 160-acre allotments, while authorizing the
    remaining ``surplus lands'' to be sold to non-Indians. As a result of
    the GAA, Indian lands were diminished from 138 million acres to just 52
    million acres in less than 50 years. By the 1930s, the Federal
    Government realized the devastating impact that this policy was having
    on Indian communities, and it decided to abruptly reverse course. As
    the principal component of the Indian New Deal, the IRA was intended to
    promote tribal self-government and ultimately restore to Indian tribes
    the management of their own affairs. See Morton v. Mancari, 417 U.S.
    535, 542 (1974) (noting that the IRA was passed to ``establish
    machinery whereby Indian tribes would be able to assume a greater
    degree of self-government, both politically and economically'').

        Land was recognized as essential to the achievement of these goals.
    Consequently, the IRA precluded allotment of future reservations. 25
    U.S.C. Sec. 5101. Unsold ``surplus'' lands could be returned to the
    tribe at the discretion of the Secretary of the Interior. 25 U.S.C.
    Sec. 5103. Importantly, the Secretary of the Interior was authorized to
    acquire new trust land for the benefit of tribes. Section 5 of the IRA
    reads as follows:

            The Secretary of the Interior is hereby authorized, in his
            discretion, to acquire through purchase, relinquishment, gift,
            exchange, or assignment, any interest in lands, water rights or
            surface rights to lands, within or without existing
            reservations, including trust or otherwise restricted
            allotments whether the allottee be living or deceased, for the
            purpose of providing land for Indians.

    IRA, Sec. 5, codified at 25 U.S.C. Sec.  5108. Section 5 of the IRA
    remains the only general statute that authorizes the Secretary of the
    Interior to take land into trust for Indian tribes.

        In 2009, the U.S. Supreme Court decided Carcieri v. Salazar, 555
    U.S. 379 (2009), a decision which disrupted 70 years of agency practice
    in acquiring trust lands for Indian tribes. The Carcieri Court held
    that Section 5 of the IRA must be read in conjunction with the Act's
    definition of ``Indian,'' which was limited, in relevant part, to
    ``persons of Indian descent who are members of any recognized Indian
    tribe now under Federal jurisdiction.'' IRA, Sec. 19. According to the
    Court, the word ``now'' unambiguously referred to the year that the IRA
    was enacted (1934), rather than the moment when the Secretary decided
    to take land into trust for the benefit of a particular tribe. Thus,
    following Carcieri, any tribe seeking the benefits of Section 5 of the
    IRA was required to establish that it was ``under Federal
    jurisdiction'' in 1934.
        Scholars and practitioners alike immediately decried the Court's
    extraordinarily cramped reading of the statutory text and noted that
    the decision would wreak havoc throughout Indian Country by encouraging
    waves of litigation, stifling economic development, and creating
    dividing lines between tribes that Congress had sought to abolish.
    Sadly, those predictions have all come true in the decade that has
    followed. H.R. 375 is necessary to right the wrongs that have flowed
    from the Court's decision in Carcieri.
    The Original Meaning of ``Under Federal Jurisdiction''
        The Supreme Court's decision in Carcieri provided very little
    guidance on the meaning of ``under Federal jurisdiction,'' even though
    Indian tribes would now need to demonstrate that they satisfied this
    concept as of 1934 in order for the Federal Government to take land
    into trust on their behalf. Today, ``under Federal jurisdiction'' may
    be considered synonymous with Federal recognition, but in 1934, Federal
    recognition of Indian tribes ``was only beginning to take shape,'' and
    it ``was not universally applied, accepted or frankly, understood.''
    William W. Quinn, Jr., Federal Acknowledgment of American Indian
    Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal
    Hist. 331, 347 (1990). The terms ``recognize'' and ``acknowledge'' were
    more often used simply in the cognitive sense, indicating that a
    particular tribe was known to the United States, and even then, no
    comprehensive list of Indian tribes acknowledged by the United States
    existed prior to 1934. Id. at 339.
        The IRA's text and legislative history did not define the phrase
    ``under Federal jurisdiction.'' This phrase was hastily added to the
    bill following a confusing colloquy in a hearing before the Senate
    Committee on Indian Affairs on May 17, 1934. To Grant to Indians Living
    under Federal Tutelage the Freedom to Organize for Purposes of Local
    Self-Government and Economic Enterprise: Hearing on S. 2755 before the
    Senate Committee on Indian Affairs, 73d Cong., 2d Sess., at 237 (May
    17, 1934) (``May 17, 1934 Hearing''). It is difficult to interpret the
    intent of any legislation, and the legislative history of the IRA is
    particularly challenging because two of the individuals primarily
    responsible for its passage--Commissioner of Indian Affairs John
    Collier and Chairman of the Senate Committee on Indian Affairs Burton
    Wheeler--had divergent views about the ultimate aims of Federal Indian
    policy. Senator Wheeler still believed that the government should be
    pursuing a policy of forced assimilation, while Commissioner Collier
    believed that the Federal Government should encourage the
    revitalization of traditional religious beliefs, arts and crafts, and
    governmental institutions. See generally Kenneth R. Philip, John
    Collier's Crusade for Indian Reform 1920-1954 (1977); Elmer R. Rusco, A
    Fateful Time: The Background and Legislative History of the Indian
    Reorganization Act 292-93 (2000).

        In six different hearings held throughout April and May 1934,\1\
    Chairman Wheeler expressed his concerns that the term ``recognized
    Indian tribe'' was over-inclusive and would require the guardian-ward
    relationship to be permanently maintained over tribes and tribal
    members that, in his view, had or would become, fully assimilated into
    white culture. Specifically, Chairman Wheeler argued that certain
    Indians in California, Montana and Oklahoma were capable of handling
    their own affairs, and in the future, they must be given fee title to
    their property. Near the end of the hearing on May 17, 1934, Wheeler
    pressed these concerns, noting that there were ``several so-called
    `tribes' '' in northern California that were comprised of ``white
    people essentially,'' ``[a]nd yet they are under the supervision of the
    Government of the United States, and there is no reason for it at all,
    in my judgment.'' May 17, 1934 Hearing at 263-66. In response to these
    concerns, Commissioner Collier stated:
    ---------------------------------------------------------------------------
        \1\ The Senate Committee on Indian Affairs held hearings on the
    draft bill on April 26, 28, 30 and May 3, 4, and 17, 1934.

            Commissioner COLLIER. Would this not meet your thought,
            Senator: After the words ``recognized Indian tribe'' in line 1
            insert ``now under Federal jurisdiction''? That would limit the
            act to the Indians now under Federal jurisdiction, except that
            other Indians of more than one-half Indian blood would get
    ---------------------------------------------------------------------------
            help.

    Id. at 266. And the bill was thus amended. This is the only mention of
    the phrase ``now under Federal jurisdiction'' in the legislative
    history. Contrary to the Supreme Court's decision in Carcieri, this
    legislative history appears to support an interpretation of the word
    ``now'' that would not freeze in time the status of tribes in 1934, but
    rather, allow the Federal Government to alter that status in the
    future. After all, Chairman Wheeler admitted that the persons he was
    especially concerned about were currently ``under the supervision of
    the Government of the United States,'' and he wished to change that at
    a future date.\2\
    ---------------------------------------------------------------------------
        \2\ Justice Thomas' majority opinion in Carcieri v. Salazar fails
    to discuss any of this legislative history. At a minimum, both the
    language and the legislative history of the statute should have been
    enough to establish that the word ``now'' was ambiguous. Then, the
    Court should have deferred to the agency's long-established practice in
    interpreting Section 5 of the IRA, which would have also comported with
    the Indian canons of construction that require ambiguous language in
    Indian-specific legislation to be read in favor of preserving tribal
    rights.

        Not long after this language was added to the bill, Felix Cohen,
    the Assistant Solicitor, expressed his concerns. Cohen drafted a
    memorandum attempting to explain the differences between the Senate and
    House versions of the bill, and he noted that the Senate bill ``limits
    recognized tribal membership to those tribes `now under Federal
    jurisdiction,' whatever that may mean.'' National Archives Record
    Administration, Washington, DC. (NARA-DC), Record Group (RG) 75,
    Records Concerning the Wheeler-Howard Act, 1933-1937, Box 10,
    Memorandum of Felix Cohn, Differences Between House Bill and Senate
    Bill, at 2 (emphasis added). In a later analysis, Cohen explicitly
    advocated for the removal of the phrase ``under Federal jurisdiction,''
    noting that it was likely to ``provoke interminable questions of
    interpretation.'' NARA-DC, RG 75, Records Concerning the Wheeler-Howard
    Act, 1933-1937, Box 11, Analysis of Differences Between House Bill and
    Senate Bill, at 14-15. Unfortunately, Cohen's advice was not heeded,
    and the statute was adopted with the phrase remaining.
    The Litigation that Followed
        Following the Supreme Court's decision in Carcieri, the question
    became whether ``under Federal jurisdiction'' referred to tribes that
    were subject to Congress' power,\3\ or, more narrowly, only to those
    tribes that the Federal Government had exercised its power over. If the
    latter were the interpretation adopted by the courts, extensive
    historical documentation would need to be gathered as part of any fee-
    to-trust application. Thus, Indian Country braced itself for a series
    of legal challenges designed to define this phrase. Still, no one could
    have anticipated the number of frivolous challenges to trust
    acquisitions that have been lodged over the past decade. States and
    local governments with strained relationships toward resident Indian
    tribes have exploited Carcieri to delay trust acquisitions or increase
    the costs of such acquisitions even in circumstances were no reasonable
    argument could be made that a particular tribe was not under Federal
    jurisdiction in 1934.
    ---------------------------------------------------------------------------
        \3\ Congress may not ``bring a community or body of people within
    the range of [its] power by arbitrarily calling them an Indian tribe.''
    United States v. Sandoval, 231 U.S. 28 (1913).
    ---------------------------------------------------------------------------
        A little bit of additional background is required to explain the
    absurdity of the challenges that ensued. The IRA sought to encourage
    tribal self-government, and as a result, the Federal Government sought
    tribal consent to its provisions through an election that was supposed
    to be called by the Secretary of the Interior on each reservation.
    Additionally, the IRA encouraged tribes to adopt written constitutions
    or corporate charters, which would only become effective when ratified
    by a majority vote of the adult members of the tribe residing on the
    reservation. IRA, Sec. Sec. 16, 17. Theodore Haas, who was Chief
    Counsel for the Bureau of Indian Affairs in the 1940s, compiled a
    pamphlet entitled Ten Years of Tribal Government Under the IRA (1947).
    This pamphlet listed the tribes that voted to accept or reject the IRA
    in the years immediately following its enactment, and it also listed
    the tribes that had voted on tribal constitutions and corporate
    charters. The so-called Haas lists certainly do not include all of the
    Indian tribes who were ``under Federal jurisdiction'' in 1934. For
    example, only tribes with existing land bases were permitted to
    organize as constitutional governments under the IRA; elections were
    not called for landless tribes. IRA, Sec. 16 (permitting the
    organization of ``[a]ny Indian tribe, or tribes, residing on the same
    reservation . . .''). Nevertheless, the Haas lists should provide
    irrefutable evidence for those tribes that are mentioned, because they
    demonstrate that the Federal Government immediately consulted them to
    determine if, when, and how the IRA would be implemented on their
    reservations.
        Despite this, local governments and private citizens have
    challenged the trust acquisitions of dozens of tribes including on the
    Haas lists. The Fond du Lac Band of Ojibwe faced significant delays
    when it asked that a parcel of land be taken into trust for uses
    including protection of historical and cultural sites, preservation of
    sugar bush and riparian lands, and the creation of affordable housing.
    Saint Louis County objected to the proposed trust acquisition on
    Carcieri grounds. The County did so even though the Minnesota Chippewa
    Tribe, of which the Fond du Lac Band is a part, (1) voted to accept the
    IRA on October 27th and November 17, 1934, and (2) adopted an IRA-
    approved Constitution in 1936. While the County eventually admitted
    that these votes were conclusive evidence that the Band was ``under
    Federal jurisdiction'' in 1934, the Band's trust acquisition was
    delayed by more than a year due, in part, to this frivolous claim.
        The Mille Lacs Band of Ojibwe is also a constituent band of the
    Minnesota Chippewa Tribe. It is a successor in interest to at least
    seven treaties with the United States, including an 1837 treaty under
    which the Band still possesses off-reservation hunting, fishing and
    gathering rights reaffirmed by the U.S. Supreme Court. Minnesota v.
    Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Congress
    passed numerous statutes for the benefit of the Band prior to the IRA's
    enactment, and case law expressly recognized the Federal Government's
    continuing obligations to the Band. United States v. Mille Lac Band of
    Chippewa Indians, 229 U.S. 498, 507 (1913) (recognizing the Band's
    continuing interest in reservation lands). Finally, the Band adopted an
    IRA Constitution in 1936 (as a constituent Band of the Minnesota
    Chippewa Tribe, specifically referred to in the Constitution as ``the
    non[-]removal Mille Lac Band of Chippewa Indians''), a corporate
    charter in 1937, and a local governance charter in 1939. Despite all of
    this, Mille Lacs County challenged the Department's decision to take
    land into trust for housing purposes, arguing that the Mille Lacs Band
    was not under Federal jurisdiction in 1934. Mille Lacs County v. Acting
    Midwest Regional Director, 62 IBIA 130 (2016). While the Interior Board
    of Indian Appeals (``IBIA'') ultimately rejected this challenge, it did
    not do so until 2\1/2\ years following the Acting Midwest Regional
    Director's decision to take the land into trust.
        These are not isolated instances. The Oneida Nation of Wisconsin
    has twice faced Carcieri challenges to its fee-to-trust applications.
    Village of Hobart v. Acting Midwest Regional Director, 57 IBIA 4 (2013)
    (rejecting Village of Hobart's Carcieri challenge and noting that the
    Nation was party to treaties with the United States, subjected to
    various congressional acts, voted to accept the IRA in 1934, and
    adopted an IRA Constitution in 1936); Dillenburg v. Midwest Regional
    Director, 63 IBIA 56 (2016) (rejecting same arguments made by private
    citizens). Likewise, dozens of other tribes on the Haas lists have
    faced similar challenges to their fee-to-trust applications, many of
    which have been appealed (unsuccessfully) to the IBIA and Federal
    courts. See, e.g., Stand Up for California! v. U.S. Dep't of the
    Interior, 204 F. Supp. 3d 212 (D.D.C. 2016), aff'd 879 F.3d 1177 (D.C.
    Cir. 2018) (North Fork Rancheria); Starkey v. Pacific Regional
    Director, 63 IBIA 254 (2016) (La Posta Band of Mission Indians), New
    York v. Acting Eastern Regional Director, 58 IBIA 323 (2014) (Oneida
    Nation of New York); Thurston County v. Great Plains Regional Director,
    56 IBIA 296 (2013) (Nebraska Winnebago Tribe); Shawano County v. Acting
    Midwest Regional Director, 53 IBIA 62 (2011) (Stockbridge-Munsee
    Community).
        Litigants have not been content, however, to challenge current
    applications to take land into trust. The Supreme Court amplified the
    litigation risk posed by Carcieri in its decision in Match-E-Be-Nash-
    She-Wish Band of Potawatomi v. Patchak, 567 U.S. 209 (2012). In
    Patchak, the Court interpreted the Quiet Title Act to allow certain
    retroactive challenges to lands that had already been taken into trust.
    Prior to Patchak, states and local governments seeking to challenge
    trust land acquisitions were required to file their lawsuits within 30
    days. 25 C.F.R. Sec. 151.12(b)(2012).\4\ Immediately after Patchak, the
    APA's general 6-year statute of limitations applied to challenges of
    trust acquisitions.
    ---------------------------------------------------------------------------
        \4\ Prior to Patchak, if challenges were filed within the 30-day
    window, as a matter of policy, the Department would not take the land
    into trust until after the lawsuit had been resolved. If litigants
    missed this 30-day deadline, however, the land was taken into trust and
    all challenges to the acquisition were believed to be barred.
    ---------------------------------------------------------------------------
        Emboldened by Patchak, litigants sought to remove land that had
    already been taken into trust for tribes--sometimes decades earlier--by
    claiming that they were not ``under Federal jurisdiction'' in 1934. And
    when these lawsuits failed, new and creative collateral attacks were
    filed. See, e.g., Alabama v. PCI Gaming Auth., 15 F.Supp.3d 1161 (N.D.
    Ala. 2014), aff'd, 801 F.3d 1278, 1291 (11th Cir. 2015) (noting that
    the ``proper vehicle'' for challenging the Secretary's authority to
    take land into trust for the Poarch Band of Creek Indians was a timely
    APA challenge, not a collateral challenge to a decision made by the
    Secretary decades earlier); Big Lagoon Rancheria v. California, 789
    F.3d 947, 952-53 (9th Cir. 2015) (en banc) (rejecting a Carcieri
    argument raised outside the APA context). For example, in 2015, a tax
    assessor in Escambia County, Alabama assessed property taxes on land
    that was taken into trust in 1984 for the Poarch Band of Creek Indians.
    The assessor apparently claimed that the land was ``illegally'' taken
    into trust because the Poarch Band was not ``under Federal
    jurisdiction'' in 1934, and therefore, the tax-exempt status of its
    land should not be recognized. The Tribe sued to stop this assessment
    and was granted a preliminary injunction by the Federal district court.
    The Eleventh Circuit upheld that decision, noting that it had
    previously rejected a collateral attack on the same parcel of land in
    PCI Gaming. Poarch Band of Creek Indians v. Hildreth, 656 Fed. Appx.
    934 (11th Cir. 2016).
    The Current Meaning of ``Under Federal Jurisdiction''?
        In 2014, an official M-Opinion was issued by the Department of the
    Interior, which provides a framework for determining whether an Indian
    tribe is ``under Federal jurisdiction'' in 1934. Memorandum from
    Solicitor Hilary Tompkins to Secretary Sally Jewell, The Meaning of
    Under Federal Jurisdiction for Purposes of the Indian Reorganization
    Act, M-37029 (Mar. 12, 2014). In that opinion, the Solicitor required
    that tribes meet a two-part test. First, there must be evidence prior
    to 1934 that the United States took ``an action or series of actions--
    through a course of dealings or other relevant acts for or on behalf of
    the tribe or in some instance tribal members--that are sufficient to
    establish, or that generally reflect Federal obligations, duties,
    responsibility for or authority over the tribe by the Federal
    Government.'' Id. at 19. Second, tribes must demonstrate that their
    ``jurisdictional status remained intact in 1934.'' Id. To date, courts
    appear to have adopted this two-part framework. E.g., Confederated
    Tribes of the Grand Ronde Cmty. v. Jewell, 830 F.3d 552 (D.C. Cir.
    2016) (adopting two-part test and concluding that the Cowlitz tribe was
    ``under Federal jurisdiction'' in 1934).

        Finding and assembling the information necessary to satisfy this
    two-part inquiry, however, is daunting. The M-Opinion provides examples
    of evidence sufficient to establish Federal obligations, duties, and
    authority over the tribe, which:

            may include, but is certainly not limited to, the negotiation
            of and/or entering into treaties; the approval of contracts
            between a tribe and non-Indians; enforcement of the Trade and
            Intercourse Acts (Indian trader, liquor laws, and land
            transactions); the education of Indian students at BIA schools;
            and the provision of health or social services to a tribe.

    M-37029, at 19.

        Federal records and correspondence needed to demonstrate these
    actions are scattered throughout the country in public archives and
    private collections. If, for example, you were looking for information
    on Minnesota Indian tribes, at a minimum, you would need to search the
    National Archives in Chicago, Illinois and Washington, DC, as well as
    local historical societies in the states of Minnesota and Wisconsin.
    Additionally, the dates and types of documents often sought in response
    to Carcieri challenges are extremely time consuming to gather. From
    1887 through 1906, for example, all historical correspondence from
    Indian agents to the Commissioner of Indian Affairs are filed in
    chronological order of receipt in the National Archives in Washington,
    DC. To find relevant documents, the researcher must engage in a multi-
    step process: (1) identify key words (e.g., names of officials, tribal
    members, locations, and activities); (2) use those key words to search
    a microfilmed index that provides only the numbers of letters that were
    received from Indian agents and private citizens throughout the United
    States; (3) use a finding aid to determine what box a particular
    numbered letter is in; and (4) request that box at one of the specific
    National Archives pull times. Many letters are missing from their
    assigned boxes, others may be irrelevant, and only 10-15 boxes may be
    requested for an individual pull. Researching documents in this manner
    requires a significant expenditure of time, and therefore, money.
        The M-Opinion specifically references ``the education of Indian
    children at BIA schools,'' as a category of documents that can be used
    to demonstrate that a tribe was ``under Federal jurisdiction'' prior to
    1934. Finding these documents, however, is even more time consuming
    than the process described above. Records for Indian children are
    typically organized by the child's last name, not by his or her tribal
    affiliation. Therefore, genealogies or tribal membership lists are
    often needed to identify potentially relevant records. And since Indian
    children were sent to boarding schools throughout the country, a
    researcher may need to visit document collections in more than three
    different locations.
        Even more distressing, after expending all of these resources, a
    tribe may gather this documentation only to be told that it is
    inadequate. The Mashpee Wampanoag Tribe find themselves in just such a
    position. On March 20, 2013, Solicitor Tompkins wrote Mashpee Wampanoag
    Tribal Chairman Cedric Cromwell, to inform him about the status of the
    tribe's pending fee-to-trust application. Tompkins noted that ``[t]he
    majority of Carcieri determinations require a comprehensive, fact-
    intensive analysis that can be time intensive and costly.'' The
    Department ultimately decided to forego this determination and take the
    321-acre parcel of land into trust for the tribe under a different
    provision of the IRA, in 2015. But after local residents succeeded in a
    Federal court lawsuit that required the Department to take another look
    at its decision, the Mashpee were forced to engage in this ``time
    intensive and costly'' process and to collect the kind of information
    identified in the case law that has developed in case law and in the M-
    Opinion.
        The Mashpee submitted extensive documentation to the Department
    establishing that the tribe was ``under Federal jurisdiction'' in 1934.
    For example, the tribe submitted correspondence, health records, and
    other school records for a significant number of Mashpee children who
    attended the Carlisle Indian Industrial School until 1918, when the
    school closed. Even though the M-Opinion specifically references ``the
    education of Indian students at BIA schools,'' and even though such
    evidence has been relied on by several Federal courts in Carcieri-
    related cases, in September 2018, the Department essentially rejected
    that evidence when it refused to reaffirm the status of the tribe's
    reservation.
        The consequences for the Mashpee Wampanoag Tribe have been
    extraordinary. They had already broken ground on their tribal casino
    and apparently owe more than $300 million, yet construction is
    indefinitely stalled and the tribe has no more access to capital.
    Without any trust lands, the tribe does not qualify for even the most
    basic Federal programs. See, e.g., 7 C.F.R. Part 253, 254 (Department
    of Agriculture food distribution program only applies to low-income
    Indians residing on or near a reservation); 25 C.F.R. Part 20 (Federal
    social service programs including burial assistance, disaster
    assistance, and adult care assistance) are available only to Indians
    who reside ``on or near reservations''); 25 C.F.R. Part 26 (Indian
    employment assistance programs are only available to those persons
    residing on or near Indian reservations). The Tribe has had to layoff
    employees and its tribal council is working without pay.
    What Policy Justifications Support 1934 as the Dividing Line?
        As the Mashpee make clear, trust lands are vital. They are the only
    lands permanently held for the benefit of an Indian tribe.
    Historically, millions of acres were lost due to the inability of the
    tribe or tribal members to pay real property taxes or mortgage debts.
    Charles F. Wilkinson, American Indians, Time and the Law 20 (1987)
    (noting that prior to the adoption of the IRA, more than 26 million
    acres of allotted land left Indian hands due to fraud, mortgage
    foreclosures, and tax sales). While land remains in fee status, state
    powers of eminent domain could be employed take a right-of-way across
    that land for pipelines or other projects, potentially destroying
    cultural and historic resources. Trust land, on the other hand, cannot
    be taxed, condemned or otherwise alienated without either tribal
    consent or express congressional authorization. See e.g., 25 C.F.R.
    Sec. 152.22 (requiring Secretarial approval to convey trust lands); 25
    C.F.R. Part 169 (requiring tribal consent and Secretarial approval for
    rights-of-way across trust lands); United States v. Rickert, 188 U.S.
    432 (1903) (precluding state taxation of trust property); The New York
    Indians, 72 U.S. 761 (1867) (precluding state taxation and tax
    forfeiture proceedings against tribal lands); The Kansas Indians, 72
    U.S. 737 (1867) (same).
        Trust lands are also the only lands on which the tribe's sovereign
    authority is undisputed. Tribes exercise sovereignty over trust lands
    regardless of whether they are located inside or outside reservation
    boundaries. See 18 U.S.C. Sec. 1151 (defining ``Indian country'' to
    include ``dependent Indian communities,'' and allotments still held in
    trust); Alaska v. Native Village of Venetie Tribal Government, 522 U.S.
    520 (1998) (noting that ``dependent Indian communities'' includes land
    that is under Federal superintendence and has been set aside by the
    Federal Government for the use of a tribe). And while the U.S. Supreme
    Court has limited tribal sovereignty over non-members on fee land, it
    has not done so on trust lands. Compare Plains Commerce Bank v. Long
    Family Land and Cattle Co., 554 U.S. 316 (2008) (claiming that ``[o]ur
    cases have made clear that once tribal land is converted into fee
    simple, the tribe loses plenary jurisdiction over it,'' and stating
    that ``the tribe has no authority itself, by way of tribal ordinance or
    actions in the tribal courts, to regulate the use of fee land''), with
    Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (upholding
    tribal severance tax on natural resources removed by nonmembers from
    trust lands), and New Mexico v. Mescalero Apache Tribe, 462 U.S. 324
    (1983) (holding that the state could not ``restrict an Indian Tribe's
    regulation of hunting and fishing'' on trust lands within its
    reservation). Permanency and sovereignty authority are, in essence,
    what makes the land a true homeland for Indian tribes. Trust lands are
    necessary for both.
        The Carcieri decision has created two classes of tribes: those that
    were ``under Federal jurisdiction'' in 1934, and those that were not.
    The benefits of the IRA are now unavailable to the latter group. If the
    latter group did not possess land prior to 2009, when the Carcieri
    decision was handed down, it faces the prospect of never regaining a
    permanent homeland. Congress never intended this result.
        Securing trust lands for Indian tribes was always considered
    necessary to promote economic security and self-determination, which
    were the main goals of the IRA. H.R. Rep. No. 1804, 73d Cong., 2d
    Sess., 6 (1934). It should not be surprising that the legislative
    history for the IRA is therefore replete with references to the need to
    help ``landless Indians.'' Id. (stating that the IRA would ``make many
    of the now pauperized, landless Indians self-supporting''); 78 Cong.
    Rec. 11,370 (1934) (statement of Representative Howard, one of the
    bill's co-sponsors, stating Section 5 of the IRA would ``provide land
    for Indians who have no land or insufficient land''); 78 Cong. Rec.
    11,726 (1934) (noting that the IRA would authorize ``the purchase of
    additional lands for landless Indians''). In fact, there are so many
    references to ``landless Indians'' that some have argued--incorrectly--
    that the IRA's land provisions were only designed to help such tribes
    and tribal members. See South Dakota v. U.S. Dep't of Interior, 423
    F.3d 790, 798 (8th Cir. 2005) (``Although the legislative history [of
    the IRA] frequently mentions landless Indians, we do not believe that
    Congress intended to limit its broadly stated purposes of economic
    advancement and additional lands for Indians to situations involving
    landless Indians''); South Dakota v. Acting Great Plains Regional
    Director, 39 IBIA 283, 289-90 (2004) (noting that Indians need not be
    landless for the Secretary to acquire land for them under Section 5 of
    the IRA). Ironically, the IRA is now being read to preclude most
    landless tribes from acquiring any trust lands.

        Subsequent Congresses did not intend this result either. In nearly
    every individual tribal recognition statute passed since the 1970s,
    Congress provided that the newly recognized or re-recognized tribe was
    permitted to utilize all of the rights and benefits provided by the
    IRA, including the right to have the Secretary acquire lands in trust
    for the tribe.\5\ Additionally, in 1994, Congress enacted amendments to
    the IRA that explicitly prohibited any Federal agency from promulgating
    a regulation or making a decision ``that classifies, enhances, or
    diminishes the privileges and immunities available to the Indian tribe
    relative to other federally recognized tribes.'' 25 U.S.C. Sec. 476(f)
    & (g). These amendments were passed in direct reaction to informal
    policies of the Bureau of Indian Affairs, which had begun classifying
    tribes into ``created'' and ``historic'' tribes, limiting the benefits
    available to former. Senator Inouye, who co-sponsored the legislation,
    told Congress that:
    ---------------------------------------------------------------------------
        \5\ See, e.g., Tonto Apache Tribe of Arizona, P.L. 92-470 (Oct. 6,
    1972) (``The Payson Community of Yavapai-Apache Indians shall be
    recognized as a tribe of Indians within the purview of the Act of June
    18, 1934 . . . and shall be subject to all of the provisions
    thereof''); Pasqua Yaqui of Arizona, P.L. 95-375 (Sept. 18,1978) (``The
    provisions of the Act of June 18, 1934 . . . are extended to such
    members described in subsection (a) of this section''); Cedar City Band
    of Paiutes in Utah, P.L. 96-227 (Apr. 3, 1980) (``The provisions of the
    Act of June 18, 1934 . . . except as inconsistent with the specific
    provisions of this Act, are made applicable to the tribe and the
    members of the tribe.''); Ysleta Del Sur Pueblo of Texas, P.L. 100-89
    (Aug. 18, 1987) (``The Act of June 18, 1934 (28 Stat. 984) as amended .
    . . shall apply to members of the tribe, the tribe, and the
    reservation''); Lac Vieux Desert Band of Lake Superior Chippewa, P.L.
    100-420 (Sept. 8, 1988) (``The Act of June 18, 1934 (48 Stat. 984), as
    amended, and all laws and rules of law of the United States of general
    application to Indians, Indian tribes, or Indian reservations which are
    not inconsistent with this Act shall apply to the members of the Band,
    and the reservation''); Yurok Tribe of California, P.L. 100-580 (Oct.
    31, 1988) (``The Indian Reorganization Act of June 18, 1934 (48 Stat.
    984; 25 U.S.C. 461 et seq.), as amended, is hereby made applicable to
    the Yurok Tribe''); Pokagon Band of Potawatomi Indians of Michigan,
    P.L. 103-323 (Sept. 21, 1994) (``Except as otherwise provided in this
    Act, all Federal laws of general application to Indians and Indian
    tribes, including the Act of June 18, 1934 . . . shall apply with
    respect to the Band and its members''); Little River Band of Ottawa
    Indians and Little Traverse Bay Bands of Odawa Indians, P.L. 103-324
    (Sept. 21, 1994) (``All laws and regulations of the United States of
    general application to Indians or nations, tribes, or bands of Indians,
    including the Act of June 18, 1934 . . . which are not inconsistent
    with any specific provision of this Act shall be applicable to the
    Bands and their members'').

            The amendment which we are offering . . . will make it clear
            that the Indian Reorganization Act does not authorize or
            require the Secretary to establish classifications between
            Indian tribes. . . . [I]t is and has always been Federal law
            and policy that Indian tribes recognized by the Federal
            Government stand on an equal footing to each other and to the
            Federal Government. . . . Each federally recognized Indian
            tribe is entitled to the same privileges and immunities as
            other federally recognized tribes and has the right to exercise
            the same inherent and delegated authorities. This is true
            without regard to the manner in which the Indian tribe became
            recognized by the United States or whether it has chosen to
            organize under the IRA. By enacting this amendment . . ., we
            will provide the stability for Indian tribal governments that
            the Congress thought it was providing 60 years ago when the IRA
    ---------------------------------------------------------------------------
            was enacted.

    140 Cong. Rec. S6147, 1994 WL 196882 (May 19, 1994).

        The language and intent of the 1994 List Act is contrary to the
    Court's decision in Carcieri, which now requires the Department to
    distinguish between tribes that were ``under Federal jurisdiction'' in
    1934, and those that were not. The practical distinction, however, ends
    up being different. It is not the date of tribal acknowledgment, but
    rather, the manner in which an Indian tribe became acknowledged that is
    crucial. As noted above, tribes that were recognized by Congress are
    generally insulated from the impacts of Carcieri through express
    provisions in their recognition bills that make the IRA applicable to
    both the tribe and its members. Indeed, many tribal acknowledgment
    bills passed by Congress include more favorable fee-to-trust
    provisions, which eliminate the Secretary's discretion and instead
    mandate that certain lands (either determined by quantity, location, or
    both) be taken into trust for the tribe. This demonstrates that
    Congress has always understood the vital importance of trust lands to
    tribal sovereignty.
        The only tribes faced with the inability of the Federal Government
    to take any land into trust for their benefit are a subset of those
    tribes recognized through the Office of Federal Acknowledgment
    (``OFA''). Drawing a distinction between congressionally recognized and
    OFA-recognized tribes to the detriment of the latter group, simply
    makes no sense. These are tribes that have already proven their
    continuous existence from 1900 to the present through expert reports
    and primary source documents. Many of them have waited years and
    expended millions of dollars to obtain acknowledgment as a federally
    recognized tribe only to find the benefits of that decision illusory.
        I urge the members of this Committee to support H.R. 375, which
    will once again clarify that the benefits of the IRA are available to
    all federally recognized tribes. Each time the Federal Government takes
    land into trust, it helps a tribe use the land to build housing, to
    protect cultural resources, or to pursue economic development necessary
    to fund tribal governmental operations and services. The Federal
    Government has an obligation to reverse the impacts of misguided
    Federal policies that deprived tribes of their lands and resources and
    sought to stamp out their unique identity. Adopting a clean Carcieri-
    fix would be one step in that direction.

        Thank you.

                                     ______

     Questions Submitted for the Record by Rep. Bishop to Colette Routel,
                Professor of Law, Mitchell Hamline School of Law
        Question 1. In your written statement, you explain that the
    Solicitor of the Interior in 2013 decided to forgo the usual Carcieri
    determination for the Mashpee. Land was later taken in trust for the
    Mashpee ``under a different provision of the IRA . . .'' [Written
    Statement, page 7]. To clarify, is this ``different provision of the
    IRA'' the so-called ``second definition'' of ``Indian'' in section 19
    of that Act? If so, then to the best of your knowledge, has the
    Department ever acquired land in trust under the IRA for any other
    tribe under the second definition of ``Indian''?

        Answer. The IRA's second definition of ``Indian.'':

        In my written testimony previously provided to the Subcommittee, I
    noted that the Department of the Interior (``Department'') initially
    decided to forego making a Carcieri determination for the Mashpee
    Wampanoag, and instead took land into trust for the tribe ``under a
    different provision of the IRA'' in 2015. Ranking Member Bishop asked
    whether this ``different provision'' was the second definition of
    ``Indian'' in Section 19 of the Indian Reorganization Act (``IRA''),
    and if so, whether I knew of any instances of the Department previously
    invoking this definition. The answer to these questions is ``yes.''

        Section 19 of the IRA defines the term ``Indian'' as follows:

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

    The italicized portion of this Section is the so-called ``second
    definition,'' which was used by the Department in its initial decision
    to take land into trust for the Mashpee. To date, I have not
    specifically set out to research the historical implementation of this
    provision. I do, however, know of at least two instances where this
    provision was used to ensure that tribes had access to the benefits of
    the IRA: the Saginaw Chippewa Indian Community and the Bay Mills Indian
    Community.

        In 1855, the ``Ottawa and Chippewa Indians'' and the ``Saginaw,
    Swan Creek and Black River Indians'' signed two treaties with the
    United States that created several reservations for their benefit in
    the state of Michigan. See 1855 Treaty of Detroit, 10 Stat. 591 (``1855
    Ottawa and Chippewa Treaty''); Treaty with the Chippewa, 11 Stat. 633
    (1855) (``1855 Saginaw Treaty''). Article V of the 1855 Ottawa and
    Chippewa Treaty provided that ``[t]he tribal organization of said
    Ottawa and Chippewa Indians, except so far as may be necessary for the
    purpose of carrying into effect the provisions of this agreement, is
    hereby dissolved.'' Article VI of the 1855 Saginaw Treaty contained
    nearly identical language. These provisions were included in the
    treaties at the request of the tribes. Tribal leaders had expressed
    frustration that the government was negotiating with the Ottawa and
    Chippewa together, even though they were separate communities. For
    example, during negotiations for the 1855 Ottawa and Chippewa Treaty,
    Waw-be-geeg, a Chippewa chief from the Upper Peninsula, indicated his
    concern several times, noting that ``I told you when I first came that
    I wanted to be separated from the Ottawas and you have not answered me.
    We have sat here and heard you talk to the Ottawas while you paid no
    attention to us.'' George Manypenny, the Commissioner of Indian
    Affairs, responded to Waw-be-geeg by stating that the fictious grouping
    of the Ottawa and Chippewa bands together as one tribe would be
    dissolved in the treaty: ``[t]he very case you suggested is met in the
    treaty you are separated as you desire. This treaty you and the Ottawas
    must sign together is because the old treaty of 36 was made in that
    way, but here we have followed your suggestion and provide . . . that
    no general council shall be called'' in the future. United States v.
    Michigan, 471 F.Supp. 192, 247-48 (W.D. Mich. 1979) (recounting the
    history of Article V of the 1855 Treaty, including excerpts from the
    original treaty journal, and concluding that Article V was not meant to
    terminate the government-to-government relationship with the Michigan
    Ottawa and Chippewa bands).
        Years after the 1855 Treaties were ratified, Federal officials who
    had not been present for the negotiations misread Articles V & VI, and
    incorrectly concluded that they had ended the Federal-tribal
    relationship with the Ottawa and Chippewa bands in Michigan. As a
    result, by the end of the 19th century, the Federal Government had
    abdicated its responsibilities to the bands and repeatedly stated that
    they were no longer wards of the government subject to Federal
    jurisdiction. E.g., Grand Traverse Band v. Office of U.S. Att'y, 369
    F.3d 960, 961-62 n.2 (6th Cir. 2004) (describing the Federal
    Government's misinterpretation of Article V of the 1855 Ottawa and
    Chippewa Treaty, and its decision to cease recognizing the signatory
    tribes).
        When the IRA was enacted in 1934, the Department had to determine
    whether it would enable these Michigan Indian tribes to access its
    benefits. In 1934, the Department still clung to the position that
    these tribes had been ``dissolved'' and were no longer ``under Federal
    jurisdiction.'' The Department originally expressed interest in
    purchasing land and taking that land into trust for half-bloods (i.e.,
    the third definition of Indian in the IRA). Ultimately, however, the
    Department never followed through on this approach even while it did so
    for tribes in neighboring states, such as the St. Croix Band of
    Chippewa Indians. 1 Dept. of Interior, Opinions of the Solicitor
    Relating to Indian Affairs, 1917-1974, 724-25 (decision recognizing St.
    Croix as half-blood community). Instead, the Department encouraged the
    Saginaw Chippewa Indian Community and Bay Mills Indian Community to
    organize under the IRA's second definition of ``Indian.'' The
    Department acknowledged that both Saginaw and Bay Mills maintained
    reservations pursuant to the 1855 Treaty, and therefore, the
    descendants of persons who were members of those two bands prior to
    their dissolution could organize under the IRA if they were residing on
    those reservations. Once the bands were organized, they could adopt
    constitutional membership criteria that included persons who lived off-
    reservation.
        By way of example, I am attaching one of the letters articulating
    this process for the Saginaw Chippewa Indian Community. In July 1936,
    Assistant Commissioner of Indian Affairs, William Zimmerman, wrote to
    the Saginaw Chippewa and indicated that ``[a]lthough historically your
    group composed the Saginaw, Swan Creek, and Black River Bands, Article
    6 of the treaty of August 2, 1855, 11 Stat. 633, made with those bands,
    dissolved their tribal organization.'' Because (according to the
    Federal Government's misreading of the treaty) the tribe no longer
    existed, Zimmerman noted that they should organize under the second
    definition of ``Indian'' in the IRA: ``[y]our group also comes within
    the term ``Indian'' as defined in section 19 of the Reorganization Act
    in view of the fact that your group is composed of descendants of
    members of a recognized tribe, residing on June 1, 1934, within the
    boundaries of an Indian reservation.'' Zimmerman to Chairman, July 31,
    1936, CCF 9060-A-1936, Tomah 068. Zimmerman did not believe that the
    Saginaw Chippewa needed to establish that they were ``under Federal
    jurisdiction'' as of June 1934; indeed, under his misinterpretation of
    the 1855 Treaty, he was saying that the tribe was not under Federal
    jurisdiction as of that date.
        The Department made a similar determination for the Bay Mills
    Indian Community. See, e.g., Amicus Brief of Historians, Carcieri v.
    Salazar, at 17-18 (noting that in 1934, Federal officials believed
    ``that the Bay Mills Indians were no longer `wards of the government'
    '' and that ``Commissioner Collier suggested, and the Bay Mills
    community agreed, that they should organize as `Indians residing on one
    reservation' ''); Charles E. Cleland, The Place of the Pike
    (Gnoozhekaaning): A History of the Bay Mills Indian Community 67-73
    (2001) (recounting Commissioner Collier's decision, in May 1936, to
    allow Bay Mills to organize under the IRA's second definition of
    ``Indian''). The Federal Government then purchased approximately 1,000
    acres of land within or adjacent to Bay Mills' existing reservation and
    took that land into trust for the benefit of the tribe. Cleland, supra,
    at 70-71.
        Unfortunately, the Department did not permit many other Michigan
    Ottawa and Chippewa bands to organize, and those tribes had to wait
    many years for Congress or the Office of Federal Acknowledgment
    (``OFA'') to reaffirm their existence. The Grand River Band of Ottawa
    and Chippewa Indians was the first tribe acknowledged by OFA.
    Determination for Federal Acknowledgment of the Grand Traverse Band of
    Ottawa and Chippewa Indian Tribe, 45 Fed. Reg. 19,321 (1980).\1\ The
    Little Traverse Bay Bands of Odawa Indians and the Little River Band
    were recognized through congressional legislation. Little River Band of
    Ottawa Indians and Little Traverse Bay Bands of Odawa Indians, P.L.
    103-324, 108 Stat. 2156 (Sept. 21, 1994). And the Grand River Band is
    still seeking Federal acknowledgment; the OFA has promised to issue its
    decision with respect to the Band by April 23, 2019. See Letter from
    Director, OFA to Chairman, Grand River Band (Mar. 21, 2019), available
    at https://www.bia.gov/sites/bia.gov/files/assets/asia/ofa/petition/
    146_grrvbd_MI/146_pf_ext_2019_04.pdf.
    ---------------------------------------------------------------------------
        \1\ Justice Breyer noted in his concurring opinion in Carcieri that
    tribes such as the Grand Traverse Band were likely ``under Federal
    jurisdiction'' in 1934, even though the Federal Government mistakenly
    believed they were not. Carcieri v. Salazar, 555 U.S. 379, 397-99
    (2009) (Breyer J., concurring). More recently, the Interior Board of
    Indian Appeals affirmed the ability of the Department to take land into
    trust for the Grand Traverse Band, concluding that the Band did satisfy
    the first definition of ``Indian'' in Section 19 of the IRA. Grand
    Traverse County Bd. of Comm'rs v. Acting Midwest Reg'l Dir., 61 IBIA
    273 (2015).
    ---------------------------------------------------------------------------
        There are undoubtedly more examples of tribes that organized or
    otherwise received certain benefits of the IRA under the second
    definition of ``Indian.'' These two decisions, however, demonstrate
    that the Department's decision to take land into trust for the Mashpee
    in 2015 under the IRA's second definition of ``Indian'' was consistent
    with its prior rulings. Like the Grand Traverse Band and other Michigan
    Indian tribes, in 1934, the Department could have extended the benefits
    of the IRA to the Mashpee using any of the IRA definitions of
    ``Indian,'' \2\ and it was only Federal mistake and/or neglect that
    prevented the Mashpee from accessing these benefits. That mistake
    should not continue to have the force of law.
    ---------------------------------------------------------------------------
        \2\ The Mashpee had several members in 1934 that were of one-half
    or more Indian blood, and therefore, the Department could have also
    invoked the third definition of Indian to enable the tribe to organize
    under the IRA, as it did for the St. Croix Band.

        Question 2. Your written testimony goes into some detail regarding
    the intent of the 73rd Congress (particularly the intent of Senator
    Burton Wheeler, Chairman of the Senate Indian Affairs Committee) in its
    enactment the IRA. According to your testimony, Senator Wheeler was an
    assimilationist. Did the other members of the House and Senate Indian
    Affairs Committees share or oppose Senator Burton's policy views in
    this respect? Are the views of these other Members important in an
    analysis of the intent of the 73rd Congress in its enactment of the
    ---------------------------------------------------------------------------
    IRA?

        Answer. Views of Congress in enacting the IRA:

        My prior testimony highlighted Senator Wheeler's views because the
    statutory language interpreted in Carcieri was added in direct response
    to the concerns he expressed in a series of committee hearings.
    Additionally, it seemed important that even Senator Wheeler, who held
    pro-assimilationist views that ``were extreme even for [his] time,''
    would not have supported the constrained interpretation of Section 19
    of the IRA that the Court reached in Carcieri.\3\ Elmer R. Rusco, A
    Fateful Time: The Background and Legislative History of the Indian
    Reorganization Act 241 (2000).
    ---------------------------------------------------------------------------
        \3\ Senator Wheeler was, in fact, a strong supporter of the IRA as
    adopted. When he presented the bill for a vote before the entire
    Senate, he stated: ``This bill . . . seeks to get away from the
    bureaucratic control of the Indian Department, and it seeks further to
    give the Indians the control of their own affairs and of their own
    property; to put it in the hands either of an Indian council or in the
    hands of a corporation to be organized by the Indians. I, myself,
    thinking that this bill, as now presented, is the greatest step forward
    the Department has ever taken with reference to Indians.'' 73 Cong.
    Rec. 11,123 (1934). Senator Wheeler specifically noted that the
    acquisition of lands was one of the main purposes of the IRA, and that
    the Department had the authority to acquire new trust lands for both
    Indian tribes and for individual Indians. Id. at 11,123, 11,126 (noting
    that ``[t]he second purpose is to provide for the acquisition, through
    purchase, of land for Indians now landless who are anxious and fitted
    to make a living on such land,'' and, in response to questions from a
    fellow Senator, stating that Section 5 applied ``not [just] for Indian
    tribes, but for both tribes and individual Indians'').
        Scholars have noted that Senator Wheeler's original resistance to
    the IRA was due to many non-substantive factors in addition to his pro-
    assimilationist views. The first bill was drafted without congressional
    input, and it was lengthy (in excess of 50 pages) and poorly written.
    Senator Wheeler did not get along with Commissioner Collier. And
    finally, Senator Wheeler was initially not convinced that President
    Roosevelt supported the bill. When the bill was shortened and revised,
    with Senator Wheeler's input, and when President Roosevelt expressed
    his strong support for the bill, Wheeler became a strong advocate for
    its passage. Rusco, supra at 232-26, 240-41.
    ---------------------------------------------------------------------------
        In adopting its interpretation of the IRA, the Carcieri Court
    claimed that the word ``now'' meant ``at the time of enactment.'' But
    the word ``now'' could just have easily referred to ``at the time the
    statute is applied,'' as it does in numerous other statutes. See, e.g.,
    Comment to Uniform Child Custody Jurisdiction Act, Sec. 14(a)(1)
    (explaining that the word ``now'' in the phrase ``does not now have
    jurisdiction,'' means ``at the time of the petition,'' and not when the
    statute was enacted). If Congress wanted to limit the phrase ``now
    under Federal jurisdiction'' to the date of enactment of the IRA, it
    could have done so easily by referencing a particular date. After all,
    the second definition of Indian in Section 19 refers to ``descendants
    of such members who were, on June 1, 1934, residing within the present
    boundaries of any reservation.''
        Typically, when there is ambiguity in a statute, courts defer to
    the reasonable interpretation of the executive branch agency charged
    with implementing that statute, particularly if that interpretation is
    memorialized in regulations promulgated through notice-and-comment
    rulemaking. See, e.g., Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). Yet
    in Carcieri, the Court ignored the Department's land-into-trust
    regulations, which had been in place for more than 25 years and
    extended the benefits of the IRA to all federally recognized tribes. 25
    C.F.R. Sec. Sec. 151.2(b), (c)(1) (2009). The Court also ignored the
    Indian canons of construction, which state that ``statutes are to be
    construed liberally in favor of the Indians.'' Bryan v. Itasca County,
    426 U.S. 373, 392 (1976).
        Nothing in the legislative history of the IRA clarifies this
    ambiguity in a way that would support the Court's decision in Carcieri.
    In terms of legislative history, the most probative evidence of
    congressional intent can be found in the official House and Senate
    Reports. See, S. Rep. No. 73-1080 (1934) (``Senate Report''); H.R. Rep.
    No. 73-1804 (1934) (``House Report''); H.R. Rep. No. 73-2049 (1934)
    (``Conf. Rep.''). These reports indicate that Section 5, which
    authorizes the Department to take land into trust for Indian tribes,
    was supposed to be construed broadly. The Senate Report, for example,
    notes that the bill was designed ``to conserve and develop Indian lands
    and resources,'' because ``the land holdings of the Indians have
    steadily dwindled and a considerable number of Indians have become
    entirely landless.'' Senate Report at 1. Section 5 was intended ``[t]o
    meet the needs of landless Indians and of Indian individuals and tribes
    whose land holdings are insufficient for self-support.'' Id. at 2.
    Section 7 of the bill also authorized the Secretary of the Interior
    ``to proclaim new Indian reservations on the lands acquired, pursuant
    to section 5 of the bill.'' Id. There is no discussion in the Senate
    Report of the meaning of Section 19, which defines the terms ``Indian''
    and ``tribe.'' See id. at 3.
        The House report contains similar language. It states the purpose
    of the IRA: ``broadly, the measure proposes to rehabilitate the
    Indian's economic life and to give him a chance to develop the
    initiative destroyed by a century of oppression and paternalism.''
    House Report at 6. The Act should ``make many of the now pauperized,
    landless Indians self-supporting, [because] it authorizes a long-term
    program of purchasing land for them.'' Id. Nothing in the House Report
    explains the definitions of ``Indian'' or ``tribe,'' and nothing
    indicates Congress' intention to limit the provision of the Act to
    those who were ``under Federal jurisdiction'' in 1934. See id. at 7.
        The IRA received strong support in Congress. In the Senate, it
    passed by a voice vote. In the House, it passed by a vote of 258 to 88.
    Some votes in favor of the Act came from individuals who maintained a
    pro-assimilationist philosophy and there is no indication that they
    intended to limit to the benefits of the IRA to only those tribes that
    Federal officials arbitrarily determined were ``under Federal
    jurisdiction'' in 1934. Even if such a sentiment could be found, the
    Supreme Court has previously insisted that courts ``are not obligated
    in ambiguous circumstances to strain to implement [an assimilationist]
    policy Congress has now rejected, particularly where to do so will
    interfere with the present congressional approach to what is, after
    all, an ongoing relationship.'' Bryan, 426 U.S. at 388 n.14.
        The Supreme Court unfairly limited the application of this historic
    statute in Carcieri v. Salazar. This decision was wrong. Creating a
    dividing line based on whether a tribe was or was not ``under Federal
    jurisdiction'' in 1934, is not supported by any modem policy
    justifications. I hope that Congress will rectify this injustice, both
    for Mashpee and for other Indian tribes.

                                     *****

                                   ATTACHMENT

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gallego. Thank you, Ms. Routel. The Chairman now
    recognizes Ms. Richards to testify.

        STATEMENT OF CLAIRE RICHARDS, EXECUTIVE COUNSEL TO THE
       GOVERNOR, STATE OF RHODE ISLAND, PROVIDENCE, RHODE ISLAND

        Ms. Richards. Good afternoon, Chairman Gallego, Ranking
    Member Cook, and distinguished members of the Subcommittee.
    Thank you for giving me the opportunity to speak in opposition
    to H.R. 312, the Mashpee Wampanoag Reservation Reaffirmation
    Act, and to talk a little bit about the Act's potential effect
    on Rhode Island. My name is Claire Richards. I'm Executive
    Counsel to Governor Gina Raimondo, the governor of Rhode
    Island. I have served as legal counsel for four governors; two
    were Republicans, one was an Independent, and Governor Raimondo
    is a Democrat. My 22-year tenure has included 10 years of
    litigation involving the Indian Reorganization Act resulting in
    the Supreme Court's decision in Carcieri v. Salazar. In my
    capacity as Governor's Counsel, I regularly deal with complex
    legal questions surrounding the allocation of sovereignty
    between the state, the United States, and Indian tribes.
        Congress enacted the IRA to authorize the Secretary of the
    Interior to take land in trust for Indians. By its express
    terms, however, the IRA authorizes such fee-to-trust conversion
    only for those Indian tribes under Federal jurisdiction as of
    1934.
        In 2015, the Secretary took land into trust for the Mashpee
    to operate a resort casino in Taunton, Massachusetts, even
    though the Mashpee were not under Federal jurisdiction as of
    1934. The Secretary's decision violated the IRA and was an
    effort to sidestep Carcieri. It was quickly struck down by a
    Massachusetts Federal court in a case called Littlefield v. the
    Department of the Interior. Littlefield held that the
    Secretary's decision to take the Taunton land in trust was
    wrong based on the plain language of the IRA. Responding to the
    Secretary's argument that certain provisions of the IRA were
    ambiguous and therefore permitted her to convert the Taunton
    land to trust, the Court replied ``with respect, this is not a
    close call: to find ambiguity here would be to find it
    everywhere.''
        The Mashpee Act resurrects and summarily affirms this
    erroneous interpretation of the IRA. In so doing, it undermines
    the established statutory scheme for acquiring trust lands for
    Indians, as well as the Supreme Court's decision in Carcieri.
    It nullifies Littlefield and upends the current view of the
    Department of the Interior itself. All conclude that the
    Secretary is not authorized to take land into trust for the
    Mashpee or any other tribe that was not under Federal
    jurisdiction in 1934.
        The Act, and the faulty rationale upon which it premised,
    will open the door to other fee-to-trust conversions in states
    like Rhode Island whose tribes are also excluded from the trust
    provisions of the IRA. Federally recognized tribes in these
    states will argue that they stand in no different position from
    the Mashpee and that the Secretary's discredited rationale
    should apply to them as well.
        Federal trust acquisitions can have serious consequences
    for states. They strip states of their jurisdiction over land,
    they encourage tax free and tax advantage sales on trust
    property, and they give rise to complex jurisdictional
    checkerboarding issues. And the acquisition of land in trust is
    often a necessary precondition to the establishment of a
    Federal Indian casino.
        Rhode Island would be particularly hard hit by such
    acquisitions, whether within the state or, as here, less than
    15 miles from its border. As one example, Rhode Island's
    Constitution gives the state exclusive authority to operate
    casinos within its borders. Rhode Island operates two casinos
    and uses its over $300 million a year in annual gaming revenues
    to fund education, infrastructure, and social programs for its
    citizens. An Indian casino in Rhode Island's gaming catchment
    area poses a serious threat to those revenues. Rhode Island has
    experienced similar threats to revenue from the sale of tax-
    free tobacco products on Indian trust lands.
        Because of their effect on surrounding jurisdictions, trust
    acquisitions should strictly conform to the plain language of,
    and the limitations set forth in, the IRA. They should follow
    an orderly and established vetting process which includes
    consideration of the impact on neighboring jurisdictions. They
    should not be based on a firmly discredited legal rationale to
    which even the current Secretary of the Interior does not
    adhere.
        Thank you for allowing me this opportunity to raise the
    Governor's concerns on this important issue and to urge the
    Subcommittee not to pass H.R. 312. I would be happy to answer
    any questions.

        [The prepared statement of Ms. Richards follows:]
      Prepared Statement of Claire Richards, Executive Counsel To Gina M.
                 Raimondo, Governor of Rhode Island on H.R. 312
        Good afternoon Chairman Gallego and members of the Subcommittee.
    Thank you for giving me the opportunity to speak in opposition to H.R.
    312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (the
    Act) and to talk about the Act's potential effect on Rhode Island.
        I am Claire Richards, Executive Counsel to Gina Raimondo, Governor
    of Rhode Island. I have served as legal counsel to four Rhode Island
    governors; two were Republicans, one was an Independent, and Governor
    Raimondo is a Democrat. My 22-year tenure has included 10 years of
    litigation involving the Indian Reorganization Act of 1934 (the IRA)
    resulting in the Supreme Court's decision in Carcieri v. Salazar. In my
    capacity as Governor's Counsel, I regularly deal with complex legal
    questions surrounding the allocation of sovereignty between the state,
    the United States and Indian tribes.
        Congress enacted the IRA to authorize the Secretary of the Interior
    to take land in trust for Indians. 25 U.S.C. Sec. 5108. By its express
    terms, however, the IRA authorizes such fee-to-trust acquisitions only
    for those Indian tribes under Federal jurisdiction as of 1934. Carcieri
    v. Salazar, 555 U.S. 379, 382 (2009).
        In 2015, the Secretary took land into trust for the Mashpee to
    operate a resort casino in Taunton, Massachusetts, even though the
    Mashpee were not under Federal jurisdiction as of 1934. The Secretary's
    decision violated the IRA and was an effort to sidestep Carcieri; it
    was quickly struck down by a Massachusetts Federal court in Littlefield
    v. U.S. Dep't of the Interior, 199 F.Supp. 3d 391 (D. Mass. 2016),
    appeal pending, No. 16-2481 (1st Cir. 2016). Littlefield held that the
    Secretary's decision to take the Taunton land in trust was wrong based
    on the plain language of the IRA. Responding to the Secretary's
    argument that certain provisions of the IRA were ambiguous and
    therefore permitted her to convert the Taunton land to trust, the Court
    replied: ``[w]ith respect, this is not a close call: to find ambiguity
    here would be to find it everywhere.'' Id. at 396.
        The Act resurrects and summarily affirms this erroneous
    interpretation of the IRA. In so doing, it undermines the established
    statutory scheme for acquiring trust lands for Indians, as well as the
    Supreme Court's decision in Carcieri. It nullifies Littlefield and
    upends the current view of the Department of the Interior itself.\1\
    All conclude that the Secretary is not authorized to take land into
    trust for the Mashpee or any other tribe that was not under Federal
    jurisdiction as of 1934.
    ---------------------------------------------------------------------------
        \1\ In June 2017, the Department shared a draft revised decision
    with the Mashpee and the citizens who brought the Littlefield action
    denying the Tribe's land-in-trust request.
    ---------------------------------------------------------------------------
        The Act--and the faulty rationale upon which it is premised--will
    open the door to other fee-to-trust conversions in states, like Rhode
    Island, whose tribes are also excluded from the trust provisions of the
    IRA. Federally recognized tribes in these states will argue that they
    stand in no different position from the Mashpee and that the
    Secretary's discredited rationale should apply to them as well.
        Federal trust acquisitions can have serious consequences for
    states. They strip states of their jurisdiction over land, they
    encourage tax free and tax-advantaged sales on trust property and they
    give rise to complex jurisdictional ``checkerboarding'' problems. And,
    the acquisition of land in trust is often a necessary precondition to
    the establishment of a Federal Indian casino.
        Rhode Island would be particularly hard hit by such acquisitions,
    whether within the state or, as here, less than 15 miles from its
    border. As one example, Rhode Island's Constitution gives the state
    exclusive authority to operate casinos within its borders. Rhode Island
    operates two casinos and uses its over $300 million in annual gaming
    revenues to fund education, infrastructure and social programs for its
    citizens. An Indian casino in Rhode Island's gaming catchment area
    poses a serious threat to the state's gaming revenue. Rhode Island has
    experienced similar threats to revenue from the sale of tax free
    tobacco products on Indian trust lands.
        Because of their effect on surrounding jurisdictions, trust
    acquisitions should strictly conform to the plain language of, and
    limitations set forth in, the IRA. They should follow an orderly and
    established vetting process which includes consideration of the impact
    on neighboring states. They should not be based on a firmly discredited
    legal rationale to which even the current Secretary of the Interior
    does not adhere.
        Thank you again for allowing me this opportunity to raise the
    Governor's concerns on this important issue and to urge the
    Subcommittee not to pass the H.R. 312. I would be happy to answer any
    questions.

                                     ______

        Mr. Gallego. I thank the expert witnesses for their
    powerful testimony, reminding the Members that Committee Rule
    3(d) puts a 5-minute limit on questions. The Chairman will now
    recognize Members for any questions they wish to ask the
    witnesses. I will start by recognizing myself for 5 minutes.
        This question is for the Honorable Jessie Little Doe Baird.
    From your testimony, you seem to have a lot of local support
    for your tribe and your economic development initiative. What
    local support do you have and why is there opposition from the
    state of Rhode Island, although I think I just plainly heard
    the answer, and does your tribe's bill affect the jurisdiction
    of Rhode Island in any way?
        Ms. Baird. Thank you. I think the reason that we have
    opposition from the state of Rhode Island we have just heard,
    fully a third of their state revenue is generated from their
    casinos, the state casinos, and our legislation has absolutely
    no impact on the state of Rhode Island in terms of jurisdiction
    taxes or anything else. We do have full support from our local
    legislature, the city of Taunton, the town of Mashpee, Chambers
    of Commerce, and I think it is pretty clear that the reason the
    state of Rhode Island opposes our bill is because it wants to
    protect its current monopoly on the gaming industry in southern
    New England. It has been successful in using the courts to
    crush the Narragansett Tribe and it now is attempting to use
    Congress to do the same to Mashpee.
        Mr. Gallego. Thank you. Mr. Washburn, in your testimony,
    you mentioned the Patchak Patch, an administrative policy that
    eliminated the 30-day waiting period for implementation of
    land-into-trust decisions. Although trust decisions can be
    challenged through administrative or judicial litigation, this
    policy allowed the land to stay in trust pending the outcome.
        What are the legal ramifications of not having this policy
    in place during the land-into-trust process? And do you know if
    the Trump administration has been receptive to implementing a
    similar policy?
        Mr. Washburn. Thank you, Mr. Chairman. We instituted the
    Patchak Patch, so called, during the Obama administration
    basically so that land would go into trust immediately rather
    than waiting for 30 days. The reason the Federal Government
    originally waited for 30 days was to give people time to
    challenge that and bring litigation if they wanted to do so.
    What we learned was that it was really a delay tactic. People
    would challenge it and litigation would go on for years and
    years and that was just for purposes of delay. Ultimately, the
    United States would win that litigation, but meanwhile the land
    would not have been in trust for as many years as litigation
    went on. So, the Patchak Patch was a way to say, we are going
    to take the land into trust immediately and if there is any
    litigation, it can happen while the land is already in trust.
        My sense is that the Trump administration is revisiting the
    approach that the Obama administration used, and they have been
    trying to do consultations and have discussions around changing
    the land-into-trust rules to make them less favorable for
    tribes. Thank you.
        Mr. Gallego. Thank you, Mr. Washburn. Ms. Routel, other
    than the Mashpee, how many times have you witnessed a tribe
    face challenges to their fee-to-trust applications due to
    Carcieri?
        Ms. Routel. It is really hard to put a number on it because
    there are countless challenges that come at the application
    stage that never make their way into the courts. When we look
    at challenges that have been brought in the Federal courts and
    in front of the Interior Board of Indian Appeals, we are
    talking about some 50 reported decisions at this point. So,
    there has been a large amount of litigation, and a lot of it
    has been litigation that, as Dean Washburn mentioned, we would
    consider to have been brought just to delay tribes that there
    is no doubt that they were under Federal jurisdiction in 1934
    because they appear on some of the very first lists that were
    created of tribes that allowed them to vote on application of
    the IRA and confirm that they either voted on and adopted, or
    disapproved IRA constitutions.
        Mr. Gallego. Ms. Richards, how many other casino or gaming
    enterprises has the state of Rhode Island opposed, either
    through litigation or through legislative manner outside of the
    state of Rhode Island?
        Ms. Richards. To my knowledge, this is the only one, Mr.
    Chairman.
        Mr. Gallego. So, this is the only gaming operation, or
    potential gaming operation, that the state of Rhode Island has
    actively involved, even though we know there are other
    operations that are either coming on-line or have come on-line?
    And is it because this is the only opportunity to have a legal
    recourse using the Carcieri problem and that's why you are not
    using it for other tribes? Or are other gaming institutions
    better funded to be more difficult for the Government of Rhode
    Island to fight them?
        Ms. Richards. No, the Mashpee Reaffirmation Act is an act
    that has a direct economic impact on us, and that is why we are
    here today.
        Mr. Gallego. Right, but there are other gaming institutions
    that also will have a direct economic impact on the state of
    Rhode Island. Has your representation of those institutions--
    has the state of Rhode Island ever opposed, legally, in any
    matter any of those other gaming institutions?
        Ms. Richards. You mean private casinos?
        Mr. Gallego. Yes.
        Ms. Richards. We have not opposed any private casinos to my
    knowledge, and the reason for that is that private casinos
    operate on a more equal footing to Rhode Island's casinos. It
    is much more difficult for Rhode Island's casinos to compete
    against a Federal Indian casino because of the effective tax
    rate.
        Mr. Gallego. I find that a very dubious claim. Thank you.
    And now I would like to recognize our Ranking Member,
    Representative Cook.
        Mr. Cook. Thank you very much. I appreciate the witnesses,
    and just to carry on, Ms. Richards, on the competition from
    other casinos, if you will, and that is kind of the argument
    here. You do have two in Connecticut that are very close to the
    Rhode Island border, right? And I notice they weren't mentioned
    in the threat to the commercial interests of Rhode Island.
    Obviously it is just the Mashpee, is that correct?
        Ms. Richards. The two Connecticut casinos, which are the
    Foxwoods and the Mohegan, they are not far from the Rhode
    Island border. On the other hand, they certainly predate my
    time in office. They predate Carcieri. And they may even
    predate some of our own gaming operations.
        Mr. Cook. I have to be honest with you, I am very
    sympathetic to the tribe in Massachusetts, and I could get
    myself into serious trouble because I usually drive from
    Connecticut to Cape Code in the summer. I am sure I am going to
    have a number of speeding tickets going through Rhode Island if
    I don't handle this correctly. And second, my daughter and son-
    in-law are both graduates of the University of Rhode Island, so
    Thanksgiving is going to be a very interesting time this year.
        But in the testimony that was given, I understand
    commercial interests and everything else, but as somebody who
    taught American History, I am very, very sympathetic to tribes
    and their own identity, and far too often I think so many
    tribes have been on the verge of extinction because of some of
    the things that have happened in the past. I'm from California,
    I know the wars between casinos and gaming and everything else,
    but I still have a tendency to side with the history, the
    heritage, and everything else. Gaming may be a transcendent
    thing, so right now I am very, very sympathetic to the
    testimony that has been given by the Mashpee Indians. I yield
    back.
        Mr. Gallego. Thank you, Ranking Member Cook. I now
    recognize Chairman Grijalva for questions.
        Mr. Grijalva. Thank you very much, Mr. Chairman.
        In response to the Chairman's question you answered the
    direction in which I wanted to ask you as well.
        Ms. Richards, let me just follow up on some questions.
    After the Carcieri decision in 2009 that involved a tribe in
    Rhode Island, ultimately this decision led to the Supreme Court
    ruling that land cannot be taken into trust for tribes
    recognized after the Indian Reorganization Act of 1934, which
    brings us to today, and brings us to Mr. Cole's legislation.
        Why do you believe that land is only afforded to tribes
    recognized before 1934?
        Ms. Richards. To be perfectly honest, Mr. Chairman, I don't
    think there's a great reason why there should be two classes of
    tribes, those under jurisdiction prior to 1934 and those under
    jurisdiction after 1934. For that reason, I have not testified
    against Representative Cole's bill, which is H.R. 375. That
    would extend the IRA to all tribes regardless of when they were
    under jurisdiction.
        I think the state of Rhode Island, if that bill were to
    pass, would really urge a total revamp of the IRA, and the
    revamp would include setting standards for the acquisition of
    tribal trust property, for taking into account the impact of
    trust property on local jurisdictions, for making a system that
    is transparent which has clear and objective standards, gives
    local jurisdictions significant role in the process, a
    substantial role in the process, gives timely notifications to
    jurisdictions----
        Mr. Grijalva. Essentially providing to, in this instance, a
    state degree of veto power over land being taken into trust,
    correct?
        Ms. Richards. Some degree of consultation, just as you, Mr.
    Chairman, seek full consultation between tribes and the Federal
    Government, the state and local jurisdictions would also seek
    to be heavily involved. I think one of the things that----
        Mr. Grijalva. So, you don't see Mr. Keating's legislation
    as complementary to the position that you just said, you don't
    think there should be two standards of tribes.
        Ms. Richards. I do not see it as complementary, no.
        Mr. Grijalva. And correcting what is essentially a
    precedent that does establish two different standards for
    tribes, particularly the issue we are dealing with of land
    being taken into trust?
        Ms. Richards. I think Mr. Cole's bill, H.R. 375, would
    address the parity issue between the pre-1934 Act tribes and
    the post-1934 Act tribes, but I do think a total revamp of the
    IRA to be more responsive to states' interests would be called
    for.
        Mr. Grijalva. I think that that would be significant and I
    think an undercutting of sovereignty trust responsibility if we
    were to establish a precedent that essentially, whether you
    want to call it consultation, but would provide a state or
    another local entity, a municipality, a county, essentially
    veto power over a process that is devoid of those other
    interests.
        Ms. Richards. I don't see it as veto power, but I think it
    is very important to keep in mind the host jurisdiction's
    impacts that arise as a result of a fee-to-trust acquisition.
        Mr. Grijalva. Tomato-tomatoe, but I think it is veto power.
    Let me yield back, Mr. Chairman, and I appreciate the time.
        Mr. Gallego. Thank you Mr. Chairman. And we now recognize
    Representative Keating.
        Mr. Keating. Thank you Mr. Chairman. Attorney Richards, you
    broadened your arguments in your remark to say, basically, that
    all states should be concerned about this. And I just want to
    ask you, we tailored this bill directly from the legislation in
    Gun Lake and the Virginia tribal legislation. So, if this is
    such a concern to all states, did you take any formal
    opposition as a state to those two pieces of legislation?
        Ms. Richards. We did not. I am not familiar with those
    pieces of legislation, unfortunately.
        Mr. Keating. Well, I will tell you that they are almost
    identical to this legislation. And do you happen to know how
    the Rhode Island congressional delegation voted on one of those
    bills?
        Ms. Richards. I don't know.
        Mr. Keating. I will inform you. They were in support of
    those bills, so the congressional delegation from Rhode Island
    supported the very same legislation as this.
        Just another question. Your background in law is one of
    jurisdictions, and you mentioned state jurisdiction and U.S.
    jurisdiction. You can clearly, I think, can't you, know the
    boundaries and jurisdictions of a particular state?
        Ms. Richards. I do know the geographic boundaries of the
    state.
        Mr. Keating. Of a state.
        Ms. Richards. I certainly am aware of those.
        Mr. Keating. Could you say you could define the boundaries
    of America? Of the United States?
        Ms. Richards. I don't really think I understand your
    question.
        Mr. Keating. Do you believe that America, the United
    States, has a boundary around it?
        Ms. Richards. Yes.
        Mr. Keating. Thank you. So, I have a question for you. Can
    you define what you included in your testimony; can you define
    this entity? You said you defined an entity as the ``Rhode
    Island's gaming catchment area.''
        Ms. Richards. Yes.
        Mr. Keating. What is that jurisdiction? What does that
    mean?
        Ms. Richards. Normally when people discuss gaming or any
    kind of casino, they draw a circle around the casino----
        Mr. Keating. What's the circle?
        Ms. Richards. It is a certain geographic circle.
        Mr. Keating. What is it though? You are here.
        Ms. Richards. I think it is about a hundred miles.
        Mr. Keating. So, that is an official boundary? The question
    then--are you aware that Massachusetts already has approved a
    casino in that southeastern Massachusetts area, regardless of
    this?
        Ms. Richards. I am.
        Mr. Keating. So, what you are saying is you don't want this
    particular piece of legislation that will keep a tribe in
    existence versus another one that is already approved by
    Massachusetts that you can't do much about, it is going to have
    the same effect, if not more, on your gaming. So, how could you
    do this to the tribe?
        Ms. Richards. Because as I explained earlier to the
    Committee, Indian gaming operations do not operate on an equal
    footing from private casinos.
        Mr. Keating. You are missing my point here. There is still
    going to be a casino there.
        Ms. Richards. That is right.
        Mr. Keating. And you are saying the biggest reason you are
    here is Rhode Island is going to lose money with those
    Massachusetts plates that come over the border.
        Ms. Richards. What I am saying is that there are impacts on
    Rhode Island from having fee-to-trust conversions. They are not
    limited to casinos. They also include the tax free and tax
    advantage sales of any product. Those tax free and tax
    advantage sales from trust properties affect Rhode Island very
    clearly even though they may not be located within its borders.
        Mr. Keating. So, you are in favor of a casino from
    Massachusetts on the other side of the border then?
        Ms. Richards. Pardon me?
        Mr. Keating. You are in favor, if that is your point, then
    you are in favor of a casino on the other side of the border,
    just not this one. So, Rhode Island's position, the Governor's
    position is that you favor a casino in southeastern
    Massachusetts next to your border.
        Ms. Richards. We are neutral on opposing casinos that
    operate under the same competitive footing as Rhode Island's.
        Mr. Keating. So, just for the record, it is good that the
    Rhode Island people know that you are not opposing a casino on
    the other side of your border and the revenues that might be
    lost according to your arguments. I yield back.
        Mr. Gallego. Thank you Representative Keating. Further
    questions for Ms. Richards.
        Has there been an economic impact study, not on the gaming
    side, but on what you claim is going to be the impact of sales
    of tobacco and other non-taxable goods on the state of Rhode
    Island?
        Ms. Richards. I am not aware of a study that we have
    because we haven't confronted this. In 2002, the Narragansett
    Indian Tribe started the tax advantage sales of tobacco
    products from trust lands within Rhode Island and the state
    took immediate action, but we did not have an impact analysis
    done.
        Mr. Gallego. You do understand why just 1 second ago you
    said, the other reason why we are against this is because of
    non-taxable goods such as tobacco sales. And then when I asked
    you have you done a study what the impact is, you said you
    don't know what the impact would be. So, it makes it very
    difficult for me to understand your position. If you don't
    understand what the impact is, how can you say it is actually
    going to affect Rhode Island? You are just guessing.
        Ms. Richards. Well, the differential between taxed tobacco
    products and untaxed tobacco products is enormous, and I think
    most people----
        Mr. Gallego. Enormous in what sense? Are we talking a
    couple hundred thousand? Million? Two million? Ten million? You
    don't know, but yet you are coming here and testifying and
    somehow making a decision--not you, but obviously at the behest
    of your Government--that that is a reason why to stop the
    Mashpee from actually having recognition. What I am saying is
    if you are going to come here and say that, at least have a
    claim and some money and a study attached it.
        Ms. Richards. We have experienced from our own
    jurisdiction--we haven't done a study because we don't have tax
    free or tax advantage sales going on right now, but we did in
    2003 have them, and we determined for ourselves that it would
    be a serious impact on our tobacco revenues. I cannot, at this
    moment, give you the exact amount of the impact.
        Mr. Gallego. But you can feel comfortable enough to use it
    as an argument to stop this tribe from being federally
    recognized?
        Ms. Richards. Yes, I can.
        Mr. Gallego. Representative Gosar.
        Dr. Gosar. Thank you Mr. Chairman and Republican Leader
    Cook for allowing me to participate in this important hearing
    today. I am especially grateful to Mr. Cook for his leadership
    on the Subcommittee and on these issues.
        The so-called RESPECT Act is an extremely radical proposal
    that would shut down important operations within the Federal
    Government until the lengthy and unrealistic consultation and
    coordination requirements prescribed by the bill are met. It is
    so broad and far-reaching that even the Obama administration
    opposed a nearly identical version of this bill. This bill
    would cause catastrophic harm to local communities and increase
    things like permitting times, negatively impacting grazing,
    responsible energy production, forest thinning and important
    infrastructure projects in that process.
        We all want tribes in local communities to have a way in
    which activities that impact their daily lives, but this bill
    isn't the way to go about that. A better model is the provision
    in the La Paz County Land Conveyance Act that I worked on with
    the Colorado River Indian Tribe to include.
        H.R. 375, the so-called Clean Carcieri Fix, is another bill
    I opposed in its current form. H.R. 375 contradicts a Supreme
    Court ruling and the Indian Reorganization Act of 1934. We have
    seen previous Departments of the Interior take off reservation
    land into trust against the will of states, compacts and local
    communities for the sole purpose of building new casinos.
        This was certainly the case in my state with the Tohono
    O'odham Nation, who covertly acted against its fellow tribes,
    the state of Arizona, and the general public to open an off-
    reservation casino in Glendale. Litigation discovery and audio
    recordings affirmed this shameful conspiracy implemented by the
    Tohono O'odham. I am concerned that H.R. 375, as written, will
    encourage the same future abuse in that regard.
        Finally, H.R. 312 is contrary to current view of the
    Department of the Interior, contradicts a Supreme Court
    decision and aims to reverse Federal court decisions on this
    matter in order to build a massive 400,000 square-foot off-
    reservation gaming complex for the benefit of a Malaysian
    gaming company.
        Besides benefiting this Malaysian company, H.R. 312 has
    close ties and origins associated with corrupt DC lobbyist Jack
    Abramoff and Senator Elizabeth Warren. The Mashpee Tribe paid
    tens of thousands of dollars to Abramoff, and the chairman of
    the tribe at that time was sentenced to 41 months in prison for
    crimes he committed in conjunction with efforts to secure
    Federal recognition. The Mashpee Tribe was not a federally
    recognized tribe until it received an administrative
    recognition in 2007.
        If H.R. 312 is passed, Congress will declare years of
    fighting and victories by local stakeholders as if they never
    happened. Congress will also take the view that current Federal
    law shouldn't apply to the Mashpee Tribe.
        Ms. Richards, you testified that if this massive 400,000
    square-foot off-reservation gaming complex is allowed to be
    built in Massachusetts, the state of Rhode Island will suffer
    significant harm with regards to revenue for education,
    infrastructure, and social programs. Can you elaborate a little
    more on this harm, and reiterate why the Governor and people of
    Rhode Island oppose this bill?
        Ms. Richards. Mr. Gosar, we have conducted an impact
    analysis which I can provide to you. I am not familiar enough
    with the contours of that to talk about it at the moment.
        Dr. Gosar. We would appreciate that. Vice Chairman Baird,
    how will the tribe ever make money from this casino project in
    light of the $450 million debt that the tribe owes in Genting
    which would operate the casino? Is this bill actually a
    financial bail-out for Genting?
        Ms. Baird. It is Vice Chairwoman, Representative.
        Dr. Gosar. I am sorry.
        Ms. Baird. And I would first like to state that for me, as
    a Mashpee Wampanoag woman, mother, grandmother and a leader of
    my community, and as a woman whose blood and bones have been in
    my territory for 12,000 years, I am sitting here today with one
    purpose in mind: to keep the land under my people's feet.
        I also want to state that because the Federal Government
    has forced this tribe and other tribes into two processes that
    are very lengthy and very expensive: (1) the Federal
    acknowledgement process; and (2) the land in trust process for
    which the Federal Government provides no funding to assist
    those tribes, we are forced to enter into agreements and find
    funding to help us get through these processes, and they are
    very expensive. The Federal acknowledgement process alone took
    30 years and cost us millions of dollars, as did the land in
    trust process.
        Dr. Gosar. I find that, Mr. Chairman, a little obvious that
    that service being over $350 million that you will never get
    out from underneath that debt. I yield back.
        Mr. Gallego. Thank you Representative Gosar. Now I would
    like to recognize Chairman Grijalva.
        Mr. Grijalva. Thank you very much.
        Dean Washburn, if Congress does not act on righting this
    wrong Carcieri decision, what do you foresee in the next 10
    years of having this type of decision on the books for Indian
    Country?
        Mr. Washburn. Chairman, it is just going to keep causing
    problems, it is going to keep causing litigation. As my
    colleague Professor Routel testified, it gets brought up in a
    lot of these cases and has to be litigated and you need expert
    witnesses to go out, historians, to go out and gather up a
    bunch of documents and kind of like Vice Chairwoman Baird was
    just talking about, these experts are very expensive and they
    end up causing tremendous delay. And it means that some tribes
    may never get land in trust, and that is really the problem,
    and every tribe deserves to have a homeland.
        Mr. Grijalva. Professor, the same question from your
    perspective, if we don't do this Clean Fix that is before us.
        Ms. Routel. Well, the starkest example is really the tribes
    that were recognized through the OFA process that spent 20, 30
    years to gain that recognition, that expended enormous
    resources, and in all those cases, they had to prove, sometimes
    from historic times all the way to the present that they
    continued to exist. They had to prove that they continued to
    exist socially and politically, that outsiders recognized them,
    and they had to amass an enormous quantity of documents. Yet,
    after standing in line and going through that whole process,
    they are now faced with never having any land into trust.
    Meanwhile, other tribes that were in a similar position were
    recognized by Congress and they all received language in their
    recognition bills that specifically allow them to receive the
    benefits of the IRA, and some of them mandatory trust
    acquisitions.
        What Ms. Richards was saying about tribes, like the Mashpee
    being tax free is a myth in Indian Country. Native people pay
    taxes and tribes do. The Federal Government taxes Indian gaming
    operations. And there are taxes that flow, it's just they won't
    flow to Rhode Island because of those borders.
        But the Mashpee will create 7,000 new jobs; they will give
    $50 million in revenue to the state of Massachusetts. In
    addition to that, there is $100 million in revenues that is
    projected to go to the city that the casino is sited in.
        And this notion of tobacco taxes, the Supreme Court has
    repeatedly held that tribes, when they sell tobacco to non-
    Natives, they actually have to collect a state tax. So, again,
    there will be a tax on those sales, it's just the tax will be
    turned over to the state of Massachusetts.
        The tribes are not at a competitive advantage here. Mashpee
    just wants what every single other tribe in the country has,
    which is a permanent homeland.
        Mr. Grijalva. And the compact with Arizona, all the 22
    tribes and those that do have gaming as part of their
    enterprises, paid to the state. That revenue goes into,
    unfortunately to a what I think is a black hole, but that is
    another story.
        Mr. Chairman, with all due respect, I have to leave for
    amendments on the Floor. The next panel was to discuss the
    RESPECT Act. I apologize for not being here for those
    questions. I will be submitting those in writing to you to
    forward. And to the other panelists that are going to speak to
    that issue, my apologizes. I need to be there. I thought that
    this would go faster than it did. I yield back, and thank you
    very much.
        Mr. Gallego. Thank you Mr. Chairman. If there are no
    further questions, we are going to move on to the second panel.
    All right, excellent.
        Let me again remind the witnesses that under our Committee
    Rules, they must limit their oral statements to 5 minutes, but
    it does not have to be 5 minutes, but the entire statement will
    appear in the hearing record. When you begin, the lights on the
    witness table will turn green. After 4 minutes, the yellow
    light will come on. Your time will have expired when the red
    light comes on and I will ask you to please complete your
    statement. I will also allow the entire panel to testify, minus
    Mr. Washburn who already gave his testimony, before questioning
    of the witnesses.
        Our first witness is going to be Ms. Vanessa Ray-Hodge,
    Partner at--I apologize if I say this incorrectly--Sonosky,
    LLC, and former Senior Counselor to the Solicitor at the
    Department of the Interior; and finally Mr. Matthew Fletcher,
    Professor of Law and Director of Indigenous Law and Policy
    Center at Michigan State University College of Law; as well as
    again Mr. Kevin Washburn.
        The Chair now recognizes Vanessa Ray-Hodge to testify.

    STATEMENT OF VANESSA L. RAY-HODGE, PARTNER, SONOSKY, CHAMBERS,
        SACHSE, MIELKE & BROWNELL, LLP, ALBUQUERQUE, NEW MEXICO

        Ms. Ray-Hodge. Good afternoon, Chairman Gallego and members
    of the Subcommittee. My name is Vanessa Ray-Hodge and I am an
    enrolled member of the Pueblo of Acoma and a partner in the law
    firm of Sonosky, Chambers. I regularly represent Indian tribes
    throughout various tribal consultation processes. I previously
    served as the Senior Counselor to the Solicitor at the
    Interior, and actively participated in numerous Federal-Tribal
    consultations and in the development of the Interior's Tribal
    Consultation Policy. And I have to say from my experience at
    the Interior, tribal consultation doesn't necessarily slow down
    the Federal process if it is done right.
        I support and applaud Congressman Grijalva's bill, which
    would codify the principles of Executive Order 13175 into law
    and establish a legally enforceable consultation obligation for
    all Federal agencies. The United States has a long history of
    enacting policies or authorizing infrastructure development
    projects over the objections of tribes, which has often
    resulted in the destruction of tribal communities and culture.
    Tribal consultation is implemented differently by each
    Executive Department, and the sad reality, especially now, is
    that tribal consultation is often treated as just a box to
    check, or completely ignored.
        But Executive Order 13175 was intended to treat tribes as
    sovereign nations and recognize that the United States had
    policies in the past that placed tribes on reservations,
    oftentimes removing them from their aboriginal homelands where
    many tribes continue to have treaty rights and cultural and
    sacred sites. The ad hoc manner in which consultation is
    implemented by Federal agencies has resulted in frustration by
    Indian tribes and widespread discounting of tribal governments
    and their concerns. This has created an adversarial process
    rather than a cooperative one in which tribes are seen as
    valued partners that can improve the decision-making process in
    a manner that respects tribal rights.
        The RESPECT Act takes a major first step toward changing
    the tribal consultation process in a good way. The Act outlines
    a structured process that aims to ensure that tribes can
    participate fully in consultation, and consultation must occur
    early and often. In my experience, I have often found that
    there is a lack of Federal decision makers who are directly
    involved in consultation. Instead, agency staff often attend
    and they are not authorized or able to answer questions or
    provide meaningful feedback to Indian tribes. Tribes are left
    having a one-sided dialogue and are usually only informed about
    how their concerns were addressed after a final decision is
    rendered. The RESPECT Act would bring a much-needed change in
    this process by requiring a two-way dialogue between Federal
    agencies and tribes.
        An important component that would also help improve the
    consultation process is to require training for Federal
    employees who participate in consultation and to agency
    decision makers. A core objective of tribes during consultation
    is to provide Federal decision makers with context and
    information needed to support informed decisions that protect
    tribal interests. Tribal concerns are often misunderstood or
    overlooked by those without any background in the unique
    history and relationship that the United States has with Indian
    tribes.
        With the right tools, consultation can provide a solid
    foundation for Federal decisions, but Federal agencies must
    recognize and apply these principles. Where Federal actions
    relate to applicants seeking Federal approval for a project,
    the consultation process should also require that applicants
    meet with, consider, and address tribal concerns. There should
    not be an expectation that applicants can ignore tribes and
    just work with Federal agencies. And Federal agencies shouldn't
    be able to hide behind applicants.
        When all parties come together, I have seen positive
    working relationships result, even when it requires
    modifications of a project. And while there might not always be
    agreement, Federal agencies have a trust responsibility to take
    a hard look and deal with tribal concerns. In this regard, the
    Act should specifically recognize Federal agencies affirmative
    obligations to protect tribal treaty resources, sacred sites,
    and trust lands.
        Indeed, in 2006, nine Federal agencies signed an MOU
    recognizing this obligation must be considered when making
    Federal decisions impacting tribal interests. The goal of
    making tribal consultation judicially reviewable is also a
    critical component for accountability. In sum, the draft
    RESPECT Act is a welcome piece of legislation that is long
    overdue.
        I appreciate the opportunity to provide these comments and
    would be happy to answer any questions you may have.

        [The prepared statement of Ms. Ray-Hodge follows:]
    Prepared Statement of Vanessa L. Ray-Hodge, Sonosky, Chambers, Sachse,
             Mielke & Brownell, LLP on the Draft of the RESPECT Act
         By Invitation of the Subcommittee, Not on Behalf of Any Client
        Good Afternoon Chairman Gallego and members of the Subcommittee,
    thank you for the opportunity to provide feedback on the draft RESPECT
    Act. I am Vanessa L. Ray-Hodge, an enrolled member of the Pueblo of
    Acoma and a partner in the law firm of Sonosky, Chambers, Sachse,
    Mielke & Brownell (500 Marquette Ave., N.W., Suite 600, Albuquerque, NM
    87111. Telephone: 505-247-0147). I regularly represent Indian tribes on
    a variety of matters, including working with Indian tribes and Federal
    agencies throughout the tribal consultation process for projects that
    occur on and off Reservation or trust lands. I previously worked as the
    Senior Counselor to the Solicitor at the Department of the Interior and
    actively participated in numerous Federal-Tribal consultations on
    behalf of the Department.
        I support and applaud Congressman Grijalva's bill, which would
    codify the principles of Executive Order 13175 into law and establish a
    legally enforceable consultation obligation for all Federal agencies.
        The United States has a long history of authorizing infrastructure
    development projects over the objections of Indian tribes. This
    abdication of Federal trust and treaty obligations has had devastating
    effects on tribal communities and cultures. Indeed, the most recent
    protest (NODAPL) against the Dakota Access Pipeline near the Standing
    Rock Sioux Reservation brought to light many of the shortfalls of the
    Federal Government's current consultation policy. After the NODAPL
    movement, I worked with the National Congress of American Indians on
    drafting comprehensive Tribal comments relating to the shortfalls of
    the current consultation process and attach those comments here for
    your reference.
        Under the current Tribal consultation framework, Federal permitting
    agencies tend to treat Indian tribes as members of the public, entitled
    to only limited information and the ability to submit comments, rather
    than incorporating tribes into decision-making processes as is done for
    non-Federal governmental entities. But Indian tribes are not members of
    the public. Tribes are sovereign governments that retain their inherent
    rights to govern their own peoples, lands and natural resources. See
    Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-03
    (1999) (Indian tribes' inherent sovereignty empowers them to govern
    their own citizens and territories); Cohen's Handbook of Federal Indian
    Law Sec. 4.01[1] (Nell Jessup Newton ed., 2012) (discussing the
    independent origin of Indian tribes' sovereignty). At a minimum, tribes
    should be respected as governments and their unique relationship with
    the United States acknowledged and appropriately incorporated into
    Federal decision making.
        The draft RESPECT Act takes a major first step toward changing the
    Tribal consultation process in a good way. Currently there are no
    uniform standards or processes for Federal agencies to use when
    initiating Tribal consultation. As a result, agencies do not always
    implement consultation early in the Federal decision-making process or
    ensure that Indian tribes are consulted in a meaningful way. For
    example, what often happens is Federal agencies will engage with
    applicants and make major planning decisions on a project long before
    tribes are consulted. These decisions invariably result in routes or
    project alternatives that will have the greatest impact on Tribal
    lands, treaty rights, and cultural and sacred sites. At that point it
    is almost impossible for tribes to have any meaningful impact
    throughout the consultation process to protect their rights or
    interests. Many of these problems could be resolved if tribes were
    consulted early and applicants were required to listen to Tribal
    concerns before any major decisions on the direction of a project are
    finalized with Federal agencies. The draft RESPECT Act helps address
    these inadequacies for the better.
        Oftentimes, there is a complete lack of Federal decision makers who
    are directly involved in consultation and there is nothing to ensure
    that the full range of Tribal rights and interests are comprehensively
    presented to and considered by decision makers. In many instances,
    agency staff without any decision-making authority are sent to Tribal
    consultations. Staff is usually not able to answer any questions or
    provide meaningful responses to Tribal concerns--rendering Tribal
    consultation just another box to check in the Federal review process.
    Nor is there any mechanism to hold applicants accountable for
    demonstrating why Tribal concerns cannot be resolved.
        The goal of Tribal consultation is not merely to give Indian tribes
    a seat at the table and a chance to be heard. Rather, the core
    objective is to provide Federal decision makers with context,
    information, and perspectives needed to support informed decisions that
    actually protect Tribal interests. Tribal Treaty rights, the Federal
    trust responsibility to tribes, and the environmental justice doctrine
    all must be given meaning and respected in actual Federal decisions
    that impact tribes. Consultation can provide the solid foundation for
    Federal decisions, but the Federal agencies must be willing to
    recognize and apply these principles in their decision making.
        In other words, there are at least two components to ensure that
    Tribal interests are meaningfully considered in Federal decision
    making. First, there must be a comprehensive and properly structured
    process that enables tribes to participate fully. Second, there must be
    a heightened awareness and recognition among Federal decision makers
    about the sources, scope, and significance of Tribal rights, and the
    need to incorporate and protect those rights in Federal decisions. The
    objective is to seek the free, prior and informed Tribal consent where
    fundamental Tribal interests are at stake. Federal decision makers must
    come to understand that it is in the national interest to uphold the
    promises that the United States made in treaties, and to exercise
    discretion consistent with the duties of a trustee to tribes. And this
    understanding must guide every decision that impacts Tribal interests.

        The draft RESPECT Act does a good job at starting to outline a
    uniform process for engaging in Tribal consultation across all Federal
    agencies. However, the Act should specifically mention Federal
    agencies' obligation to protect Tribal treaty resources, sacred sites
    and trust lands. The Act should make clear that Tribal consultation
    triggered by a Federal undertaking that implicates Tribal lands and
    interests is different than Tribal consultation required under Section
    106 of the National Historic Preservation Act. In addition, if a
    Federal undertaking requires the development of an Environmental
    Assessment or Environmental Impact Statement in accordance with the
    National Environmental Policy Act (``NEPA''), the Act should expressly
    provide that Indian tribes whose lands or interests will be impacted
    must be consulted during the environmental review process. Federal
    agencies must also ensure that even where an applicant is performing
    the environmental review under NEPA, affected Indian tribes should be
    joined as cooperating agencies or given an opportunity to meaningfully
    consult with the applicable Federal agencies prior to any finalization
    or approval of the environmental review documents. Tribal concerns and
    objections must be included in any final NEPA document, and Federal
    agencies must be required to explain whether or not Tribal concerns or
    objections were resolved.

        In addition, the Act should provide that all Federal personnel
    whose work involves participating in Tribal consultation are required
    to participate in comprehensive training regarding Treaty rights, the
    trust responsibility, the United States' historical treatment of Indian
    tribes, and the vast differences among Tribal cultures. This kind of
    training already takes place in some situations within the Interior
    Department. The Bureau of Reclamation, for example, has developed a
    training program for its regional offices to learn about the trust
    responsibility and Indian tribes in the context of Indian water
    settlements. The Reclamation training has been successful in large part
    because it is provided by a well-respected Indian law professor and
    Tribal leaders who can speak about the significance of a water
    settlement from the Tribal perspective. This kind of approach needs to
    be implemented more broadly across all agencies that make decisions
    impacting Tribal rights and interests. Training must be required for
    all agency personnel who are involved in projects requiring Federal
    approval where Indian tribes may be affected. Trainings, at a minimum,
    must include:

         Overview of the trust responsibility and unique
                relationship between the United States and Indian tribes.

         Overview of the United States' historical policies
                impacting Indian tribes, including how those policies
                resulted in Indian tribes having significant rights and
                interests in off-reservation areas.

         Tribal perspectives on the importance of the trust
                responsibility.

        These are just a few comments on the draft RESPECT Act, which is a
    welcome piece of legislation that is long overdue. At bottom, Indian
    tribes must be afforded a real opportunity to meaningfully consult with
    Federal agencies--and Federal agencies must be held accountable during
    the consultation process. Even if there is not ultimate agreement,
    Federal agencies have a trust responsibility to consider Tribal
    concerns and explain why any concerns were not addressed.
        I appreciate the opportunity to provide these comments and I look
    forward to working with the Subcommittee and the Committee on
    finalizing the draft. This Act will ensure that the United States
    fulfills its trust responsibility to consult with Indian tribes when
    Federal actions impact Tribal lands or interests. I would be happy to
    answer any questions the Committee may have.

                                     ______

        Mr. Gallego. Thank you Ms. Ray-Hodge. The Chair now
    recognizes Mr. Matthew Fletcher for his testimony.

    STATEMENT OF MATTHEW FLETCHER, PROFESSOR OF LAW AND DIRECTOR OF
     THE INDIGENOUS LAW & POLICY CENTER, MICHIGAN STATE UNIVERSITY
                 COLLEGE OF LAW, EAST LANSING, MICHIGAN

        Mr. Fletcher. Thank you very much, Mr. Chairman, and
    Minority Leader. My name is Matthew Fletcher. I am a citizen of
    the Grand Traverse Band of Ottawa and Chippewa Indians, which
    is located in Michigan, and I am disappointed to see that Mr.
    Grijalva had to step out. I was about to engage in a little bit
    of hero worship.
        My very first trip to Washington, DC, as a lawyer was in
    the late 1990s, right around 20 years ago, and we were here to
    engage in an act of tribal consultation, so to speak. Back in
    those days, the Department of Labor's Wage and Hour Division
    had refused to treat my client, an Indian tribe in Arizona, as
    a state for purposes of minimum wage law. Our fire department
    and our police department, our fire department in particular,
    would be on-call for 48 hours at a time and then they would get
    2 days off, and then they would get another day on. So, the
    Wage and Hour Division was telling us that we owed them 25
    hours of overtime every week, even though most of the
    firefighters, although they were looking for the windmill, I
    had to admit most of the time they spend in the fire station
    was lifting weights.
        I got a chance to meet Mr. Grijalva that day, or that year,
    and talk about this project. That was a bad experience in terms
    of tribal consultation, but I have had some good experiences as
    well as a lawyer and as an advocate.
        Under the Obama administration, in particular, we were
    pleased to see, especially when Mr. Washburn was Assistant
    Secretary, the government worked hard with Indian tribes, and
    they sort of were forced to by the Administrative Procedures
    Act and engaging in some regulation and guidance releases in
    relation to the Indian Tribal Welfare Act, which is a statute
    near and dear to my heart.
        And to be frank, while there is a little bit of litigation
    going on in that case, the regulations that came out and the
    accompanying guidances, probably the best work that has come
    out of Indian Country in relationship with the Federal
    Government that I have seen in the last 20 years. Outstanding
    work. And I think that is because the tribes were on board,
    they participated, and the Federal Government took what they
    said seriously.
        But when it comes to bigger projects where there are other
    issues, other interests that are arrayed against tribes, or in
    opposition to tribes, I think what you see is the perception
    without a statute like the RESPECT Act, with the perception
    from Indian County is always going to be that the Federal
    Government's practice is to consult when they want Indian
    tribes to help back them up with a project they are already
    going to go forward with, and then the tribe's perspective is
    that the Federal Government will not consult, or will do a poor
    job of consulting, when the Federal Government expects
    opposition from the tribes.
        And I just want to harken back to the history of my own
    tribe, which is the Grand Traverse Band, and some of the tribes
    in Michigan. Way back in the day, in the 1830s, we came to
    Washington, DC to negotiate the Treaty of Washington, and our
    tribal leader back in those days was a guy named Aishquagonabe,
    and he negotiated along with the other Michigan Odawa and
    Ojibwe Tribes, a treaty that would guarantee us a homeland,
    that would guarantee us places to go on and off the reservation
    for purposes of hunting, gathering, fishing--obviously
    fishing--and Article XIII of that treaty says that we were
    allowed to enter off-reservation lands until those lands were
    required for settlement.
        And, unfortunately, the first thing that the United States
    did with those ceded territories--they were never really
    settled--was to turn most of those to lease those lands over to
    timber interests. And most of the Lower Peninsula and all of
    the Upper Peninsula of the state of Michigan over the next
    several decades were de-forested. Possibly the greatest source
    of virgin pine in the Great Lakes is all gone. Some of that is
    still at the bottom of Lake Michigan because of timber that
    ships that have sunk in Lake Michigan.
        But when we talk about catastrophic impacts as a result of
    actions taken by the Federal Government, I begin with my own
    tribe's history and this de-forestation. That was our
    livelihood, those forests, and our access to those livelihoods
    until the land was required for settlement were destroyed. We
    were not able to really live in a homeland without access to
    those trees.
        And you can see that throughout Indian Country where there
    has been a history of a lack of consultation. You see the
    flooding of reservations at Three Affiliated, Fort Berthold,
    Seneca Nation and other flooding of reservations. You see dams
    and culverts that have destroyed salmon habitat in the Pacific
    Northwest.
        And I guess I want to conclude with, just to harken back,
    to paraphrase to a Supreme Court case that just came out, and
    Justice Gorsuch's dicta mentioning that Indian tribes, when
    they negotiated treaties, did not just negotiate for the right
    to continue to live, but to continue to live in their way.
    Miigwetch. Thank you very much.

        [The prepared statement Mr. Fletcher follows:]
       Prepared Statement of Matthew L.M. Fletcher, Professor of Law and
      Director of the Indigenous Law and Policy Center at Michigan State
                  University College of Law on the RESPECT Act
                                    summary
        Chairman Gallego and members of the Committee, it is a pleasure to
    testify today on the RESPECT Act, a bill to ensure effective
    consultation between the United States and Indian tribes in regards to
    Federal activities that affect tribal lands and interests.
        Today, I hope to provide an overview of the legal, political, and
    moral obligations of the United States to ensure meaningful
    consultation between the Federal Government and Indian tribes to ensure
    effective consultation between the United States and Indian tribes in
    regards to Federal activities that affect tribal lands and interests. I
    believe the RESPECT Act is a powerful step toward fulfilling that
    obligation. Federal-tribal relations work better as a partnership of
    sovereigns instead of an adversarial relationship where outcomes are
    governed by which sovereign has the superior bargaining position. The
    RESPECT Act is a step on that road to partnership, cooperation, and
    respect between sovereigns.
        In the current of Federal Indian law and policy, known as the self-
    determination era, Congress and the executive branch largely have
    embraced the trust relationship. In every significant Indian affairs
    statute of the last several decades, Congress has acknowledged the
    trust relationship. Unsurprisingly, many Indian tribes thrive under the
    self-determination policy, growing by leaps and bounds in their ability
    to govern. The old era of guardianship where the Federal Government
    made most major decisions for Indian tribes and Indian people is a
    relic of the past. Still, Federal agencies too frequently move forward
    with controversial projects--notably the Line 5 and Back 40 Mine
    projects in the western Great Lakes--without bothering to engage in
    tribal consultation at all.
        Overall, the draft bill is an excellent achievement. The present
    system is dominated by indeterminacy--no one knows exactly what
    constitutes consultation; no one knows definitely when to initiate
    consultation; no one knows exactly what the outcome of consultation is
    supposed to be; and no one knows how to enforce the consultation
    mandate, or whether it is enforceable at all. The indeterminacy
    contributes to the quick breakdown of communication, and a switch from
    cooperation to adversity.
        The discussion draft's specific requirements obligating Federal
    agencies to helpfully document tribal consultation activities will be
    extremely useful. The breadth of the scope of the consultation
    requirement in the discussion draft will also be useful. As Congress is
    aware, many Federal projects are delayed by litigation after the
    breakdown of Federal consultation efforts. A clear process will
    contribute greatly to increased efficiency.
        In conclusion, the RESPECT Act is a major step forward in Federal-
    tribal relations. The Indian nations that entered into treaties with
    the United States--and that petitioned for and received Federal
    acknowledgment by statute or administrative act--always understood the
    duty of protection to be a partnership. Consultation is merely an
    acknowledgment of the respect due to both sovereigns, Federal and
    tribal. Every step the United States takes toward treating Indian
    tribes as partners is a positive step.

        Miigwetch.
                                   statement
        Chairman Gallego and members of the Committee, it is a pleasure to
    testify today on the RESPECT Act, a bill to ensure effective
    consultation between the United States and Indian tribes in regards to
    Federal activities that affect tribal lands and interests.
        I am Professor of Law and Director of the Indigenous Law and Policy
    Center at Michigan State University College of Law, and visiting
    professor at Michigan and Stanford Law Schools later on in 2019. I am a
    citizen of the Grand Traverse Band of Ottawa and Chippewa Indians,
    located in the heart of Anishinaabeki, Peshawbestown, Leelanau County,
    Michigan. Although I do not speak in my official capacity, I should
    note that I am an appellate judge for nine Indian tribes--the Grand
    Traverse Band, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-
    Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi
    Indians, the Hoopa Valley Tribe, the Nottawaseppi Huron Band of
    Potawatomi Indians, the Santee Sioux Tribe of Nebraska, and the Tulalip
    Tribes.
        My hornbook, Federal Indian Law (West Academic Publishing), was
    published in 2016 and my concise hornbook, Principles of Federal Indian
    Law (West Academic Publishing), in 2017. I co-authored the sixth and
    seventh editions of Cases and Materials on Federal Indian Law (West
    Publishing 2011 and 2017), with David H. Getches, Charles F. Wilkinson,
    Robert A. Williams, Jr., and Kristen A. Carpenter. I also authored
    American Indian Tribal Law (Aspen 2011), the first casebook for law
    students on tribal law; The Return of the Eagle: The Legal History of
    the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan State
    University Press 2012); and American Indian Education:
    Counternarratives in Racism, Struggle, and the Law (Routledge 2008). I
    co-edited The Indian Civil Rights Act at Forty with Kristen A.
    Carpenter and Angela R. Riley (UCLA American Indian Studies Press
    2012), and Facing the Future: The Indian Child Welfare Act at 30 with
    Wenona T. Singel and Kathryn E. Fort (Michigan State University Press
    2009). My latest book, On Indian-Hating, will be published by Fulcrum
    Publishing. My most recent law review articles are forthcoming in the
    California Law Review and the Michigan Law Review. I am the primary
    editor and author of the leading law blog on American Indian law and
    policy, Turtle Talk, http://turtletalk.wordpress.com/. I graduated from
    the University of Michigan Law School in 1997 and the University of
    Michigan in 1994.
        Today, I hope to provide an overview of the legal, political, and
    moral obligations of the United States to ensure meaningful
    consultation between the Federal Government and Indian tribes to ensure
    effective consultation between the United States and Indian tribes in
    regards to Federal activities that affect tribal lands and interests. I
    believe the RESPECT Act is a powerful step toward fulfilling that
    obligation. I also hope to provide a snapshot of the universe of cases
    in which tribes bring claims against the Federal Government alleging
    failure to meet consultation obligations.
    I. The Understanding of the Anishinaabeg Treaty Negotiators
        In 1836, the collected Michigan Odawa nations met in Washington DC
    to negotiate a treaty with Lewis Cass and Henry Schoolcraft.\1\ The
    Odawa ogemaag selected Aishquagonabe to speak for the Odawak treaty
    delegation that includes the federally recognized Indian tribes, Grand
    Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands
    of Odawa Indians, and Little River Band of Ottawa Indians, plus the
    Grand River and Burt Lake Odawa bands still seeking Federal
    acknowledgment. [The Ojibwe nations of the eastern Upper Peninsula of
    what is now the state of Michigan selected their own speaker.]
    ---------------------------------------------------------------------------
        \1\ See generally Matthew L.M. Fletcher, The Eagle Returns: The
    Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians
    2-33 (2011).
    ---------------------------------------------------------------------------
        The Odawa nations that negotiated and executed the 1836 Treaty of
    Washington ceded approximately one-third of the land base of the Lower
    Peninsula of what is now the state of Michigan, represented in the land
    cession map drawn by Michigan State University professor Dylan Miner
    and attached to this document as Appendix 1. The Odawa tribes
    negotiated for permanent reservations, a promise the United States
    failed to implement, and for usufructary rights to hunt, fish, and
    gather on the ceded lands until those lands ``were required for
    settlement.'' \2\ As was established in the first decade of this
    century during the inland hunting, fishing, and gathering phase of
    United States v. Michigan,\3\ much of the ceded territory was never
    required for settlement. Much of the ceded territory is north of the
    effective growing season and was therefore not valuable for
    agricultural land. Instead, the Federal Government sold or leased
    almost all the land at pennies on the dollar of the effective market
    rate to private non-Indian timber interests. Private interests
    completely eradicated the virgin timber of the entire Upper and Lower
    Peninsula area.\4\ The economic value of that timber is incalculable.
    Importantly, the deforestation of the ceded territory dramatically
    undercut the ability of Michigan Anishinaabe to live their lives in
    accordance with Mino-Bimaadiziwin.\5\ The forests housed the wildlife
    the Anishinaabe depended upon for food. The forests provided the
    materials for the summer and winter shelter Anishinaabe people
    required. The forests provided the medicines Anishinaabe people
    required. In short, the forests were uniquely critical to the
    livelihoods of the Anishinaabek. The Michigan virgin forests are gone
    and will not return in our lifetimes, in our children's lifetimes, in
    our grandchildren's lifetimes.
    ---------------------------------------------------------------------------
        \2\ Treaty of Washington, Article XIII, 7 Stat. 491 (1836).
        \3\ Fletcher, The Eagle Returns, supra, at 146-47.
        \4\ Robert H. Keller, An Economic History of the Indian Treaties in
    the Great Lakes Region, 4:2 Am. Indian J. 2, 10 (Feb. 1978).
        \5\ See generally Edward Benton-Benai, The Mishomis Book: The Voice
    of the Ojibwe (1979).
    ---------------------------------------------------------------------------
        Imagine a world where the United States consulted with the Michigan
    Odawa nations before giving away the vast Michigan forests to private
    interests. Indian nations could have advised Federal officials what
    those forests meant to the Anishinaabek. Imagine how Indian nations
    could have advised Federal officials how to make the forests
    economically productive while still maintaining a sustainable forestry.
    But no. The forests are gone and they are not coming back. Most of the
    value of that timber left the state. All of the citizens of Michigan
    lost.
        Aishquagonabe and the rest of the Odawa ogemaag negotiated for
    permanent reservations and for the right to continue to use and
    maintain the forests. Ultimately, the United States did not fulfill the
    promise to guarantee permanent reservations, leaving the off-
    reservation rights as the only remaining valuable consideration for the
    Michigan Odawaak. Like other treaty negotiations, the American treaty
    negotiators received massively valuable consideration from the Michigan
    Odawa nations.\6\ In exchange for the cession of their aboriginal
    title, the Odawa nations received deforestation and the eradication of
    their lifeways.
    ---------------------------------------------------------------------------
        \6\ Cf. Washington State Dept. of Licensing v. Cougar Den, Inc.,
    2019 WL 1245535, at *11 (S.Ct., Mar. 19, 2019) (Gorsuch, J., concurring
    in judgment) (``[T]he millions of acres the Tribe ceded were a prize
    the United States desperately wanted.'').
    ---------------------------------------------------------------------------
        The takeaway from this history is that Federal-tribal relations
    work better as a partnership of sovereigns instead of an adversarial
    relationship where outcomes are governed by which sovereign has the
    superior bargaining position. The RESPECT Act is a step on that road to
    partnership, cooperation, and respect between sovereigns.
    II. The Duty to Consult
        Indian tribes and the Federal Government's relationship began as a
    sovereign-to-sovereign relationship grounded in treaty relations.\7\
    There are hundreds of treaties between the United States and various
    Indian tribes. The creation of the treaty relationship between the
    United States and a given Indian tribe is a form of recognition of that
    tribe as a sovereign entity, sometimes referred to as a domestic
    sovereign.\8\ The United States, after all, does not enter into
    treaties with state governments, corporations, or churches, only
    foreign nations and Indian tribes. Indian tribes that do not have a
    formal treaty relationship with the United States, primarily those
    tribes located in California and Alaska, are acknowledged to enjoy the
    same relationship with the Federal Government so long as they are
    federally acknowledged as a tribal sovereign, either through an Act of
    Congress or through the Federal acknowledgment process.\9\
    ---------------------------------------------------------------------------
        \7\ Matthew L.M. Fletcher, Federal Indian Law Sec. 5.3, at 212
    (2016).
        \8\ Fletcher, Federal Indian Law, supra, Sec. 5.3, at 212-15.
        \9\ Fletcher, Federal Indian Law, supra, Sec. 5.1, at 170-75.
    ---------------------------------------------------------------------------
        The treaty relationship imposed a ``duty of protection'' on the
    United States for the benefit of recognized Indian tribes.\10\
    Colloquially, the duty of protection means that the United States as a
    ``superior'' sovereign agrees to protect domestic sovereigns, i.e.,
    Indian tribes. The Supreme Court recognized the duty of protection in
    the Marshall Trilogy of cases.\11\ Unfortunately for Indian tribes, the
    Court analogized the duty of protection to a guardianship.\12\ One
    positive side-effect of that era was the Supreme Court's recognition of
    the duty of protection as an independent source of congressional
    authority to legislate in Indian affairs.\13\ In the modern era, the
    duty of protection is more accurately described as the trust
    relationship.\14\
    ---------------------------------------------------------------------------
        \10\ Fletcher, Federal Indian Law, supra, Sec. 5.2, at 175.
        \11\ Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee Nation v.
    Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832).
        \12\ Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall,
    C.J., lead opinion).
        \13\ United States v. Kagama, 118 U.S. 375, 384 (1886).
        \14\ Fletcher, Federal Indian Law, supra, Sec. 5.2, at 181-94.
    ---------------------------------------------------------------------------
        In the current of Federal Indian law and policy, known as the self-
    determination era, Congress and the executive branch largely have
    embraced the trust relationship. In every significant Indian affairs
    statute of the last several decades, Congress has acknowledged the
    trust relationship.\15\ Unsurprisingly, many Indian tribes thrive under
    the self-determination policy, growing by leaps and bounds in their
    ability to govern. The old era of guardianship where the Federal
    Government made most major decisions for Indian tribes and Indian
    people is a relic of the past.
    ---------------------------------------------------------------------------
        \15\ For a survey of statutes, see Fletcher, Federal Indian Law,
    Sec. 5.2 at 188-94.

    ---------------------------------------------------------------------------
        Or it should be.

        As this body well knows, the United States often must decide
    between many competing interests. Tribal interests in governance,
    lands, sacred sites, historical sites, economic markets, and
    jurisdiction often conflict with private, non-tribal interests, state
    interests, Federal interests, and even the interests of other tribes.
    When the United States must may difficult choices between these
    completing interests, it is all too easy for government officials to
    invoke the old guardian-ward model of Federal decision making involving
    tribal interests. To be fair to Federal officials, the Supreme Court
    has effectively given free reign to Federal agencies to ignore tribal
    interests and sweep away the trust relationship.\16\
    ---------------------------------------------------------------------------
        \16\ Fletcher, Federal Indian Law, Sec. 5.2, at 209-12.
    ---------------------------------------------------------------------------
        In my own experience as in-house counsel for Indian tribes from
    1998 to 2004, I saw both sides of meaningful tribal consultation. On
    one hand, I attempted to negotiate with the Department of Labor on the
    question of whether the Fair Labor Standards Act's minimum wage
    requirements would apply to tribally run public safety departments,
    such as police and fire. At that time (the late 1990s), the
    Department's view was that tribal governments were not governments
    entitled to an exemption under the law, an agency interpretation made
    without contacting affected tribes at all that could have cost
    individual tribes hundreds of thousands or even millions a year.
    Conversely, I worked with the Environmental Protection Agency on behalf
    of two other tribal clients (in the early 2000s) on the implementation
    of the Clean Water and Clean Air Act's authorizations to treat Indian
    tribes as states for purposes of enforcement. The former situation cost
    my tribal client thousands of dollars in attorney fees before the
    government agreed to change its policy decision.
        Great Lakes tribes now are aligning to protect treaty rights in the
    western Great Lakes that are threatened with activities, namely,
    Enbridge Line 5 and the Back 40 Mine. Bryan Newland, the Chairman of
    the Bay Mills Indian Community, described how the EPA gave tribes 10
    days to comment to changes on a settlement agreement favoring the Line
    5 owners, but were not given a copy of the proposed changes at all.
    Bryan Newland, Will the EPA allow the Line 5 Pipeline to remain in the
    Straits of Mackinac? Turtle Talk blog, May 31, 2018, https://
    turtletalk.blog/2018/05/31/will-the-epa-allow-the-line-5-pipeline-to-
    remain-in-the-straits-of-mackinac/.
        In the context of the Back 40 Mine, a Federal judge relieved the
    EPA of its duty to consult under the National Historic Preservation Act
    because the state of Michigan assumed jurisdiction over the mine
    activities.\17\ In both instances, Federal consultation with Indian
    tribes was either nonexistent or minimal. In both the Line 5 and Back
    40 situations, public opinion strongly opposes the projects. The
    RESPECT Act is needed to change the government's understanding of the
    partnership between Indian tribes and the United States when treaty
    rights are at stake.
    ---------------------------------------------------------------------------
        \17\ Menominee Indian Tribe of Wisconsin v. EPA, 2018 WL 6681397
    (E.D. Wis., Dec. 19, 2018).
    ---------------------------------------------------------------------------
        The Federal Government's duty to consult is a critical element to
    the United States' ongoing duty of protection, the basis for the
    general trust relationship.\18\ The duty of consultation is also a key
    element to the duty of free, prior, and informed consent codified in
    the United Nations Declaration on the Rights of Indigenous Peoples.\19\
    ---------------------------------------------------------------------------
        \18\ Colette Routel & Jeffrey Holth, Toward Genuine Consultation in
    the 21st Century, 46 U. Mich. J. L. Reform 417, 420-35 (2013).
        \19\ See generally Study of the Expert Mechanism on the Rights of
    Indigenous Peoples, Free, prior and informed consent: a human rights-
    based approach, A/HRC/39/62, at 5-8 (Aug. 10, 2018); S. James Anaya &
    Sergio Puig, Mitigating State Sovereignty: The Duty to Consult with
    Indigenous Peoples, 67 U. Toronto L.J. 435 (2017).
    ---------------------------------------------------------------------------
    III. Comments on the RESPECT Act Discussion Draft
        Overall, the draft bill is an excellent achievement. The present
    system is dominated by indeterminacy--no one knows exactly what
    constitutes consultation; no one knows definitely when to initiate
    consultation; no one knows exactly what the outcome of consultation is
    supposed to be; and no one knows how to enforce the consultation
    mandate, or whether it is enforceable at all. The indeterminacy
    contributes to the quick breakdown of communication, and a switch from
    cooperation to adversity.
        The discussion draft's specific requirements obligating Federal
    agencies to helpfully document tribal consultation activities will be
    extremely useful. The breadth of the scope of the consultation
    requirement in the discussion draft will also be useful. As Congress is
    aware, many Federal projects are delayed by litigation after the
    breakdown of Federal consultation efforts. A clear process will
    contribute greatly to increased efficiency.\20\
    ---------------------------------------------------------------------------
        \20\ Dean B. Suagee, Consulting with Tribes for Off-Reservation
    Projects, 25:1 Nat. Resources & Env't, 54, 55 (Summer 2010).
    ---------------------------------------------------------------------------
    Treaty Rights
        The discussion draft appears to leave out reference to treaty
    rights. I recommend included explicit reference to treaty rights to
    ensure that treaty rights affected by Federal activities are included.
    Section 4(1) defines ``activities'' broadly, and properly so. Section
    4(A) in particular is broad enough to include most, if not all, tribal
    interests arising from treaty rights. However, recent treaty rights
    litigation such as the culverts case in the Pacific Northwest, the
    pipeline cases in the northern Great Plains and in the Great Lakes
    area, and other treaty rights matters involve the critical treaty right
    to a homeland, originally recognized in the Supreme Court decision
    United States v. Winans.\21\ Federal approvals of projects far from
    reservation lands that have the potential to destroy off-reservation
    resources protected by treaty rights such as clean water and fish
    habitat should require tribal consultation. Explicit reference to
    treaty rights would be helpful to avoid conflict over the scope of the
    duty of consultation.
    ---------------------------------------------------------------------------
        \21\ 198 U.S. 371, 385 (1905).
    ---------------------------------------------------------------------------
    State Government Activities
        Many tribes are frustrated with state governments that are
    implementing Federal programs affecting tribal interests. In some
    instances, the United States has delegated Federal powers to state
    government to effectuate a particular purpose, such as implementing the
    Clean Water Act. Absent the delegation to the state, the United States
    would remain obligated to engage in tribal consultation. The discussion
    draft could be clarified to ensure that states implementing or
    administering Federal programs respect the duty of tribal consultation.
    Section 105(b)--Payment for Tribal Documentation Work
        This section alone would constitute a great advance in Federal-
    tribal relations. Few tribes would choose to divert scarce tribal
    resources to a project in response to the requests of the Federal
    Government to explain the tribe's interest and how that interest might
    be affected by a proposed Federal project. As the cases listed in
    Appendix II indicate, all too often Federal consultation efforts
    devolve into an adversarial situation. Federal money available to
    handle those requests for information is more likely to make a tribe
    respond to consultation inquiries.
        I might suggest expanding this section to include more activities.
    Quick research into tribal laws available at the National Indian Law
    Library's website showed that there are relatively few tribal
    consultation statutes or formal offices for responding to consultation
    requests.\22\ It would be very helpful if there were funding available
    for tribes to develop their own tribal consultation laws and
    consultation offices. As the record shows, many tribes cannot
    efficiently respond to Federal consultation requests, and sometimes
    Federal inquiries go nowhere because there is no formalized tribal
    process. Federal self-determination appropriations could be increased
    to meet that need.
    ---------------------------------------------------------------------------
        \22\ The Rincon Band of Luiseno Mission Indians' tribal
    consultation ordinance (Rincon Tribal Code Sec. 2.800 et seq.) appears
    to be a very good model, and is available here: https://narf.org/nill/
    codes/rincon_luiseno/index.html.
    ---------------------------------------------------------------------------
    Section 401--Judicial Review
        Tribal consultation only works if the government notifies and
    begins consulting with affected Indian tribes prior to the earliest
    stages of a project, a notion that undergirds Section 101 of the
    discussion draft. The survey of cases contained in Appendix II includes
    a few cases where an agency waited until a project was well underway,
    or where an agency went ahead with a project before receiving a
    response from a tribe, or where the agency made no effort whatsoever to
    engage in consultation. There are also cases where a tribe sued an
    agency successfully under another statute, such as the National
    Environmental Policy Act or the National Historic Preservation Act,
    while the tribe's claims under the tribal consultation policy failed.
    In a situation where the agency, for whatever reason, does not consult
    with an Indian tribe but moves forward with a project anyway, judicial
    review is a critical tool for tribes. Section 401 is a great first
    step.
    Survey of Federal Court Litigation over Tribal Consultation
        The table that appears as Appendix II is a non-comprehensive list
    of Federal court cases brought by Indian tribes against Federal
    agencies or Federal officials alleging that the United States failed to
    adequately consult with those tribes. A significant number of these
    cases concluded with injunctions against Federal projects going
    forward, either because of the failure to adequately consult with
    tribes or for some other violation of Federal law raised by the tribal
    plaintiffs, such as the failure to comply with NEPA. It is possible,
    perhaps even likely, that tribal consultation could have addressed the
    issues raised by the tribes.

        In conclusion, the RESPECT Act is a major step forward in Federal-
    tribal relations. The Indian nations that entered into treaties with
    the United States--and that petitioned for and received Federal
    acknowledgment by statute or administrative act--always understood the
    duty of protection to be a partnership. Consultation is merely an
    acknowledgment of the respect due to both sovereigns, Federal and
    tribal. Every step the United States takes toward treating Indian
    tribes as partners is a positive step.
        Miigwetch.

                                     *****

                                  ATTACHMENTS

                                   Appendix I

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                                  Appendix II

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gallego. I want to thank the expert witnesses for their
    testimony. We will now move on to questions. I will start by
    recognizing myself for 5 minutes.
        Ms. Vanessa Ray-Hodge, can you elaborate on how the RESPECT
    Act should be adjusted to protect all tribal treaty resources,
    sacred sites and trust lands? And why is this clarification
    important?
        Ms. Ray-Hodge. I think it is important to have express
    mention in the Act because often agencies don't give serious
    consideration to their dual legal obligations, those
    obligations under their Federal statutes, but also to Indian
    tribes under treaties and Federal case law. So, I think
    oftentimes what happens is because it is not in the top of the
    minds of Federal agencies when they are resolving issues,
    tribal rights are often subjugated, or left out, of the
    balancing of what is the right decision to make, or if
    modifications need to be made in a Federal policy or a project
    to protect those rights. Because at the end of the day, it is
    only Congress that has the authority to diminish tribal treaty
    rights or rights that have been legally recognized by the
    Federal courts for tribes, and so agencies have to take that
    consideration into play, or else they could start trying to
    diminish rights that would be unlawful.
        Mr. Gallego. Thank you very much, Ms. Ray-Hodge. Mr.
    Washburn, this version of the RESPECT Act was expanded so it
    applies to independent Federal regulatory agencies. This was
    due to conversations with tribes that independent agencies were
    ignoring their duty to consult. What is your experience and
    your past dealings with some of these independent agencies when
    it comes to these matters? And should they be included in the
    RESPECT Act?
        Mr. Washburn. Thank you, Chairman. I would say absolutely,
    and that is something that only Congress can do, because
    President Clinton did an Executive Order on tribal consultation
    and Obama did a Presidential Memorandum to further that. But
    the executive branch can't reach independent Federal regulatory
    agencies like you all, so we need Congress to act in the
    RESPECT Act for that purpose. And those independent agencies
    have a very checkered history of working with tribes. Some of
    them do OK sometimes, but they don't have that norm firmly
    established, and if you passed a law, they would have to follow
    that law. I think we would get better results. Indian tribes
    work a lot better when the Federal agencies communicate with
    them well, and Indian tribes and the Federal Government can
    work well together. We have seen that. But it takes careful
    consultation and good communication, and that is what the
    RESPECT Act does. Thank you.
        Mr. Gallego. Thank you, Mr. Washburn. Mr. Fletcher, thank
    you for your in-depth written testimony, especially your
    analysis of how drastically different things might be today for
    Indian Country and America had tribal consultation been applied
    from the beginning. Where do you feel the duty for tribal
    consultation stems from?
        Mr. Fletcher. Well, I think it is actually a constitutional
    duty, and it is certainly rooted in the treaties. You may
    recall that there are as many as 400 treaties between Indian
    tribes and the United States, and those treaties really are the
    creation of a relationship between governments that is a
    partnership.
        As Rob Williams wrote in his book Linking Arms Together on
    the history of the Haudenosaunee Treaties, some of the tribes
    treated those as familial relationships. And we know the
    Supreme Court in the Marshall Trilogy, which is the first
    series of important cases on Indian law from the 1820s and
    1830s referred to this relationship where the United States had
    undertaken a duty of protection to Indian tribes. Most of those
    treaties reference Indian tribes coming under the protection of
    the United States. To this day, that duty of protection really
    is usually described as the general trust relationship. And if
    we treat these management of resources, management of
    government and jurisdictions as a partnership, then every
    single time the United States does take an action or propose an
    action that affects tribes, there should be some consultation
    with that tribal partner.
        Mr. Gallego. Mr. Fletcher, to follow up, the Constitution
    is inherently a government-to-government function, but there
    are times when the Federal Government delegates their powers to
    a state government for a particular purpose, such as
    implementing a Clean Water Act, then the obligation to consult
    gets murky. What should the requirement to consult be in these
    cases?
        Mr. Fletcher. Well, I think if nothing else, Congress could
    certainly require the states when they do agree to implement
    Federal programs through a delegation from Congress, that
    states need to be reminded that they are stepping in the shoes
    of the Federal Government and they have entered into
    obligations under this trust responsibility.
        I look at some of the programs or some of the activities
    undergoing in the Great Lakes right now, like the Back 40 Mine,
    which is depending on Michigan approvals. We have also had the
    Line 5 in the Straits of Mackinac, which is a huge pipeline.
    That literally could be an existential threat to the Great
    Lakes. And much of that is dependent on state action.
        Mr. Gallego. Thank you, Mr. Fletcher. I now recognize the
    Ranking Member, Representative Cook.
        Mr. Cook. Thank you, Mr. Chairman. Listening to the
    testimony and everything else, I am optimistic about this, but
    maybe it is my cynicism because of my old age and insults from
    Don Young--no. This is something that is very, very difficult.
    I worked for the Federal Government and the Marine Corps 26
    years and it seemed as though every year there was a new
    program that we were going to change the Marine Corps, this and
    that. And one of the hardest things is to get it right in any
    of these programs. And it is going to be tough because I think
    we have to change the behavior of the Federal Government, and
    particularly their attitude with Native Americans, Indigenous
    People, because--I am not a member of a tribe, but I would have
    a chip on my shoulder.
        I mean, if you look at all the history over the years, I
    would be very, very careful of anybody from Washington. Don't
    trust them. But if you can have a level playing field, and I
    think you have to establish if this isn't enacted, then I think
    we have to go even further, so that you have the ground rules,
    what you want to accomplish, so it is not a Washington tells
    the tribes what is going on, or I think there is going to be
    resentment of failure.
        And I wanted to get Professor Washburn's, as a member of
    the previous administration, am I being too cynical? Because I
    think it is a great idea, good intentions, everything like
    that, but when you put it in action, it is going to be very,
    very difficult. Do you have any words of wisdom on where we can
    go a little further on this?
        Mr. Washburn. I think tribes and the Federal Government
    work better, they have improved over time and they can work
    well together now, so I think maybe you are a little cynical. I
    think that we can be optimistic. Tribes have become so much
    more sophisticated and so much more capable of self-government
    and exercising sovereignty so much better and so much better
    resourced, and they have become almost equal partners to the
    Federal Government. There are still some paternalistic aspects
    to it, but tribes do a great job and I think that largely the
    improvement is due to tribes, not due to the Federal
    Government.
        Mr. Cook. Oh, I agree with you 100 percent. Maybe you trust
    the Federal Government more than I do, but I guess I shouldn't
    say that. I know we are, but I don't trust myself and I think
    when--wait a minute, I got two--thanks, Don.
        All I am saying is--and I taught American History, a
    professor and all that, maybe that is the problem, I taught too
    much American History and a lot of it was terrible, and I am
    not going to go through everything that has happened to so many
    tribes, so all I am doing is, I will have an open mind on this
    and I appreciate what the Chairman is doing, and just starting
    off with the name of the Act, the RESPECT Act, and this is
    something that doesn't happen for years because if there was
    that respect then I think we could expect better conditions and
    everything else.
        I am not going to go on and on, and I think we can do a lot
    with this, but the one thing I want is not driven so much by
    us, but you have that input from the tribes, a lot of different
    areas and this and that, and that is going to be tough to find
    a common denominator. But let's do it. I yield back.
        Mr. Gallego. Thank you, Ranking Member Cook. I now
    recognize Delegate San Nicolas for questions.
        Mr. San Nicolas. Thank you, Mr. Chair. I appreciate
    everybody being here today to discuss this legislation. I am
    the Delegate from Guam, so I am the Representative of a U.S.
    Territory and my heritage is Chamorro, Indigenous People of
    Guam. We have a lot of close ties to our land as well, and a
    lot of the same challenges that our Indigenous brothers and
    sisters have in the tribes.
        One of our most unique experiences so far has been dealing
    with a military realignment into Guam from Okinawa, moving
    thousands of Marines into the island. And one of the biggest
    challenges has been trying to walk that middle ground with the
    Federal Government in terms of the environmental impact on the
    territory. One of the real advantages that we have had as a
    result of the process, the way the military needs to go about
    doing their process, is they were required to complete an
    environmental impact study before they can even move forward.
        One of the things that I appreciate about this legislation
    is it creates a mandate for agencies to consult with the
    tribes, but I think that we need to maybe look further into
    creating a basis for consultation. For example, I think the
    tribes should probably be able to request, in advance, prior to
    even beginning consultation, that an environmental impact study
    be done with respect to whatever activity the Federal
    Government is looking to undertake.
        And one of the reasons why I would probably recommend that
    is because if you require an environmental impact study upfront
    before the consultations, then you will have a basis for being
    able to go in and actually consult. Otherwise you might be
    sitting down at a table and you are only discussing what they
    share with you, you might not have all the facts in front of
    you. And if there is no EIS, no environmental impact study,
    then you might not know necessarily what to consult about.
        And one of the most powerful things about the EIS that has
    been effective so far, is whenever there were any violations of
    it, we could take the military to court and get the project
    stopped or get injunctions on whatever activities are taking,
    because their EIS, which was mandated to be presented before
    they were able to move forward, their EIS did not include a
    certain component.
        So, this might actually put more empowerment into the
    tribes if before there is even consultation, an official
    Federal environmental impact study needs to be presented with
    respect to whatever activity, if the tribe so requests one to
    be provided in advance of consultation. Because I think a lot
    of the concerns at the tribal level will be similar to the
    concerns of the Chamorro people with respect to environment,
    with respect to how you are impacting our way of life or how
    you are impacting our quality of life. And all of that had to
    be put into the environmental impact study that the military
    had to put together before they began moving forward with the
    military realignment.
        How does the panel feel about perhaps including some kind
    of component like that so that when you walk into these
    consultations that the mandate does require you actually know
    what you are going to be consulting rather than sitting there
    and wondering if they are sharing all of the information or not
    or if you are walking away from the table being fully informed
    and also having fully participated based on all the facts? If I
    could get feedback from the panel, please.
        Mr. Washburn. Delegate, there is a lot of sense in what you
    say because tribes do need to have a lot of information to be
    able to consult effectively. I would probably stop short of
    requiring an environmental analysis or EIS before consultation
    can even start. I would come at it a little differently just to
    say the Federal Government should consult early and often and
    they should continue the consultation as more information
    becomes available, because I wouldn't want to put up an
    artificial barrier to keep the Federal Government from
    consulting with a tribe about something that it is going to be
    doing.
        I used to joke that tribes would get mad at me when I was
    in the government if I came up with an idea in the shower and I
    didn't consult before I toweled off. The tribes want to be
    engaged that much, so if the proposal that you suggest, the
    only worry I have about it is that it would keep the Federal
    Government from going ahead and consulting while they are
    waiting for the EIS to be completed. Thank you.
        Ms. Ray-Hodge. Thank you, Congressman. I actually sort of
    agree with Mr. Washburn because I do think that tribes want to
    be consulted as early as possible when they know something is
    happening. I do think if it is something like an agency policy,
    you wouldn't necessarily do an EIS, but there are lots of
    projects that happen on Federal lands where an EIS is required,
    and what tribes are asking for in the Lower 48 and in Alaska is
    to be cooperating agencies from the start of that EIS document
    being started to the end of it so that they have the
    opportunity for true consultation to get their concerns in.
        Mr. Gallego. Thank you, Delegate San Nicolas. Are there any
    further questions from the panel? Great.
        I thank the witnesses for their valuable testimony, and the
    Members for their questions and time. Members of the
    Subcommittee may have some additional questions for the
    witnesses and we will ask you to respond to those in writing.
    The hearing record will be held open for 10 days for these
    responses.
        If there is no further business before the Subcommittee,
    the Chairman again thanks the members of the Subcommittee and
    our witnesses. The Subcommittee stands adjourned.

        [Whereupon, at 4:17 p.m., the Subcommittee was adjourned.]

                [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

                       LETTERS OF SUPPORT FOR THE RECORD

                            MASHPEE CHAMBER OF COMMERCE

                                                         March 25, 2019

    Hon. Raul Grijalva,
    Hon. Rob Bishop,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: The Mashpee Chamber of Commerce Continues support of the passage of
            the Mashpee Wampanoag Tribe Reservation Reaffirmation Act

        Dear Chairman Grijalva, Ranking Member Bishop, Chairman Hoeven, and
    Vice Chairman Udall:

        We at the Mashpee Chamber of Commerce have read recent news reports
    concerning the movement of H.R. 312 and the effort to fast track this
    bill through the House. We applaud Congress for taking such affirmative
    steps to pass the Mashpee Wampanoag Reservation Reaffirmation Act and
    protect the Tribe's reservation lands. Enclosed please find the support
    letter we submitted to Congress last year in connection with H.R. 5244
    (now, H.R. 312), that voices our strong support for this effort.
        We urge you to continue to move this bill and vote in favor of H.R.
    312.

                Sincerely,

                                              Patrice Pimental,
                                         President, Board of Directors.
                          Office of the Town of Mashpee
                                         Mashpee, Massachusetts

                                                         April 11, 2019

    Hon. Ruben Gallego, Chairman,
    Hon. Paul Cook, Ranking Member,
    House Committee on Natural Resources,
    Subcommittee on Indigenous Peoples of the United States,
    1324 Longworth House Office Building,
    Washington, DC 20515.

    Re: Subcommittee Hearing on H.R. 312, the Mashpee Wampanoag Reservation
            Reaffirmation Act, held on April 3, 2019

        Dear Chairman Gallego, Ranking Member Cook, and Members of the
    Subcommittee:

        On behalf of the Town of Mashpee, Massachusetts, I write to thank
    you for holding the hearing last week on H.R. 312, the ``Mashpee
    Wampanoag Tribe Reservation Reaffirmation Act,'' and respectfully
    submit these comments in support of this vitally important bill. The
    Town has been advocating for Congress to enact this measure since the
    predecessor version of the bill was first introduced in the 115th
    Congress as H.R. 5244, and we fully intend to continue doing so this
    Congress as well.
        The Town of Mashpee and the Mashpee Wampanoag Tribe are old
    neighbors that have enjoyed an ongoing, positive, and productive
    working relationship over the course of many years--a relationship that
    both the Tribe and the Town value very much. The success of our
    longstanding relationship is evidenced in part by the 2008
    Intergovernmental Agreement between the Tribe and the Town, which is
    referenced in the text of H.R. 312. The important jurisdictional and
    other balances that the Tribe and the town negotiated in 2008 are
    expressly recognized and preserved by the bill.
        Aside from the Intergovernmental Agreement, as we stated in our
    comments to the Subcommittee on Indian, Insular, and Alaska Native
    Affairs last Congress, we also wish to emphasize that this legislation
    will help ensure that the Tribe's economic development plans for the
    part of its reservation that lies within the nearby community of
    Taunton will be preserved and serve to stimulate job creation in an
    area that is best suited for it. For this reason as well, the Town
    strongly supports this legislation.
        Above all, the Town of Mashpee believes enactment of H.R. 312 is
    simply the right thing to do. This Act ensures that the Tribe has a
    federally-protected homeland in its historic territory and that it
    enjoys the same rights under Federal Indian law as other federally-
    recognized Indian tribes.
        The Town appreciates the Committee's consideration of our views and
    again urge you to vote in favor of the bill as soon as possible.

                Sincerely,

                                             Rodney C. Collins,
                                                          Town Manager.
                                     Town of Mashpee,
                                   Office of Selectmen,
                                         Mashpee, Massachusetts

                                                           May 22, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: The Town of Mashpee Urges Passage of the Mashpee Wampanoag Tribe
            Reservation Reaffirmation Act (S. 2628 and H.R. 5244)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Town of Mashpee, Massachusetts, I write to express
    our Town's unequivocal support for swift passage of the Mashpee
    Wampanoag Reservation Reaffirmation Act, and toward that end we ask
    that you schedule hearings in your respective Committees of
    jurisdiction as quickly as possible. The establishment of the Mashpee
    Wampanoag reservation in 2015 was very long overdue, and we feel
    strongly that this legislation is needed to protect that reservation.

        The Town and the Tribe are old neighbors and have long had a
    positive working relationship with one another, and that relationship
    has in some ways been memorialized in various agreements and memoranda
    of understanding over the years.

        One of the reasons the Town supports the Mashpee Reservation
    Reaffirmation Act is that we believe it will also help to protect our
    relationship. Indeed, the Town and the Tribe have worked cooperatively
    together to craft a minor proposed amendment to the legislation which
    would further strengthen our agreement with each other, and a copy of
    that proposed amendment is attached. We join with the Tribe in asking
    that the Committees adopt this amendment during the legislative
    process.

        The Town of Mashpee thanks you for the good work you do, and for
    your interest in helping both the Mashpee Wampanoag Tribe and the Town
    of Mashpee move productively into the future. If you have any
    questions, please do not hesitate to contact me directly, or have your
    staff contact the Town's attorney, Patrick Costello, at telephone
    number (XXX) XXX-XXXX with any questions.

                Sincerely,

                                              Carol A. Sherman,
                                                              Chairman.

                                     *****

                                   ATTACHMENT

    (S. 2628; H.R. 5244) Mashpee Wampanoag Tribe Reservation Reaffirmation
    Act, as amended

    To reaffirm the Mashpee Wampanoag Tribe reservation, and for other
    purposes.

    Be it enacted by the Senate and House of Representatives of the United
    States of America in Congress assembled,

    SECTION 1. SHORT TITLE.
        This Act may be cited as the ``Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.''

    SEC. 2. REAFFIRMATION OF INDIAN TRUST LAND.
        (a) In General.--The taking of land into trust by the United States
    for the benefit of the Mashpee Wampanoag Tribe of Massachusetts as
    described in the final Notice of Reservation Proclamation published at
    81 Federal Register 948 (January 8, 2016) is reaffirmed as trust land,
    and the actions of the Secretary of the Interior in taking that land
    into trust are ratified and confirmed.

        (b) Application.--Notwithstanding any other provision of law, an
    action (including an action pending in a Federal court as of the date
    of enactment of this Act) relating to the land described in subsection
    (a) shall not be filed or maintained in a Federal court and shall be
    promptly dismissed.

        (c) Applicability of Laws.--All laws (including regulations) of the
    United States of general applicability to Indians or nations, Indian
    tribes, or bands of Indians (including the Act of June 18, 1934 (25
    U.S.C. 5101 et seq.)), shall be applicable to the Mashpee Wampanoag
    Tribe of Massachusetts and tribal members, provided, however, that to
    the extent such laws and regulations are inconsistent with the terms of
    the Intergovernmental Agreement, dated April 22, 2008, by and between
    the Mashpee Wampanoag Tribe and the Town of Mashpee, Massachusetts, the
    terms of said Intergovernmental Agreement shall control.

                                     ______

                                     City of Taunton,
                                   Office of the Mayor,
                                                    Taunton, MA

                                                           June 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. Doug LaMalfa,
    Hon. Ruben Gallego,
    House Subcommittee on Indian and Alaska Native Affairs,
    Washington, DC 20515.

    Re: The City of Taunton Urges Passage of H.R. 5244, The Mashpee
            Wampanoag Reservation Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
    and Ranking Member Gallego:

        In my capacity as Mayor of the City of Taunton, I write to urge
    Congress to act quickly to protect the Mashpee Wampanoag Tribe's
    reservation lands.

        This Tribe--the one that welcomed the Pilgrims in 1620--deserves to
    have its trust lands, located within its aboriginal territory, secured
    through this legislation. The City of Taunton sees it as a moral
    imperative to ensure that the Tribe is not forced back into landless.

        But it is also a moral and economic imperative for the City of
    Taunton. The City of Taunton has already overwhelmingly approved
    through a city-wide local referendum the Tribe's planned economic
    development. Our partnership with the Tribe will create thousands of
    good-paying jobs--jobs our community desperately needs. And we are
    confident that the economic multiplier effect will lead to the further
    growth of more businesses and ventures, and more revenue to the City.

        We are grateful for the strong bipartisan support the Mashpee
    Reservation Reaffirmation Act has received. We know that your
    leadership is key to ensuring passage of this important legislation.

        I respectfully urge you to support this legislation and move the
    legislation out of your Committee as quickly as possible.

                Sincerely,

                                            Thomas C. Hoye Jr.,
                                                                 Mayor.

                                     ______

      TESTIMONY OF THE HON. THOMAS C. HOYE, JR., MAYOR, CITY OF TAUNTON,
                                 MASSACHUSETTS

     URGING PASSAGE OF THE MASHPEE RESERVATION REAFFIRMATION ACT (S. 5244)

          Hearing Before the Indian, Insular & Alaska Native Affairs
                Subcommittee, House Natural Resources Committee

                                 July 24, 2018

        My name is Thomas C. Hoye, Jr. I am mayor of the City of Taunton,
    Massachusetts. On behalf of our City, I respectfully request that this
    written testimony be included in the record. The health and well-being
    of the City of Taunton and the Mashpee Wampanoag Indian Tribe are
    closely intertwined, and for this reason the City urges the Committee
    to vote favorably on the legislation as soon as possible and to do
    everything within its power to ensure it becomes law in this Congress.
    Background
        The City of Taunton has a population of nearly 57,000 people and is
    located in southeastern Massachusetts. Founded in 1637 by members of
    the Plymouth Colony, the City is located squarely within Wampanoag
    traditional historical territory.

        Our City has a long history of successful economic development. The
    Taunton Ironworks was established in 1656 and operated for more than
    two hundred years. In the 19th century, we also became home to famous
    silversmithing companies, include some still known today, like Reed &
    Barton. Other famous manufacturers operating in Taunton beginning in
    the 19th century included the Weir Stove Company, the Field Tack
    Company, Mason Machine Works, Taunton Locomotive Works, and Whittenton
    Mills. Our location on the Taunton River made our City a major shipping
    point before the railroads were built, and afterwards Taunton became an
    important railroad hub for the transportation of agricultural goods and
    industrial products.

        Unfortunately, in more recent years, our manufacturing industries
    have suffered and diminished, and our City and our region has not been
    able to benefit from the same economic improvement as we see in other
    parts of the Commonwealth of Massachusetts and other parts of the
    United States. The impact on our City and its infrastructure is
    palpable.
    Close Working Relationship With the Mashpee Wampanoag Tribe
        The City and the Tribe have a close working relationship. The City
    and the Tribe have entered into an agreement under which, among other
    things, the Tribe will pay the City a share of net revenues generated
    from slot machines, the Tribe will make PILOT payments to the City, and
    the Tribe will pay for all up-front infrastructure costs. The agreement
    contemplates over fifteen million dollars in one-time mitigation
    improvements and over four million dollars in annual recurring
    mitigation payments to the City, as well as a minimum of eight million
    dollars per year of slot machine revenue. (Please See Exhibit A:
    Intergovernmental Agreement By and Between the Mashpee Wampanoag Tribe
    and the City of Taunton, dated May 17, 2012, and, Amendment to
    Intergovernmental Agreement, dated March 13, 2013)
    Economic Importance to the Entire Southeastern Massachusetts Region
        The litigation that has raised technical legal objections to the
    creation of the Tribe's reservation threatens thousands of much needed
    jobs, jeopardizes critical traffic infrastructure that would benefit
    the entire region, and prevents the Commonwealth from collecting
    hundreds of millions of dollars in revenue that could be going to
    education and economic development that would benefit all of us. This
    project will stimulate strong economic growth for the City of Taunton
    and the region and provide many needed jobs at a time when projects of
    this magnitude are few and far between. The Casino will supplement
    Taunton's budget with an anticipated over $13 million dollars a year
    that would enable us to hire badly needed police officers,
    firefighters, teachers, and, to fund well overdue public infrastructure
    projects.
    We Urge Congress to Enact the Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act
        The Tribe's economic development plan has the overwhelming support
    of the City of Taunton, as demonstrated by the public referendum vote
    with 63 percent of those casting ballots voting in favor of the
    proposed Casino. (Please see Exhibit B: City of Taunton 6/9/2012
    Special Election Official Results) The City's residents know that a
    tribal gaming facility located on the portion of the Tribe's
    reservation that abuts our City will create thousands of good paying
    jobs, upwards of $75 million in local and state tax revenue, and
    another $15 million in desperately needed infrastructure improvements.
    And the economic multiplier effects for area businesses would be
    tremendous.

        Our schools, police and fire departments also need a boost in
    revenue. Cities across the state will benefit from the development that
    the Tribe has sought to do. We need Congress' help to protect the
    Tribe, protect the people of Taunton, and to protect southeastern
    Massachusetts from the negative consequences of seemingly endless
    litigation about otherwise meaningless technical legal issues.

        In sum, not only is passing the Reservation Reaffirmation Act the
    right thing to do for the City economically, it is also the right thing
    to do considering the Tribe's long-standing ties to Taunton and the
    surrounding area going back thousands of years, and the fact that it
    was the Wampanoag people that made the settlement of our state possible
    because of their hospitality.

        For these reasons, we urge Congress to enact this legislation as
    quickly as possible.

                                     ______

                      Taunton Area Chamber of Commerce,
                                         Taunton, Massachusetts

    Hon. Ruben Gallego, Chairman,
    Hon. Paul Cook, Ranking Member,
    House Subcommittee on Indigenous Peoples of the United States,
    Washington, DC 20515.

    Re: The Taunton Area Chamber of Commerce Urges Swift Passage of the
            Mashpee Wampanoag Tribe Reservation Reaffirmation Act

        Dear Chairman Gallego and Ranking Member Cook:

        On behalf of the Taunton Area Chamber of Commerce, I am writing to
    respectfully urge the House Natural Resources Committee and its
    Subcommittee on Indian, Insular and Alaska Native Affairs, to work to
    enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
    5244 and S. 2628). We commend the Committee for scheduling a hearing to
    hear testimony on this important legislation and we respectfully
    request to submit testimony for the hearing record.

        As we expressed in our June 7, 2018 letter to this Committee, the
    establishment of the Mashpee Wampanoag Tribe's reservation has brought
    the promise of significant economic development that will not only
    benefit the Mashpee Wampanoag Tribe but the entire Taunton Community.
    H.R. 5244 will ensure that the Tribe's reservation is protected and
    secure economic growth in the southeast region for years to come.

        The construction and operation of the Tribe's planned casino and
    resort will create nearly 7,000 jobs. Additionally, the operation of
    the casino and resort will revitalize existing businesses in the
    surrounding areas and incentivize the creation of new ventures that
    will provide even more jobs for residents. The operation of the casino
    and resort will also bring more than just jobs to our community. The
    Tribe has committed to $30 million in upgrades to the Taunton water
    system and roadways and $10 million per year to local first responders
    and Taunton city services.

        Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation
    Act is critically important to the economic future of Taunton, and we
    urge this Committee to act swiftly to support the enactment of this
    legislation.

                Sincerely,

                                                   Kerrie Babin

                                     ______

                     TESTIMONY IN OPPOSITION FOR THE RECORD

                  TESTIMONY OF THE HON. DAVID N. CICILLINE AND

                           THE HON. JAMES R. LANGEVIN

           REPRESENTATIVES IN CONGRESS FROM THE STATE OF RHODE ISLAND

        Good afternoon Chairman Gallego, Ranking Member Cook, and members
    of the House Committee on Natural Resources' Indigenous Peoples
    Subcommittee. Thank you for allowing us to submit our testimony today
    to express our strong opposition to H.R. 312, the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act. H.R. 312 would allow the Mashpee
    Wampanoag Tribe to open a casino in Taunton, Massachusetts. The bill
    would not only overturn a 2018 decision by the U.S. Department of
    Interior and reverse a 2016 ruling by the U.S. District Court in
    Massachusetts, but it would also deliver a devastating blow to Rhode
    Island's economy.

        The Mashpee Wampanoag Tribe was federally recognized in 2007 after
    the Tribe hired former lobbyist and convicted felon Jack Abramoff.
    Prior to that time, the Tribe's application for Federal recognition had
    not been acted upon since it was originally filed in the 1970s. In
    2009, the U.S. Supreme Court ruled in Carcieri v. Salazar that the
    Federal Government could only take land into trust for tribes that were
    recognized when the Indian Reorganization Act passed in 1934. In 2015,
    the U.S. Department of Interior defied the 2009 Supreme Court ruling
    and unjustly took land into trust for the Mashpee Tribe using a novel
    and flawed methodology. A year later, residents of Taunton,
    Massachusetts sued in U.S. District Court and won to stop the U.S.
    Department of the Interior from taking land into trust for the Tribe.
    In 2018, the U.S. Department of the Interior reviewed the Mashpee
    application pursuant to the correct legal methodology and summarily
    rejected the Tribe's application in a thorough and well-reasoned
    decision. The Mashpee Tribe, backed by a Malaysian Gaming Company, is
    now looking to Congress to reverse major Federal court decisions and
    the recent ruling by the U.S. Department of the Interior.

        If H.R. 312 were to become law, it would have a devastating impact
    on Rhode Island's economy. The Twin River and Tiverton casinos generate
    over $300 million in revenue, representing the third largest source of
    revenue for Rhode Island. The revenue from the casino industry in Rhode
    Island helps fund education and infrastructure programs. Our state
    would suffer tremendously if Congress passed H.R. 312 by allowing the
    Mashpee Wampanoag Tribe to build a casino on our border.

        While we are primarily concerned about the impact this bill will
    have on our state, we are also concerned about the precedent it will
    set. If Congress grants the Mashpee Tribe this exception, it would
    encourage other tribes to seek individual relief from Congress. Instead
    of Congress picking winners and losers, we believe that Congress should
    look at updating the Indian Reorganization Act of 1934 to make the land
    to trust process more transparent and fair.

        Last, we are concerned by the haste in which this bill was nearly
    brought to the Floor last week under suspension without a hearing or a
    markup. We thank Chairman Gallego and Ranking Member Cook for taking
    the time to have a hearing on this controversial bill today. A bill
    that overturns decisions by the U.S. Department of the Interior, U.S.
    Supreme Court, and U.S. District Court should go through the entire
    Committee process before being brought to the House Floor for vote
    under regular order.

        Thank you again for the opportunity to express our opposition to
    H.R. 312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

                                     ______

    Submissions for the Record by Rep. Keating

                               LETTERS OF SUPPORT

                                Akiak Native Community,
                                                  Akiak, Alaska

                                                           June 5, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe
            Reservation Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, the Akiak Native Community, I write today to
    ask that you support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act, which are now pending in the House
    Natural Resources Committee--Subcommittee on Indian, Insular, and
    Alaska Native Affairs, and in the Senate Indian Affairs Committee. This
    bipartisan bill is broadly supported in Indian country and is urgently
    needed in order to ensure that the Mashpee Reservation, located within
    the Mashpee Tribe's traditional homelands, is not disestablished due to
    a technicality.

        The Mashpee Reservation was established in accordance with the
    Indian Reorganization Act and with the strong support of the local
    community. However, this reservation is now being threatened by
    litigation that could soon return the Tribe to landlessness--something
    that the IRA was enacted to prevent. As you know, tribal land allows
    tribes to protect their cultures, provide public services to their
    members, and engage in economic development. By reaffirming the status
    of the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act will ensure that these essential components of self-
    determination are preserved.

        We respectfully request that Congress fulfill its trust
    responsibility to the Mashpee Tribe by enacting the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act. Thank you for considering this
    request and for the work you do for Indian country.

                Respectfully submitted,

            Ivan M. Ivan, Chief           Michael Williams, Sr., Tribal
                                          Council

            Moses Owen, Tribal Council    Sam Jackson II, Tribal Council
                                       Apache Alliance,
                                                 Scottsdale, AZ

                                                           May 16, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf the member tribes of the Apache Alliance, we are writing
    to express our support for the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act (H.R. 5244 and S. 2628). As a federally recognized
    Indian Tribe, the Mashpee Wampanoag Tribe should be entitled to the
    same benefits under the Indian Reorganization Act as are other
    federally recognized tribes. Yet because of a legal technicality, the
    Mashpee Wampanoag Tribe's federal reservation is under attack in the
    federal courts and could be disestablished by later this year--
    something the federal government has not allowed to happen since the
    Termination Era.

        Congress's plenary authority over Indian issues is the only thing
    standing between the Mashpee Tribe's reservation and the Tribe's return
    to landlessness. We urge the Senate Indian Affairs Committee, and the
    House Natural Resources Committee and its Subcommittee on Indian and
    Alaska Native Affairs, to hold hearings on these bills and vote them
    out of Committee as quickly as possible. You have the power to prevent
    this Tribe from suffering yet another historical wrong.

                Sincerely,

                                                  Jeff Haozous,
                                                             President.
                Affiliated Tribes of Northwest Indians,
                                                   Portland, OR

                                                           June 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of our organization, the Affiliated Tribes of Northwest
    Indians (ATNI) representing over fifty tribes in the northwest, we
    respectfully urge that the Senate Indian Affairs Committee, and the
    House Natural Resources Committee and its Subcommittee on Indian and
    Alaska Native Affairs, do everything possible to ensure swift enactment
    of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
    and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Respectfully,

                                               Leonard Forsman,
                                                             President.
                       Big Valley Band of Pomo Indians,
                                                   Lakeport, CA

                                                           May 10, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                                  Anthony Jack,
                                                       Tribal Chairman.
                            Cheyenne River Sioux Tribe,
                                      Eagle Butte, South Dakota

                                                           June 4, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to respectfully request that you
    take all necessary action to ensure that the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
    soon as possible. This is an urgent matter, as the Mashpee Tribe's
    reservation is in danger of being taken out of trust, despite strong
    local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would be the first time in modern history that a reservation is
    disestablished, and would result in the Mashpee Tribe becoming
    perpetually landless. Congress must exercise its plenary authority to
    ensure that the Mashpee Tribe and its reservation land is protected.
    The Mashpee Tribe, like all other federally recognized tribes, should
    be entitled to a federally protected reservation where it can exercise
    its sovereignty, protect its culture, and engage in self-determination.
    Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

        Thank you and if you have any questions please feel free to contact
    me at: XXXXXXXXXXXXXXX.

                Sincerely,

                                             Harold C. Frazier,
                                                              Chairman.
            The Chippewa Cree Tribe of the Rocky Boy's
                                           Reservation,
                                             Box Elder, Montana

                                                        October 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Please Support the H.R. 5244/S. 2628, Mashpee Wampanoag Tribe
            Reservation Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, the Chippewa Cree Tribe, I write today to
    ask that you support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act, which are now pending in the House
    Natural Resources Committee--Subcommittee on Indian, Insular, and
    Alaska Native Affairs, and in the Senate Indian Affairs Committee. This
    bipartisan bill is broadly supported in Indian country and is urgently
    needed in order to ensure that the Mashpee Reservation, located within
    the Mashpee Tribe's traditional homelands, is not disestablished due to
    a technicality.

        The Mashpee Reservation was established in accordance with the
    Indian Reorganization Act and with the strong support of the local
    community. However, this reservation is now being threatened by
    litigation that could soon return the Tribe to landlessness--something
    that the IRA was enacted to prevent. As you know, tribal land allows
    tribes to protect their cultures, provide public services to their
    members, and engage in economic development. By reaffirming the status
    of the Mashpee Reservation, the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act will ensure that these essential components of self-
    determination are preserved.

        We respectfully request that Congress fulfill its trust
    responsibility to the Mashpee Tribe by enacting the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act. Thank you for considering this
    request and for the work you do for Indian country.

                Sincerely,

                                                  Harlan Baker,
                                   Chairman of the Chippewa Cree Tribe.
     Fort Sill--Chiricahua--Warm Springs--Apache Tribe,
                                               Apache, Oklahoma

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                                  Jeff Haozous,
                                                       Tribal Chairman.
        The Grand Traverse Band of Ottawa and Chippewa
                                               Indians,
                                              Peshawbestown, MI

                                                     September 26, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for H.R. 5244, the Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        In 1980, the Grand Traverse band of Ottawa and Chippewa Indians
    (GTB) became the first federally recognized tribe under the CFR Part 83
    process. These administratively promulgated federal rules to recognize
    an Indian tribe have their origins in the Congressional Indian Policy
    Review Commission findings in the 1970s that the federal government had
    purposely or negligently neglected its trust obligation to primarily
    historic Midwest and Eastern Tribes. GTB, like many Indian tribes, had
    been administratively terminated by federal policy and, as a result,
    the federal trust relation between GTB and the United States was
    diminished, but never terminated. As part of the findings in the
    historic Indian Policy Review Commission, the Secretary of the Interior
    was congressionally directed to promulgate federal rules to recognize
    Indian tribes that had been neglected by variable and inconsistent
    administration of federal Indian policy over time.

        The Mashpee Wampanoag Tribe is substantially similar to the Grand
    Traverse Band of Ottawa and Chippewa Indians in its history of neglect
    by the federal government. That history of neglect by the United States
    should not now be used to categorically determine an arbitrary date
    under federal law tied to the Indian Reorganization Act (IRA). Without
    a question, the Mashpee Wampanoag Tribe is an Indian tribe. The
    circumstances of Mashpee's relation to federal Indian law is largely a
    result of federal Indian policy, which is not controlled by the Mashpee
    tribe, indeed, the federal government by its neglect controlled the
    federal Indian law relationship between Mashpee and the federal
    government. GTB suffered a similar fate of neglect.
        GTB urges Congress to recognize the inequities of an arbitrary date
    created by the IRA and to therefore extend the benefits of federal
    Indian law to the Mashpee Wampanoag by the enactment of H.R. 5244, the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act. The enactment of
    H.R. 5244 would be a measure of historical justice to the Mashpee based
    upon its previous historical neglect by the federal government.

                Sincerely,

                                     Thurlow ``Sam'' McClellan,
                                                       Tribal Chairman.
                           Guidiville Indian Rancheria,
                                                    Talmage, CA

                                                           June 7, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of our Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. We are acutely and
    painfully aware of the importance of this, having had our reservation
    lands illegally terminated by the federal government over 60 years ago.
    Despite our best efforts, we have yet to recover a usable trust land
    base. The process to acquire new lands in trust is long, difficult,
    expensive and wrought with anti-Indian organizations obstructionist
    tactics and litigation. The result of no land base on all aspects of
    the Tribe is absolutely devastating, and we can testify to this fact
    first hand.

        We understand the Mashpee Tribe's reservation, which was
    established with the strong support of surrounding local governments,
    but is now threatened by litigation brought by a NIMBY group based on
    technical legal issues. Addressing this situation is the perfect
    opportunity for the United States to demonstrate and perform its trust
    responsibility to the Tribe by using its lawmaking authority to protect
    the Tribe from such unethical attacks. We strongly urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                               Merlene Sanchez,
                                                    Tribal Chairperson.
                                      Hualapai Tribe,
                             Office of the Chairperson,
                                         Peach Springs, Arizona

                                                       October 17, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Hualapai Tribe, we respectfully urge that the
    Senate Indian Affairs Committee, and the House Natural Resources
    Committee and its Subcommittee on Indian and Alaska Native Affairs, do
    everything possible to ensure swift enactment of the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                      Damon R. Clarke, Chairman
                                                Hualapai Tribal Council
                          Jena Band of Choctaw Indians,
                                                Jena, Louisiana

                                                            May 9, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Jena Band of Choctaw Indians, a federally
    recognized Tribe in Louisiana and long time member of the United South
    and Eastern Tribes, we respectfully urge that the Senate Indian Affairs
    Committee and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs work diligently and do
    everything legally possible to ensure the swift enactment of the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S.
    2628).

        We believe every federally recognized tribe in the United States is
    entitled to a federally protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation, which was established with the strong support of
    surrounding local governments and which I have visited, is threatened
    by litigation brought by a NIMBY group based on, as I understand it,
    technical legal issues. We urge Congress to use its plenary authority
    and enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act to
    ensure that the Mashpee Tribe is not forever rendered perpetually
    landless.

                Sincerely,

                                               B. Cheryl Smith,
                                                          Tribal Chief.
      Lac Vieux Desert Band of Lake Superior Chippewa
                                     Tribal Government,
                                           Watersmeet, Michigan

                                                           June 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act

        Dear esteemed members of Congress:

        I am writing on behalf of Lac Vieux Desert Band of Lake Superior
    Chippewa Indians to advocate for the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628). We strongly urge
    the Senate Indian Affairs Committee, and the House Natural Resources
    Committee and its Subcommittee on Indian and Alaska Native Affairs, to
    utilize their plenary power and ensure the reaffirmation of the Mashpee
    Tribe's Reservation.

        The Mashpee Wampanoag Tribe is a federally recognized tribe with a
    reservation located within its historical homeland in Massachusetts.
    This reservation was established in accordance with the Indian
    Reorganization Act and with strong local government support. The
    Mashpee Tribe has been successful in rebuilding and providing for its
    members, as well as establishing great relationships with surrounding
    local governments. The Mashpee Tribe's reservation is threatened by
    litigation that could disestablish the reservation, which has not
    happened since the Termination era.

        The Mashpee Tribe is not asking for new or special rights, only the
    reaffirmation of its reservation. If Congress does not exercise its
    plenary authority, the Mashpee Tribe's reservation and means of self-
    sufficiency will be lost. This is consistent with the federal
    government's trust obligations to federally recognized tribes. Please
    enact this important legislation.

                Sincerely,

                                           James Williams, Jr.,
                                                       Tribal Chairman.
                             Lower Brule Sioux Tribe,
                                 Tribal Administration,
                                                Lower Brule, SD

                                                           June 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for H.R. 5244/S. 2628, Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act

        Dear esteemed members of Congress:

        I am writing on behalf of the Lower Brule Sioux Tribe to advocate
    for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
    5244 and S. 2628). We strongly urge the Senate Indian Affairs
    Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, to utilize their
    plenary power and ensure the reaffirmation of the Mashpee Tribe's
    Reservation.

        The Mashpee Wampanoag Tribe is a federally recognized tribe with a
    reservation located within its historical homeland in Massachusetts.
    This reservation was established in accordance with the Indian
    Reorganization Act and with strong local government support. The
    Mashpee Tribe has been successful in rebuilding and providing for its
    members, as well as establishing great relationships with surrounding
    local governments. The Mashpee Tribe's reservation is threatened by
    litigation that could disestablish the reservation, which has not
    happened since the Termination Era.

        The Mashpee Tribe is not asking for new or special rights, only the
    reaffirmation of its reservation. If Congress does not exercise its
    plenary authority, the Mashpee Tribe's reservation and means of self-
    sufficiency will be lost. This is consistent with the federal
    governments trust obligations to federally recognized tribes. Please
    enact this important legislation.

                Sincerely,

                                              Boyd I. Gourneau,
                                                              Chairman.
                             Mashantucket Pequot Tribe,
                                           Ledyard, Connecticut

                                                           June 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to support the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628). I
    understand that this is an urgent matter for the Mashpee Tribe and that
    they have strong local government support for the creation of its
    reservation.

        I further understand that the threat to the Mashpee Tribe's
    federally protected lands is the result of litigation brought by a
    small group of individuals, challenging the Tribe's reservation.
    Congress should exercise its plenary authority to ensure that the
    Mashpee Tribe and its reservation land are protected. The Mashpee
    Tribe, like all other federally recognized tribes, should be entitled
    to a federally protected reservation where it can exercise its
    sovereignty, protect its culture, and engage in self-determination.
    Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

                Sincerely,

                                                 Rodney Butler,
                                                              Chairman.

                         CONGRESS OF THE UNITED STATES

                Stand with the Tribe who welcomed the Pilgrims:

                 Support H.R. 312, the Mashpee Wampanoag Tribe

                         Reservation Reaffirmation Act

        Dear Colleague,

        We write to ask for your support for H.R. 312, the Mashpee
    Wampanoag Tribe Reservation Reaffirmation Act. This bipartisan
    legislation would require the Department of the Interior (DOI) to keep
    the Mashpee Wampanoag land, approximately 320 acres in Massachusetts,
    in trust as federally recognized reservation land. The Mashpee
    Wampanoags have called southeastern New England home for more than
    12,000 years. In fact, they were the tribe who welcomed the Pilgrims
    and helped to ensure their survival during their first winter in
    Plymouth, Massachusetts.

        Our country has a long, tragic history of disadvantaging Native
    American tribes. It took a nearly 40-year legal battle for the Mashpee
    Wampanoag Tribe to become federally recognized in 2007, which finally
    granted the Tribe access to important federal resources to help protect
    centuries of culture, provide adequate employment and housing, and
    ensure access to essential services like law enforcement, native
    language programs, pre-K education, and more.

        However, the Supreme Court's decision in Carcieri v. Salazar just
    two years later called the status of the Mashpee Wampanoag Tribe--and
    the status of tribes around the country--into question. Additionally,
    the Mashpee Wampanoag Tribe has been uniquely affected. A 2018 decision
    by the DOI to reverse its support for the Tribe has left them
    vulnerable to the unprecedented fate of having their land taken out of
    trust and losing access to these critical resources. Without the
    straightforward fix in H.R. 312, the Tribe could cease to exist.

        All other federally recognized tribes in New England have
    congressionally ratified land claim settlements in which reservations
    were set aside for those tribes. Their reservations, therefore, are
    protected and not at any risk. The Mashpee Wampanoag Tribe is the only
    federally recognized New England tribe for which Congress has not taken
    action to create and protect a reservation.

        By passing H.R. 312, Congress will not only be protecting the Tribe
    whose ancestors helped ensure the survival of the Pilgrim settlement,
    it will protect all Native American tribes by sending a strong message
    that Congress does not approve of any efforts to undermine the
    statutory federal recognition of tribes throughout the country.

        Although there has been some negative representation of what H.R.
    312 seeks to accomplish, the legislation does not provide the Mashpee
    Wampanoag Tribe with any new or special rights. Rather, it simply
    ensures the Mashpee Wampanoag Tribe is no longer vulnerable to having
    its land taken out of trust, and the Tribe is treated equally alongside
    other Native American tribes so it can care for its members and protect
    its legacy. This action is not without precedent, as Congress has
    previously acted in similar situations to protect tribal lands. H.R.
    312 mirrors language recently enacted as parts of the Gun Lake Trust
    Land Reaffirmation Act (P.L. 113-179) and the Thomasina E. Jordan
    Indian Tribes of Virginia Federal Recognition Act of 2017 (P.L. 115-
    121).

        H.R. 312 has received widespread support from Native American
    communities across the country, including:

         Pantribal Organizations including the National Congress of
                American Indians, the United South and Eastern Tribes, the
                Apache Alliance, the Rocky Mountain Tribal Leaders Council,
                the Affiliated Tribes of Northwest Indians, the Midwest
                Alliance of Sovereign Tribes, the Native American Rights
                Fund, the National Indian Gaming Association, and the
                Native American Finance Officers Association

         Individual Tribes including the Akiak Native Community
                (Alaska), the Tohono O'odham Nation (Arizona), the Pascua
                Yaqui Tribe (Arizona), the San Carlos Apache Tribe
                (Arizona), the Tonto Apache Tribe (Arizona), the Hualapai
                Tribe (Arizona), the Mechoopda Indian Tribe (California),
                the Big Valley Band of Pomo Indians (California), the
                Sycuan Band of the Kumeyaay Nation (California), the
                Guidiville Indian Rancheria (California), the Mashantucket
                Pequot Tribe (Connecticut), the Mohegan Tribe
                (Connecticut), the Nez Perce Tribe (Idaho), the Jena Band
                of Choctaw Indians (Louisiana), the Grand Traverse Band of
                Ottawa and Chippewa Indians (Michigan), the Lac Vieux
                Desert Band of Lake Superior Chippewa (Michigan), the
                Chippewa Cree Tribe of the Rocky Boy's Reservation
                (Montana), the Shinnecock Indian Nation (New York), the
                Spirit Lake Tribe (North Dakota), the Ft. Sill Apache Tribe
                (Oklahoma), the Otoe Missouri Tribe of Indians (Oklahoma),
                the Narragansett Indian Tribe (Rhode Island), the Yankton
                Sioux Tribe (South Dakota), the Cheyenne River Sioux Tribe
                (South Dakota), the Lower Brule Sioux Tribe (South Dakota),
                the Ute Indian Tribe (Utah), the Suquamish Tribe
                (Washington), the Stockbridge-Munsee Band of Mohican
                Indians (Wisconsin), the Oneida Nation (Wisconsin), and the
                St. Croix Tribe of Chippewa Indians (Wisconsin)

        Thank you for your attention to this bipartisan legislation as we
    work to support the existence of the Mashpee Wampanoag Tribe. If you
    have any questions or concerns about this legislation, please contact
    Michael Wertheimer with Rep. Keating at (XXX) XXX-XXXX. Should the
    opportunity arise, we respectfully urge you to vote Yes on passage of
    this legislation.

                Sincerely,

            William R. Keating            Joseph P. Kennedy, III
            Member of Congress            Member of Congress

            Richard E. Neal               James P. McGovern
            Member of Congress            Member of Congress

            Stephen F. Lynch              Katherine M. Clark
            Member of Congress            Member of Congress

            Seth Moulton                  Ayanna Pressley
            Member of Congress            Member of Congress

            Lori Trahan
            Member of Congress
                   The Commonwealth of Massachusetts,
                                  Massachusetts Senate,
                                                     Boston, MA

                                                         August 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. Doug LaMalfa,
    Hon. Ruben Gallego,
    House Subcommittee on Indian and Alaska Native Affairs,
    Washington, DC 20515.

    Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
            5244 and S. 2628)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
    and Ranking Member Gallego:

        I write to you today in support H.R. 5244 as an economic stimulus
    to our state and region. The construction and operation of the First
    Light Resort and Casino by the Mashpee Wampanoag Tribe will bring a
    significant economic impact to the Southeastern Massachusetts economy,
    providing stable and good paying jobs for years to come. Through
    partnerships with local businesses, the Tribe has showed an exceptional
    commitment to revitalizing the entirety of the local and regional
    economy, and the immediate creation of nearly 7,000 rests on their
    success in this endeavor.

        I would like to thank the Committee for holding a hearing on this
    matter, and respectfully request that this legislation be passed.

                Sincerely,

                                                  Nick Collins,
                                                       State Senator,
                                                First Suffolk District.
                 The Commonwealth of Massachusetts,
                                Massachusetts Senate,
                         Office of the Minority Leader,
                                                     Boston, MA

                                                         August 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. Doug LaMalfa,
    Hon. Ruben Gallego,
    House Subcommittee on Indian and Alaska Native Affairs,
    Washington, DC 20515.

    Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
            5244 and S. 2628)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
    and Ranking Member Gallego:

        Job creation and sustainable economic development are crucial to
    the continued growth of the Southeastern Massachusetts region. The
    construction and operation of the First Light & Casino by the Mashpee
    Wampanoag Tribe will bring a much needed boost to struggling
    Southeastern Massachusetts economy. The bipartisan Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) will ensure
    that the Tribe's reservation is protected, and will secure economic
    growth in Southeastern Massachusetts for years to come. I applaud the
    Committee for scheduling a hearing on this important legislation and I
    respectfully request that this letter be submitted for the hearing
    record.

        The Tribe has worked to build partnerships with many local
    businesses to facilitate the construction of the First Light Resort &
    Casino. These partnerships will help to revitalize and strengthen the
    Southeastern Massachusetts community. All of this vital economic
    development for Southeastern Massachusetts is now at risk due to
    bureaucratic red tape and technical legal issues that are blocking the
    Tribe from moving ahead with the casino and resort.

        If H.R. 5244 passes, construction of the casino and resort could
    resume immediately, instantly creating jobs for residents of
    Southeastern Massachusetts. The construction and operation of the
    casino and resort will create nearly 7,000 jobs. Additionally, the
    operation of the casino and resort will revitalize existing business in
    Southeastern Massachusetts and incentivize businesses to come to the
    community. I urge this Committee to support economic development in
    Southeastern Massachusetts by working to secure passage of H.R. 5244.

                Sincerely,

                                                 Bruce E. Tarr,
                                                       State Senator,
                                                       Minority Leader.
                   The Commonwealth of Massachusetts,
                              House of Representatives,
                                        State House, Boston, MA

                                                          July 25, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. Doug LaMalfa,
    Hon. Ruben Gallego,
    House Subcommittee on Indian and Alaska Native Affairs,
    Washington, DC 20515.

    Re: The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
            5244 and S. 2628)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman LaMalfa,
    and Ranking Member Gallego:

        Job creation and sustainable economic development are crucial to
    the continued growth of the Southeastern Massachusetts region. The
    construction and operation of the First Light Resort & Casino by the
    Mashpee Wampanoag Tribe will bring a much needed boost to the
    struggling Southeastern Massachusetts economy. The bipartisan Mashpee
    Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628)
    will ensure that the Tribe's reservation is protected and secure
    economic growth in the Southeastern Massachusetts region for years to
    come. I applaud the Committee for scheduling a hearing on this
    important legislation and I respectfully request that this letter be
    submitted for the hearing record.

        The Tribe has worked to build partnerships with many local
    businesses to facilitate the construction of the First Light Resort &
    Casino. These partnerships will help to revitalize and strengthen the
    Southeastern Massachusetts community. All of this vital economic
    development for Southeastern Massachusetts is now at risk due to
    bureaucratic red tape and technical legal issues that are blocking the
    Tribe from moving ahead with the casino and resort.

        If H.R. 5244 passes, construction of the casino and resort could
    resume immediately, instantly creating jobs for residents of
    Southeastern Massachusetts. The construction and operation of the
    casino and resort will create nearly 7,000 jobs. Additionally, the
    operation of the casino and resort will revitalize existing business in
    Southeastern Massachusetts and incentivize businesses to come to the
    community. I urge this Committee to support economic development in
    Southeastern Massachusetts by working to secure passage of H.R. 5244.

                Sincerely,

                                          Bradley H. Jones Jr.,
                                                       Minority Leader.
                   The Commonwealth of Massachusetts,
                              House of Representatives,
                                        State House, Boston, MA

                                                         March 27, 2019

    Hon. Ruben Gallego, Chairman,
    Hon. Paul Cook, Ranking Member,
    House Subcommittee on Indigenous Peoples of the United States,
    Washington, DC 20515.

    Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act, H.R. 312

        Dear Chairman Gallego and Ranking Member Cook:

        I am writing to urge the House Natural Resources Committee and its
    Subcommittee on Indigenous Peoples of the United States to support the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

        The establishment of the Mashpee Wampanoag Tribe's reservation has
    brought the promise of significant economic development that will not
    only benefit the Mashpee Wampanoag Tribe but the entire southeastern
    Massachusetts region. It will ensure that the Tribe's reservation is
    protected and secure long-term economic growth in the entire region for
    years to come.

        The construction and operation of the Tribe's planned casino and
    resort will create nearly 7,000 jobs. Additionally, the operation of
    the casino and resort will revitalize existing businesses in the
    surrounding areas and incentivize the creation of new ventures that
    will provide even more jobs for residents. The operation of the casino
    and resort will also bring more than just jobs to our community. The
    Tribe has committed to $30 million in upgrades to infrastructure in the
    region and $10 million per year to local first responders and municipal
    services.

        Passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation
    Act is critically important to the economic future of southeastern
    Massachusetts and we urge you and this Committee to act swiftly to
    support the enactment of this legislation.

                Sincerely,

                                             Shaunna O'Connell,
                                                  State Representative.
                   The Commonwealth of Massachusetts,
                              House of Representatives,
                                        State House, Boston, MA

                                                         March 27, 2019

    Hon. Raul Grijalva, Chairman,
    Hon. Rob Bishop, Ranking Member,
    House Committee on Natural Resources,
    Washington, DC 20515.

        Dear Chairman Grijalva and Ranking Member Bishop:

        Wuneekeesuq. I am the State Representative for the Third Barnstable
    District in Massachusetts, that includes the town of Mashpee. I am
    writing to urge the House Natural Resources Committee to move H.R.
    312--The Mashpee Wampanoag Tribe Reservation Reaffirmation Act to the
    floor of the House as soon as possible. H.R. 312 will confirm the
    status of the tribe's reservation.

        The Mashpee Wampanoag Tribe has longstanding positive relationships
    with local communities surrounding its reservation. The Mashpee
    Wampanoag Tribe's ancestors taught the Pilgrims how to survive and farm
    the land. Leaders of the tribe formed an alliance with the Pilgrims,
    and the very first Thanksgiving was a Wampanoag feast joined by the
    Pilgrims to celebrate a successful fall harvest. That feast provided an
    enduring lesson of what can come from people of different backgrounds
    sitting down together and authentically listening to each other.

        Over the centuries, the tribe has endured challenges brought about
    as a result of settlement and development. These challenges have been
    overcome with a sense of purpose and identity, and the tribe was
    officially recognized by the federal government in 2007. The town of
    Mashpee and the Mashpee Wampanoag Tribe have worked together to build a
    relationship of mutual respect and recognition as is evidenced by the
    town's support for H.R. 312.

        Much of the dialogue around tribal recognition and land in trust
    has surrounded the development of a resort casino and the economic
    benefits to the Wampanoag and Southeastern Massachusetts. While this is
    definitely an important factor, it should not be the sole reason for
    reaffirming the reservation status. The lands currently in trust are a
    small representation of the aboriginal homeland of the Wampanoag
    people. The People of the First Light have sustainably lived on this
    land for over 12,000 years. Reaffirmation of land in trust by the U.S.
    Congress would be a clear message that also reaffirms the dignity and
    identity of a culture that predates the American experiment.

        As for the economic benefits of H.R. 312, the construction and
    operation of the tribe's planned casino and resort will create nearly
    7,000 jobs that will benefit residents of Southeastern Massachusetts.
    Furthermore, the operation of the casino and resort will rejuvenate
    existing businesses in the surrounding areas and help to bring further
    development to our communities.

        The Mashpee Wampanoag Tribe is an important partner to local
    governments with the shared goal of creating a prosperous Southeastern
    Massachusetts community. Passage of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act will not only serve to benefit
    Southeastern Massachusetts, it will reaffirm the culture and identity
    of a people who helped settle the Commonwealth of Massachusetts. As my
    Wampanoag friends would say, that in and of itself is Wuneeshkeety
    (Good Medicine). I urge the Committee to favorably release this
    legislation and work toward its enactment.

                Kutaputunumuw,

                                               David T. Vieira,
                                                  State Representative.
            General Society of Mayflower Descendants,
                                 The Mayflower Society,
                                                   Plymouth, MA

                                                         March 26, 2019

    Hon. Nancy Pelosi,
    Speaker of the House
    12th District, California

        Dear Speaker Pelosi:

        The General Society of Mayflower Descendants requests your support
    for H.R. 312, a bill designed to provide federal protection for Mashpee
    Wampanoag reservation lands that were designated for the Tribe by
    action of the US Department of the Interior in 2015. This legislation
    enjoys bipartisan support, including key members of the House Natural
    Resources Committee.

        The decision by the Department of the Interior to hold the Tribe's
    land in trust was based on a lengthy and arduous process which
    demonstrated, among other things, that these 321 acres in Massachusetts
    were just a tiny part of the homeland originally held by the ancestors
    of the Mashpee Wampanoags. We find it to be unconscionable that on
    September 7, 2018, the Interior Department reversed that decision,
    based on their interpretation that the Tribe was not ``under federal
    jurisdiction'' in 1934.

        You may know that in March 1621 our ancestors and the ancestors of
    the Mashpee Wampanoags formulated an agreement of mutual support. That
    peaceful agreement lasted for over fifty years, outliving all of those
    who signed it or who witnessed its creation, and allowing Plymouth
    Colony to survive. Among the signers was Governor John Carver for the
    Pilgrims and Massasoit, Osamequin, the Great Sachem of the Wampanoags.
    Terms of that agreement spelled out that King James would esteem
    Massasoit as his friend and ally. The agreement is a worthy precedent
    to be followed today by all who honor the Pilgrims and the Native
    Americans who created this critical part of American society.

        The General Society of Mayflower Descendants is composed of 30,000
    members, each of whom has proven lineage from the Mayflower Pilgrims.
    We have members in all fifty states, Canada, and around the world. It
    is no stretch to state that none of us would be here today without the
    historically documented help that the people of the Wampanoag Tribe
    gave to our ancestors. Part of our organization's purpose is to
    perpetuate the memory of the Pilgrims' accomplishments. Upholding the
    spirit of their agreement with their neighbors honors that purpose.

        On behalf of our members I urge you to support H.R. 312 to
    guarantee the Mashpee Wampanoag Tribe the protection of their lands,
    which is an important element of their self-determination as a Tribe.
    Thank you for your consideration of this request.

                Sincerely,

                                     George P. Garmany, Jr. MD,
                                                      Governor General.
             Mechoopda Indian Tribe of Chico Rancheria,
                                                      Chico, CA

                                                         April 30, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                             Dennis E. Ramirez,
                                                              Chairman.
                  Midwest Alliance of Sovereign Tribes,
                                                    Gresham, WI

                                                          June 13, 2018

    Hon. John Hoeven,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Hoeven:

        The MAST office understands and respects these key issues that you
    are working on day to day for Indian Country!

        We respectfully, ask that the Senate Indian Affairs Committee, the
    House Natural Resources Committee and it's Subcommittee on Indian and
    Alaska Native Affairs take all action to ensure enactment of the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act--H.R. 5244 and S.
    2628.

        All Federally recognized tribes in the United States should be
    holding federally protected lands labeled Reservations where all
    Nations recognize and respect each other's Sovereignty!

        We ask Congress to use its plenary authority to ensure that the
    Mashpee Wampanoag Nation is not forever rendered perpetually landless
    by enacting H.R. 5244 and S. 2628.

                Respectfully,

                                                 Scott R. Vele,
                                                    Executive Director.
                                     The Mohegan Tribe,
                                                 Uncasville, CT

                                                           June 6, 2016

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: The Mohegan Tribe Supports the Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Mohegan Tribe of Indians of Connecticut, I
    respectfully request that the Senate Indian Affairs Committee, and the
    House Natural Resources Committee and its Subcommittee on Indian and
    Alaska Native Affairs, do everything possible to ensure enactment of
    the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
    and S. 2628).

        The Mashpee Tribe is the only federally recognized tribe in the
    Northeast that does not have a land claim settlement. As a result,
    unlike other tribes with such settlements, Mashpee had no alternative
    but to rely on the general land acquisition authority provided in the
    Indian Reorganization Act (IRA) to establish a reservation. The Mashpee
    Tribe's reservation is located within Mashpee's traditional homelands,
    and was established in accordance with the IRA and with the strong
    support of surrounding local governments. Unfortunately, the existence
    of this reservation is now threatened by litigation based on technical
    legal issues. These technical legal issues could lead to the
    disestablishment of Mashpee's reservation--the first time an Indian
    reservation would be disestablished since the Termination Era.

        A land base is a foundational component of tribal sovereignty and
    provides the space for tribes to maintain our cultural identities and
    build our economies. The Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act reaffirms that status of the Tribe's reservation so
    that the Tribe can continue to provide vital services to its members,
    protect its culture, and expand its economy to provide for future
    generations.

        We urge Congress to employ its plenary authority to enact the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
    the Mashpee Tribe is not forever rendered continually landless.

                Sincerely,

                                  Kevin P. Brown, 'Red Eagle'',
                                                              Chairman.
                                                 NAFOA,
                                                 Washington, DC

                                                          July 20, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation
            Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        NAFOA is a national organization representing tribal governments
    with the mission of building and sustaining economic and community
    development. In furtherance of that mission, we are writing to express
    our support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
    Act (H.R. 5244 and S. 2628) and respectfully urge its swift enactment.

        Lands are integral to tribal sovereignty, cultural identity, and
    for building institutions and economies that foster the well-being of
    tribal citizens. The U.S. Department of the Interior (DOI) has
    exercised its authority under the Indian Reorganization Act (IRA) \1\
    to restore tribal homelands following devastating Federal actions
    including removal, allotment, and relocation policies. Over the last
    several decades, restoration of homelands has enabled tribes to provide
    essential government services to tribal members and develop their
    communities. Any uncertainty regarding the status of tribal lands will
    harm tribal governments' ability to make independent self-determined
    decisions and provide for the well-being of its citizens--two
    fundamental rights of any sovereign.
    ---------------------------------------------------------------------------
        \1\ Indian Reorganization Act of 1934, 25 U.S.C. ch. 14, subch. V
    Sec. 461 et seq.

        The Department of Interior issued a decision on September 18, 2015
    to take approximately 321 acres of land into trust on behalf of the
    Mashpee Wampanoag Tribe of Massachusetts. A subsequent legal challenge
    to the decision threatens tribal sovereignty and the Mashpee Wampanoag
    Tribe's ability to make important decisions affecting its members. The
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act will provide
    much-needed certainty regarding the status of the tribe's newly
    restored lands and allow the tribe to go forward in providing necessary
    ---------------------------------------------------------------------------
    services to tribal members.

        We urge Congress to use its authority to restore Mashpee Wampanoag
    Tribe's lands through the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act. Please feel free to contact me if you have questions
    or need further information.

                Sincerely,

                                               Dante Desiderio,
                                                    Executive Director.
                             Narragansett Indian Tribe,
                                      Charlestown, Rhode Island

                                                         March 26, 2019

    Hon. David Cicilline,
    Hon. Jim Langevin,
    U.S. House of Representatives,
    Washington, DC 20515.

    Re: Mashpee Wampanoag Reservation Reaffirmation Act

        Dear Congressmen:

        The Narragansett Indian Tribe wrote to Congress last year, and
    would like to take this opportunity to reiterate our strong support for
    the Mashpee Wampanoag Reservation Reaffirmation Act (currently H.R.
    312, formerly H.R. 5244).

        This emergency legislation was crafted in an effort to prevent the
    Mashpee Wampanoag Tribe from the threat of losing their reservation
    lands. It also addresses the significant damage that has plagued the
    Mashpee Wampanoag Tribe by commercial casino companies that have chosen
    to challenge the status of the Wampanoag Tribe's reservation for no
    other apparent reason than their own financial gain. The Wampanoag
    Tribe has been forced to lay off workers and cut programs; with the
    unfortunate truth being that more layoffs and program cuts are on the
    horizon if their reservation cannot be protected. This has inevitably
    become a moral issue for the United States; the entirety of Indian
    Country is watching and collectively poses the question--Will the
    United States of America honor its word to the Wampanoag Tribe and
    Protect their reservation?

        It should be noted that both the Wampanoag Tribe and this
    respective Bill are strongly supported by the state government's with
    closest proximity to the Tribe's Reservation; the Town of Mashpee and
    the City of Taunton.

        We urge you to vote in favor of H.R. 312.

        I thank you for your time with this matter.

                Respectfully,

                                          Anthony Dean Stanton,
                                                          Chief Sachem.

                 TESTIMONY OF CHIEF SACHEM ANTHONY DEAN STANTON

                           NARRAGANSETT INDIAN TRIBE

      ``Indigenous Peoples Legislative Hearing'' on H.R. 312, H.R. 375 and

                                  RESPECT ACT

                                 April 3, 2019

        On behalf of the more than 2,700 members of the Narragansett Indian
    Tribe, I write to express our Tribe's support for two measures
    introduced in the 116th Congress: H.R. 312, the ``Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act,'' and H.R. 375, a measure to
    reaffirm the authority of the Secretary of the Interior to take land
    into trust for Indian Tribes under the Indian Reorganization Act. The
    Narragansett Indian Tribe also endorses Natural Resources Committee
    Chairman Raul Grijalva's discussion draft measure, the ``Requirements,
    Expectations, and Standard Procedures for Executive Consultation with
    Tribes'' or the ``RESPECT Act,'' a measure to prescribe procedures for
    effective consultation and coordination by Federal agencies with
    federally recognized Indian Tribes concerning actions of the Federal
    Government that impact Tribal lands and interests to ensure that
    meaningful tribal input is an integral part of the Federal decision-
    making process.

        This Subcommittee, and the 116th Congress, must decide whether the
    economic interests of the State of Rhode Island should dictate Federal
    Indian policy for the Nation and the millions of American Indians and
    Alaska Natives, most of whom live at or below the poverty level. In the
    17th Century, the ancestors of the Mashpee Wampanoag Tribe and the
    Narragansett Indian Tribe extended friendship and protection to the
    European immigrants who struggled to survive on our lands. The roles of
    their respective descendants are now reversed. We ask whether the
    United States, in the 21st Century, will return the favor and protect
    the descendants of the Mashpee Wampanoag and us, the Narragansett. We
    are confident in the ultimate outcome. Dr. Martin Luther King once said
    that the moral arc of the universe is long, but it bends toward
    justice. The question is how many years will we and other Tribes have
    to wait.

        The history of the Narragansett Indian Tribe in what today is Rhode
    Island is well established. Although we have existed in Rhode Island
    for millennia, we regained Federal acknowledgement only in 1983, after
    a century of effort, through the cumbersome Federal Acknowledgement
    Process (FAP). It was the Narragansett that granted Roger Williams
    asylum and safe haven as he fled from Plymouth and the Massachusetts
    Bay colonies. With the assistance and protection of our Tribal
    ancestors, Canonicus and Miantonomi, Williams was able to establish
    Providence Plantations in 1636 as a haven for religious tolerance and
    peaceful coexistence with our ancestors. Roger Williams, a minister and
    theologian, advocated honorable dealings with our Tribe.

        What would Roger Williams make of the current leaders of the State
    of Rhode Island, their representatives in Congress, and the testimony
    presented to the Subcommittee today on behalf of its Governor--opposing
    the right of the Mashpee Wampanoag Tribe to retain in Federal trust a
    321-acre Tribal homeland for their members in Taunton, Massachusetts,
    and provide essential governmental services--for the stated reason that
    Rhode Island claims a 100-mile economic zone of interest around its two
    de facto State casinos in Lincoln and Newport, Rhode Island.

        Those who lack empathy for the plight of others do not govern well.
    They use tactics of divide and conquer and are forever pitting ``us''
    against ``them.'' By ignoring the universal and unalienable right of
    all people to ``life, liberty, and the pursuit of happiness,'' they
    stand astride history and the unrelenting progress of a Nation and its
    people to better themselves. It was true of the Civil Rights movement
    and it is true of the latest ``Indian Wars'' over Carcieri, gaming and
    other land-into trust issues.

        It will take the leadership of the House Natural Resources
    Committee, its Chairman, Ranking Member, and members, and the entire
    Congress, to push aside those who would stifle and suppress the
    aspirations of Native Americans to improve their condition. State
    officials will bitterly fight, as they have done for decades, to keep
    the economic competitive advantage they have gained at the expense of
    Native Americans. The Mashpee Wampanoag Tribe are their latest victim.
    There are 535 State representatives serving in Congress. All of them
    are also Federal trustees who must honor the Nation's treaties and
    Federal laws enacted for the benefit of Indian tribes. With unity and
    courage, the Nation can do better for Indian tribes.

        If Rhode Island prevails in defeating passage of H.R. 312, the
    State, with just over one million people, will set back by a generation
    the aspirations of millions of the American Indians and Alaska Natives
    who seek community stability and economic development opportunities
    that can only occur if Congress reaffirms, once and for all, that
    Tribal trust lands are in fact trust lands and a Tribe's homeland that
    the United States will defend and safeguard for generations. Tribal
    trust lands allow federally recognized Indian Tribes to provide
    essential government services to underserved and poverty-stricken
    Tribal communities with Federal funds--services which often depend on
    the trust status of the land.

        Mashpee Wampanoag Vice Chairwoman Jessie Little Doe Baird
    eloquently described the dire consequences her members face if the
    trust status of their reservation is lost as a result of litigation
    brought for the sole purpose of undermining the Tribe's sovereign
    status and leaving Mashpee the only New England Indian Tribe without a
    reservation.

        Why is self-determination and self-governance so important to
    Native people? As noted above, most Indian tribes struggle to provide
    core governmental services to their members. We American Indians, by
    any measure, fall well below our non-Indian fellow Americans in health
    status and life expectancy, economic status, and living conditions
    (housing, schools, drinking water and wastewater systems, broadband and
    other utilities, law enforcement and public safety, hospitals and
    clinics, and other essential services). Tribal lands, held in trust by
    the United States, empowers tribes and afford us the opportunity to
    establish infrastructure, a key requirement for promoting community
    stability--which every people seek.

        In other words, Tribal lands are an essential ingredient that
    allows us to maintain and perpetuate cultural, social and religious
    practices that help define us and give us our Tribal identity as a
    separate and distinct people who wish to exercise self-determination.
    It is the aspiration of all people to be free and independent.

        This Committee need only look back to the 105th Congress in 1998
    when it considered important amendments to the Indian Self-
    Determination and Education Assistance Act (ISDEAA), Pub. L. 93-638, to
    understand the importance of Tribal self-governance. The ISDEAA, first
    enacted in 1975, was landmark legislation that ushered in the modern
    era of Federal Indian law and the empowerment of Tribal nations by
    allowing Tribes to step into the shoes of the Secretary of the Interior
    and the Secretary of the Department of Health and Human Services to
    plan, design and carry out Federal programs for Indians with funds
    provided by the Federal Government. When doing so, the United States
    fulfills its part of the contract between Tribes and the Federal
    Government, in return for the transfer of millions of acres of our
    aboriginal lands in return for the protection of the United States and
    for services to our members who gave up a way of life.

        With regard to the principles of Self-Governance, former Natural
    Resources Committee Chairman George Miller stated:

            The nature of Self-Governance is rooted in the inherent
            sovereignty of American Indian and Alaska Native tribes. From
            the founding of this Nation, Indian tribes and Alaska Native
            villages have been recognized as `distinct, independent,
            political communities' exercising powers of self-government,
            not by virtue of any delegation of powers from the Federal
            Government, but rather by virtue of their own innate
            sovereignty. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
            559 (1832). See also Santa Clara Pueblo v. Martinez, 436 U.S.
            49, 55 (1978). The tribes' sovereignty predates the founding of
            the United States and its Constitution and forms the backdrop
            against which the United States has continually entered into
            relations with Indian tribes and Native villages.

            The present model of tribal Self-Governance arose out of the
            federal policy of Indian Self-Determination. The modern Self-
            Determination era began as Congress and contemporary
            Administrations ended the dubious experiment of Termination
            which was intended to end the federal trust responsibility to
            Native Americans.

                                      ***

            As a policy, Termination was a disaster. Recognizing this,
            President Kennedy campaigned in 1960 promising the Indian
            tribes that:

                 There would be no change in treaty or contractual
            relationships without the consent of the tribes concerned.
            There would be protection of the Indian land base, credit
            assistance, and encouragement of tribal planning for economic
            development.

                                      ***

            President Richard Nixon's 1970 `Special Message on Indian
            Affairs' also called for increased tribal self-determination:

                 This, then, must be the goal of any new national policy
            toward the Indian people: to strengthen the Indian's sense of
            autonomy without threatening his sense of community. We must
            assure the Indian that he can assume control of his own life
            without being separated involuntarily from the tribal group.
            And we must make it clear that Indians can become independent
            of Federal control without being cutoff from Federal concern
            and Federal support.

        House Rep. No. 105-765, 105th Cong., 2d Sess., Committee on Natural
    Resources, to accompany H.R. 1833, Tribal Self-Governance Amendments of
    1998, Additional Views of Ranking Member George Miller, pp. 54-55
    (1998).

        In concluding his support for the legislation that would become
    Pub. L. 106-260, Act of Aug. 18, 2000, adding title V to the ISDEAA,
    Congressman Miller noted:

            Sometimes we need to look to the past in order to understand
            our proper relationship with Indian tribes. More than two
            centuries ago, Congress set forth what should be our guiding
            principles. In 1789, Congress passed the Northwest Ordinance, a
            set of seven articles intended to govern the addition of new
            states to the Union. These articles served as a compact between
            the people and the States . . . Article Three set for the
            Nation's policy toward Indian tribes:

            The utmost good faith shall always be observed toward the
            Indians; their land and property shall never be taken away from
            them without their consent * * * but laws founded in justice
            and humanity shall from time to time be made, for preventing
            wrongs being done to them * * *.

    Id. p. 60. Emphasis supplied.

        H.R. 312 is such a law--founded in justice and humanity--to prevent
    further wrongs being done to the Mashpee Wampanoag Tribe. The
    bipartisan measure, introduced by Congressman Keating of Massachusetts,
    and supported by the Town of Mashpee, the City of Taunton,
    Massachusetts, State legislators and the Massachusetts Congressional
    delegation, would reaffirm, ratify and confirm the 2016 decision of the
    Secretary of the Interior to take land into trust for the benefit of
    the Mashpee Wampanoag Tribe. It would further protect the act of
    Congress from legal challenge and, importantly, with limited exception,
    extend all laws of general applicability to Indians and Indian nations
    applicable to the Mashpee Wampanoag Tribe and their members.

        As noted by Vice Chairwoman Jessie Little Doe Baird, H.R. 312 is
    quite similar to Federal laws passed by Congress in recent years that
    reaffirmed a Tribe's trust land holdings: S. 1603, the Gun Lake
    Restoration Act, and H.R. 984, the Indian Tribes of Virginia
    Recognition Act.

        Just as the Northwest Ordinance permitted new states to enter the
    Union on an ``equal footing'' with existing states, Congress extended
    the same principle to tribes. In 1994, well before the ill-conceived
    and wrongly decided 2009 U.S. Supreme Court Carcieri decision, Congress
    amended the Indian Reorganization Act by enacting Pub. L. 103-263 to
    prohibit the federal government and executive agencies from taking any
    action that ``classifies, enhances, or diminishes the privileges and
    immunities available to the Indian tribe relative to other federally
    recognized tribes by virtue of their status as Indian tribes.'' 25
    U.S.C. Sec. 5123(f). With the history of the Northwest Ordinance, it
    was logical for the Federal Government to reaffirm the same principle
    as to the Nation's 573 federally recognized Tribes.

        The equal footing amendment to the IRA, sponsored by Senator John
    McCain, a two-time chairman of the Senate Indian Affairs Committee,
    ``put an end to the discriminatory practices that had been developing''
    within the Department of the Interior to classify tribes as either
    ``historic'' and ``entitled to the full panoply of inherent sovereign
    powers not otherwise divested by treaty or congressional action'' or
    ``created'' and ``therefore possessing limited sovereign powers.'' Sen.
    Rep. No. 112-166, 112th Cong., 2d Sess., May 17, 2012, Committee on
    Indian Affairs, to accompany S. 676, amending the Act of June 18, 1934,
    to reaffirm the authority of the Secretary of the Interior to take land
    into trust for Indian tribes, p.12 (``Our amendment makes it clear that
    it is and has always been Federal law and policy that Indian tribes
    recognized by the Federal Government stand on an equal footing to each
    other and to the Federal Government.'' 140 Cong. Rec. S6147 (daily ed.
    May 19, 1994) (statement of Sen. Daniel K. Inouye).'' (emphasis in
    original)). Id. at 12, fn. 71.

        As noted by Dean Washburn, the ``central flaw in Carcieri's
    reasoning is this: every tribe that is federally recognized today
    necessarily existed when the IRA was enacted in 1934.'' The 1994 equal
    footing amendment to the IRA reaffirmed its applicability to all
    federally recognized tribes, not just those under Federal
    superintendence as of 1934. Any tension between the IRA and the 1994
    equal footing amendment to it, should have been resolved by the courts
    to harmonize the legislation consistent with the expressed sentiment of
    Congress that all tribes should be treated equal, and not divided into
    ``haves'' and ``have nots'' as is now the case.

        For the above noted reason, we strongly urge this Subcommittee and
    the Congress to also pass H.R. 375, Congressman Tom Cole's bipartisan
    measure to reaffirm the authority of the Secretary of the Interior to
    take land into trust for all Indian tribes for the simple reason that
    ``it is and has always been'' Federal law and policy to treat Tribes
    equally.

        As noted by Dean Washburn, Congressman Cole's measure would amend
    the Indian Reorganization Act (IRA) in three important ways. First, it
    strikes the phrase ``now under federal jurisdiction'' from the Act,
    making it clear that the IRA applies to all federally recognized
    tribes. Second, it makes the amendment retroactive to 1934, the
    original date of the IRA, and ensures the proper authorization for all
    Secretarial actions taken since and removes the threat of litigation.
    Third, the bill amends the definitions in the IRA to make it clear that
    the Interior Secretary has authority to take lands into trust for
    Alaska Native villages, putting every Tribal Nation on an equal footing
    as Congress has always intended.

        H.R. 375 is especially important for us, the Narragansett. The
    Carcieri decision was about us and our rights and privileges as a
    federally recognized Tribe. We sought to place a 31-acre parcel in
    trust for housing development under a jurisdictional framework separate
    and distinct from that of our 1,800-acre trust settlement lands. Rhode
    Island challenged our right to create a Tribal community under our
    jurisdiction. Rhode Island fought to have our settlement act
    interpreted as it wanted, in an unnatural manner that strained
    credulity, rather than as prior Federal court decisions held which
    granted us a degree of independence from State interference.

        The State of Rhode Island now opposes Congressman Cole's measure
    and argues that it ``undermines'' the Carcieri decision. We recall that
    the State of Rhode Island reversed a Federal court decision in our
    favor in 1996. The difference is that the late Senator John Chafee did
    it through stealth and without the transparency of today's hearing. He
    added a non-germane rider to the FY 1996 appropriations act, a must-
    pass piece of legislation, days before the Senate vote that
    unilaterally amended our 1978 settlement legislation, and reversed a
    1994 decision of the United States Court of Appeals for the First
    Circuit in State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d
    685 (1994). That decision held that we, like other federally recognized
    Tribes, had the right to pursue economic development under the Indian
    Gaming Regulatory Act (IGRA). There was no consultation between Rhode
    Island and the Tribe before Senator Chafee acted. We had won an
    important court victory against Rhode Island and the State was not
    going to let it stand.

        Here, Congressman Cole introduced legislation in the House,
    Congressional hearings are being held, and there is ample public debate
    by all concerned.

        This is not the first Congress to introduce a ``clean fix'' to
    reverse the Carcieri decision. Rhode Island has opposed any measure
    that would include the Narragansett Indian Tribe. They would have the
    Nation believe that we are somehow different than other Indian tribes
    in the continental United States. We are not. Our history is the
    history of the United States' treatment of its indigenous people. From
    the King Phillip's War of 1675, and the Great Swamp Massacre of our
    ancestors by colonial militia a century before the Declaration of
    Independence, our aboriginal lands were stolen and diminished in size.
    Rhode Island colonists, and then as State citizens, purchased our lands
    at cheap prices. By the 19th Century, we had little more than a few
    hundred acres in Washington County, Rhode Island. In the latter part of
    the 19th Century, agents of the State began a lengthy and unrelenting
    campaign to unilaterally and unlawfully de-tribalize the Narragansett
    Tribe. The State passed legislation in violation of the Federal
    Nonintercourse Act, a combination of acts passed by Congress in the
    1790s to protect the inalienability of aboriginal title to Tribal lands
    without the consent of Congress. In debt, our remaining Tribal lands,
    with the exception of three acres of Indian church lands were sold. We
    have fought ever since to regain recognition and the return of our
    aboriginal lands. But we never stopped being Narragansett. In 1900, the
    Tribe incorporated itself, and in 1934, a long house was built to hold
    Tribal meetings.

        In 1975, the same year as the ISDEAA was enacted, we brought suit
    against the State of Rhode Island and private landowner, reasserting
    our aboriginal title claim to our ancestral lands. Despite the State's
    strong opposition, we prevailed and the State entered into settlement
    negotiations. We were ignored by Rhode Island until we asserted our
    rights. In 1983, we regained Federal recognition that we were and have
    always been a separate and distinct Indian tribe. The State of Rhode
    Island has fought us ever since. The State has opposed nearly all our
    efforts to pursue economic development. Now the State opposes the
    Mashpee Wampanoag Tribe because the Tribe, and its economic development
    interests, pose a risk to the State's two casinos and the many
    Massachusetts residents who travel to Rhode Island to gamble.

        Rhode Island State officials have misrepresented the truth on
    several occasions, including today's hearing. The Governor's
    representative, in her written remarks, asserts that if H.R. 312 were
    to become law, the federally recognized Tribes (plural) in Rhode Island
    would argue for similar treatment. Rhode Island's two senators are also
    on record making similar statements to their Senate colleagues. There
    is only one federally recognized Indian Tribe in the State of Rhode
    Island, the Narragansett.

        In the 1994 First Circuit decision decided in our favor, the Court
    found that: ``based on our understanding of the statutory interface, we
    hold that the provisions of the Indian Gaming Regulatory Act apply with
    full force to the lands in Rhode Island now held in Trust by the United
    States for the Narragansett Indian Tribe.'' Based on that decision, the
    then-Governor of Rhode Island negotiated the Tribe-State compact that
    would permit us to construct and operate a Class III facility on Tribal
    lands under IGRA. He required, however, that we submit to a State
    referendum. Non-Indians wishing to open casinos in Rhode Island flooded
    the ballot initiative.

        With the prospect of multiple casinos, Rhode Islanders rejected
    them all. We then opted to build and open a bingo hall (class II gaming
    under IGRA) on our trust lands and were completing an environmental
    assessment, as required by law. Senator Chafee had had enough. He
    inserted a one-sentence amendment to our settlement legislation, the
    Rhode Island Indian Claims Settlement Act, that stripped us of the
    rights we had fought so hard to secure. Senator Chafee's amendment
    read: ``For purposes of the Indian Gaming Regulatory Act (25 U.S.C.
    2701 et seq.), settlement lands shall not be treated as Indian Lands.''
    Senator McCain objected to this unilateral action by Senator Chafee. On
    the Senate floor, Senator McCain rose and remarked:

            Mr. President, I want to express my concern regarding an
            opposition to Section 330 of the general provisions of the
            Interior and related agencies portions of this Omnibus
            Appropriations Bill because Section 330 would, in a
            discriminatory fashion, dismantle the rights of one Indian
            tribe to conduct gaming activities on its lands like all other
            Indian tribes. Section 330 is specific to Rhode Island. It
            would expressly deny the only federally recognized Indian tribe
            in Rhode Island, the Narragansett Indian Tribe, the rights
            other Indian Tribes have under the Indian Gaming Regulatory
            Act. . . . I must say that Section 330 of this appropriations
            bill is an . . . unfair end run around the ongoing work of the
            authorizing committee [Senate Indian Affairs Committee].
            Section 330 would substantially amend the authorizing
            legislation on an appropriation measure without the benefit of
            any legislative hearing, without any contribution by the
            authorizing committee of jurisdiction and without any public
            debate by those most affected--the Narragansett Indian Tribe of
            Rhode Island.

        That was 23 years ago. We know all too well what happens when State
    and Federal officials exercise power against Indian Tribes without
    consultation or any public debate and with indifference to the
    aspirations of Native people to provide for their communities.

        John Adams famously remarked:

            ``Facts are stubborn things; and whatever may be our wishes,
            our inclinations, or the dictates of our passions, they cannot
            alter the state of facts and evidence.''

        The weight of public opinion is clear. The Carcieri decision was
    wrongly decided in 2009 and upended 70 years of Federal Indian policy
    that sought to reverse the destructive effects of the Indian Allotment
    Act that caused the loss of more than 90 million acres of Indian lands
    lead to great poverty and suffering for the Nation's first Americans--
    suffering which continues mostly unabated to this day. We Narragansett
    were among the Indian Tribes that lost our aboriginal lands. We are no
    different than other federally recognized Tribes who fight a never-
    ending battle to hold our Tribal communities together and maintain our
    cultural identity. It is long past time that the Carcieri decision be
    consigned to the dust bin of history where it belongs.

        In conclusion, we enthusiastically endorse and support H.R. 312,
    H.R. 375 and the proposed RESPECT Act that would codify as Federal law
    the principles of good governance; that the United States and the
    Indian nations should engage in meaningful government-to-government
    consultation concerning matters that can have profound impacts on
    Tribal communities.

        Thank you for the opportunity to present testimony to the
    Subcommittee.

                                     ______

                 National Congress of American Indians,
                                                 Washington, DC

                                                            May 7, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the National Congress of American Indians, the oldest
    and largest national organization representing the collective interests
    of American Indian and Alaska Natives tribes and their citizens, we
    respectfully request that you take all actions necessary to ensure that
    the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
    and S. 2628) is enacted as soon as possible. This is an urgent matter,
    as the Mashpee Tribe's reservation is in danger of being taken out of
    trust, despite strong local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. The
    Mashpee Tribe, like all other federally recognized tribes, is entitled
    to a federally protected reservation where it can exercise its
    sovereignty, protect its culture, and engage in self-determination.

        Further, on June 6, 2018, NCAI passed a motion by the full body of
    its 2018 Midyear Conference, stating its complete support for the
    Mashpee Tribe and calling upon Congress to pass the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act. The failure of Congress to act in
    this instance could result in the Mashpee Tribe's reservation being
    disestablished. This would be the first time in modern history that a
    reservation is disestablished, and would leave the Tribe perpetually
    landless. For this reason, it is imperative that Congress exercise its
    authority to provide the Tribe a land base and an opportunity to
    effectively self-govern and prosper.

        In closing, thank you for your consideration of this important
    issue. If you have any further questions or comments, please feel free
    to reach out to Derrick Beetso, NCAI Senior Counsel, at XXXXXXXXXX.
    Thanks again.

                Sincerely,

                                               Jacqueline Pata,
                                               NCAI Executive Director.

                                     ______

             TESTIMONY OF THE NATIONAL CONGRESS OF AMERICAN INDIANS

                              Hearing on H.R. 375

                                 April 18, 2019

        On behalf of the National Congress of American Indians (NCAI), the
    oldest and largest national organization made up of American Indian and
    Alaska Native tribal governments and their citizens, I write to submit
    testimony on H.R. 375--To amend the Act of June, 18, 1934, to reaffirm
    the authority of the Secretary of the Interior to take land into trust
    for Indian Tribes, and for other purposes.
        H.R. 375 is legislation that would protect existing Indian trust
    lands and restore certainty and fairness to the tribal land into trust
    process which has been impaired by the Supreme Court's decision
    Carcieri v. Salazar, 555 U.S. 379 (2009). As demonstrated below,
    Carcieri has effectively created two classes of tribal nations, and has
    overburdened tribal, federal, and state resources by generating
    unnecessary conflict over the restoration and retention of tribal
    homelands and consequently impeded economic development. Accordingly,
    NCAI strongly urges Congress to end this turmoil by enacting a
    congressional fix to the Indian Reorganization Act (IRA) which
    reaffirms the Secretary of the Interior's (Secretary) authority to
    restore tribal homelands for all federally recognized tribal nations.
    I. Overview on Congress' Intent in Passing the IRA & the Carcieri
            Problem
        Tribal nations are the sovereign beneficiaries of a unique
    fiduciary relationship with the Federal Government, and Congress has
    plenary and exclusive authority to legislate over Indian affairs.
        In exercise of this plenary authority, in 1934 Congress repudiated
    its policy of forced assimilation of tribal people and allotment of
    their lands under the General Allotment Act of 1887 by enacting the
    IRA. By that time, federal allotment policies had resulted in the
    taking and loss of 86 million acres of tribal homelands. In doing so,
    such policies severely fractionated treaty-bargained for Indian
    Reservations, resulting in the mismanagement of tribal interests, the
    ``checker-boarding'' of Indian lands, and the jurisdictional patchwork
    surrounding many residents of Indian country today.
        The IRA ended this destructive policy by setting forth a process to
    restore and protect tribal homelands in order to provide tribal nations
    with the tools to succeed as self-governing bodies. To accomplish this
    purpose, 25 U.S.C. Sec. 5108 authorized the Secretary to acquire lands
    ``within or without existing reservations'' for the ``purpose of
    providing land for Indians.'' For over 75 years, the United States
    Department of the Interior (Interior) consistently interpreted the IRA
    as authorizing the Secretary to acquire land in trust status for any
    tribal nation--so long as that nation was federally recognized at the
    time of the trust application.
        In Carcieri the Supreme Court departed from this long-standing
    precedent and determined that the IRA land into trust process requires
    tribal nations to demonstrate that they were ``under federal
    jurisdiction'' in 1934. However, the Carcieri decision did not explain
    how ``under federal jurisdiction'' should be defined. To that end, in
    2014, the implementing agency, Interior, provided interpretive guidance
    in the form of a Solicitor's Opinion M-37029.
        M-37029 introduced the following two-part agency analysis to
    address the ``under federal jurisdiction'' question presented by the
    Carcieri decision: (1) whether there is a sufficient showing in a
    tribal nation's history that during or prior to 1934, the tribal nation
    was under federal jurisdiction; and (2) whether the tribal nation's
    jurisdictional status remained intact in 1934.
        While M-37029 provides some guidance for Interior's evaluation of
    land-into-trust applications, it does not address the resulting
    disparate treatment of tribal nations, and did not stem the tide of
    post-Carcieri litigation.
    II. The Carcieri Decision Has Effectively Created Two Classes of Tribal
            Nations
        Effectively, the Carcieri decision has resulted in two classes of
    tribal nations in violation of P.L. 103-263.\1\ Those determined to
    have been under federal jurisdiction in 1934 and those determined not
    to have been under federal jurisdiction in 1934. Simply put, Congress'
    intent--to provide the necessary tools for tribes to effectively self-
    govern--is not wholly realized by all tribal nations. Until Congress
    acts, there are some tribes that Interior is simply unable to acquire
    land for. These tribes' lands, while owned in fee simple by a tribal
    nation, are unable to realize their full potential as economic drivers
    and residential homelands for tribal citizens. This is contrary to
    Congress' intent and results in certain tribes having less
    opportunities with respect to developing a sufficient tax base,
    providing critical tribal services for their citizens, or protecting
    and preserving critical lands and natural resources.
    ---------------------------------------------------------------------------
        \1\ See P.L. 103-263, 108 Stat 707 (1994 providing that
    ``[d]epartments or agencies of the United States shall not promulgate
    any regulation or make any decision or determination pursuant to the
    Act of June 18, 1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended,
    or any other Act of Congress, with respect to a federally recognized
    Indian tribe that classifies, enhances, or diminishes the privileges
    and immunities available to the Indian tribe relative to other
    federally recognized tribes by virtue of their status as Indian
    tribes.'').
    ---------------------------------------------------------------------------
    III. The Carcieri Decision Has Overburdened Governmental Resources
        The uptick in litigation elicited by the Carcieri decision has
    caused irrevocable damage to affected communities. Within three years
    of the decision in 2013, then Assistant Secretary of Indian Affairs,
    Kevin Washburn testified that the federal government was ``up to [its]
    eyeballs in litigation on these matters.'' \2\ During that same
    hearing, entitled Carcieri: Bringing Certainty to Trust Land
    Acquisitions, Washburn also testified that:
    ---------------------------------------------------------------------------
        \2\ ``Carcieri: Bringing Certainty to Trust Land Acquisitions''
    testimony by former Assistant Secretary of Indian Affairs, Kevin
    Washburn, November 20, 2013. https://www.govinfo.gov/content/pkg/CHRG-
    113shrg87133/html/CHRG-113shrg87133.htm.

            [Interior] is . . . forced to expend resources both before and
            during litigation to defend against such spurious claims--
            resources that are needed for social services, protection of
            natural resources and implementation of treaty rights. A
            straightforward Carcieri fix would be a tremendous economic
            boost to Indian country, at no cost to the Federal
            government.\3\
    ---------------------------------------------------------------------------
        \3\ Id.

        To Washburn's point, presently tribal nations are forced to spend
    scarce resources through the following process to acquire homelands:
    (1) purchase or otherwise acquire land in fee; (2) commence the labor
    intensive and lengthy fee-into-trust administrative application
    process; (3) subsequently defend against Carcieri attacks in the
    district and appellate courts; and (4) occasionally--in the worst
    scenarios--tribal nations are forced to seek specific land acquisition
    legislation through Congress.
        Each of these steps comes with an enormous monetary and political
    cost to tribal nations. In addition to these costs, tribal communities
    bear the lost opportunity costs of foregoing expenses, both internally
    and at the federal level as noted in Washburn's testimony above, on
    critical service needs such as education, public safety, housing, and
    other needs, in order to support the expense of a fee to trust
    application.
        At taxpayer's expense, the federal government also pays the price
    at the executive, judicial, and congressional branches. At the
    executive level, Interior expended many workhours in developing and
    implementing M-37029's two-step analysis, which now requires Interior
    to engage in a time-intensive analysis, sometimes taking years to
    complete, on whether a tribal nation was under federal jurisdiction in
    1934. Assuming a favorable decision is reached on behalf of the tribe,
    it often then gets challenged through litigation where Interior and the
    Department of Justice, in coordination with the affected tribal nation,
    then expend years defending the trust acquisition in fulfillment of the
    federal trust responsibility. Further, burdening Interior resources has
    created ancillary harm for tribal nations that were under federal
    jurisdiction in 1934 as it has slowed the land into-trust-process.
        Federal judicial resources are concurrently stretched as Carcieri
    cases crowd their dockets for years and mandate painstaking reviews of
    lengthy administrative records involving history and genealogy. This
    drain on the federal judiciary has led a D.C. Circuit judge to exclaim
    ``[e]nough is enough!'' in a case involving a 16-year-old land into
    trust acquisition that was aggravated by post-Carcieri litigation.\4\
    ---------------------------------------------------------------------------
        \4\ To re-affirm an existing trust acquisition for the Match-E-Be-
    Nash-She-Wish Band of Pottawatomi Indians, in 2014 Congress enacted the
    ``Gun Lake Trust Land Reaffirmation Act,'' Pub. L. 113-179, 128 Stat.
    1913.
    ---------------------------------------------------------------------------
        Likewise, Congress's resources have been expended both in the
    consideration of 15 Carcieri fixes for over a decade and through tribe-
    specific bills which are the final resort for acquisition and re-
    affirmation of tribal homelands.
        Lastly, states and local governments have also exhausted tax-payer
    resources on unsuccessful Carcieri litigation. For example, in a 15-
    year long case that was exacerbated by post-Carcieri litigation, a
    rural California county with a 20% poverty rate expended $850,000 \5\
    to oppose a Interior tribal trust acquisition.
    ---------------------------------------------------------------------------
        \5\ ``Year in Review,'' Chico News and Review, December 18, 2018,
    https://issuu.com/news_review/docs/c-2018-12-27.
    ---------------------------------------------------------------------------
    IV. Tribal Homelands are Critical to the Health, Safety, and Welfare of
            Tribal Communities
        The IRA has enabled tribal nations to restore their homelands
    through the land into trust process and has been vital to tribal self-
    governance, including greater economic self-sufficiency. Through the
    IRA process, tribal nations are better able to deliver essential
    government services through the construction of schools, health
    facilities, Head Start centers, elder and veteran centers, housing, and
    justice facilities. Restoration of homelands has also enabled tribal
    nations to protect their cultures and traditions and aligns with
    Congress and the Administration's goal of supporting tribal self-
    determination and self-sufficiency.
        Tribal trust acquisitions further aid tribal economic development
    by generating public and private partnerships that lead to increased
    jobs and services for tribal and non-tribal communities. As a result,
    in rural counties tribal nations are often the largest employers and
    health service providers for the entire community.\6\
    ---------------------------------------------------------------------------
        \6\ See, e.g., Oregon Secretary of State, Oregon Blue Book, https:/
    /sos.oregon.gov/blue-book/Pages/national-tribes-intro.aspx
    (acknowledging that tribal governments are some of the ``largest
    employers in their counties--generating employment for tax-paying
    employees, benefiting local communities and the entire state.'');
    Northwest Portland Indian Health Board (Coeur D'Alene profile showcases
    a tribal ambulatory health care facility, on trust land, that ``employs
    170 staff and serves 6,000 native and non-native patients.'') http://
    www.npaihb.org/member-tribes/coeur-dalene-tribe/.
    ---------------------------------------------------------------------------
    V. Conclusion
        For a decade, NCAI has requested that Congress address the Carcieri
    problem by (1) restoring the Secretary's authority under the IRA to
    take land into trust for all federally recognized tribal nations; and
    (2) reaffirming existing Indian trust lands. This common sense approach
    is wholly consistent with the IRA's intent to rebuild tribal homelands,
    governments and economies and has the demonstrated potential to benefit
    all tribal nations and their surrounding communities. Equally, a clean
    fix would end the confusion and intergovernmental disputes that
    resulted from the Supreme Court's ill-advised decision a decade ago in
    Carcieri. We thank you in advance for consideration of this testimony,
    and look forward to engaging on solutions to this critical issue in the
    116th Congress.

                       NATIONAL INDIAN GAMING ASSOCIATION

                         RESOLUTION 05-LAS-BOD-4-20-18

    TITLE: To Support H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

    WHEREAS, the National Indian Gaming Association (NIGA) is an
    intertribal association of 184 federally recognized Indian Tribes
    established to support Indian gaming and defend Indian sovereignty; and

    WHEREAS, Indian Tribes are sovereigns that pre-date the United States,
    with prior and treaty protected rights to self-government and to our
    Indian lands, and

    WHEREAS, the Constitution of the United States, through the Treaty,
    Commerce, and Apportionment Clauses and the 14th Amendment, recognizes
    the sovereign status of Indian Tribes as Native nations established
    prior to the United States; and

    WHEREAS, before the United States, Indian nations were independent
    sovereigns with complete authority over our lands and our citizens; and

    WHEREAS, on September 18, 2015 the Department of the Interior issued a
    decision to accept approximately 321 acres of land into trust for the
    Mashpee Wampanoag Tribe of Massachusetts as the Tribe's initial
    reservation, and within the Tribe's historical territory; and

    WHEREAS, the Department's decision has since been subject to challenge,
    thereby threatening the Tribe's newly established trust lands, its
    ability to acquire lost homelands, and more broadly, its people and its
    sovereignty; and

    WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) has been
    introduced in Congress, which reaffirms the Department's trust
    acquisition for the Mashpee Tribe.

    NOW THEREFORE BE IT RESOLVED, NIGA hereby calls on Congress to enact
    H.R. 5244 and S. 2628, the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act; and

    BE IT FURTHER RESOLVED that this resolution shall be the policy of NIGA
    until it is withdrawn or modified by subsequent resolution.

                                 CERTIFICATION

    The foregoing resolution was adopted by the Board of Directors at a
    meeting of the National Indian Gaming Association, held at the Westgate
    Las Vegas Resort & Casino, 3000 Paradise Rd, on April 20, 2018, Las
    Vegas, NV, with a quorum present.

            Ernest L. Stevens, Jr.,
            Chairman                      Paulette Jordan, Secretary
                           Native American Rights Fund,
                                              Boulder, Colorado

                                                           May 11, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        The Native American Rights Fund respectfully urges the Senate
    Indian Affairs Committee, and the House Natural Resources Committee and
    its Subcommittee on Indian and Alaska Native Affairs, to do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues.

        We urge Congress to use its authority to deal with Indian Tribes to
    ensure that the Mashpee Tribe is not forever rendered perpetually
    landless by enacting the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.

                Sincerely,

                                              John E. Echohawk,
                                                    Executive Director.
                                                           July 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S.
            2628)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        We, the undersigned, request your support for the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and ask
    that you act swiftly to move this bill through the legislative process
    in your respective committees in order to ensure its passage in the
    House and Senate.

        The Mashpee Indian Tribe, a federally recognized tribe with a
    history, culture and government that pre-dates the founding of the
    United States--the Tribe that helped the Pilgrims--eventually lost all
    of its historical lands because of the federal government's failure to
    protect those lands from encroachment. In 2015, with overwhelming local
    support, the Department of the Interior finally rectified this
    historical injustice and established Mashpee's first reservation. The
    status of Mashpee's reservation is now threatened by technical legal
    issues. This could result in the disestablishment of Mashpee's
    reservation and could return the Tribe to landlessness.

        The Mashpee Wampanoag Tribe Reservation Reaffirmation Act reaffirms
    the status of the Mashpee Reservation and will allow the Tribe to
    continue to provide the cultural, economic, and public services to its
    members that are the essential ingredients of its self-determination as
    a Tribe. Passage of the legislation also will bring thousands of jobs
    and millions of dollars of related infrastructure and community
    development to Taunton and surrounding communities, as part of the
    Tribe's economic development efforts.

        We respectfully request that Congress enact the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act to ensure that the Mashpee
    Reservation is protected and that the Tribe is not made landless. Thank
    you for your consideration of this request.

                Sincerely,

               Signed by 185 Residents of the New England Area.
                  Nez Perce Tribal Executive Committee,
                                                  Lapwai, Idaho

                                                       November 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244/S.
            2628)

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        The Nez Perce Tribe requests your support of the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628) and asks
    that you act swiftly to move this bill through the legislative process
    in your respective committees in order to ensure its passage in the
    House and Senate.

        In 2015, pursuant to the Indian Reorganization Act and with strong
    support from local governments and the state of Massachusetts, the
    Department of the Interior (Department) took into trust lands located
    within the Mashpee Wampanoag Tribe's (Mashpee's) traditional homeland
    and proclaimed those lands as the Mashpee Reservation. Unfortunately,
    despite strong support of the surrounding community, the existence of
    the Reservation is threatened by litigation based on technical legal
    issues initiated by a small group of local residents. In May 2017, the
    Department withdrew from the litigation and is no longer defending the
    status of the Mashpee Reservation.

        On September 7, 2018, the Department issued a decision refusing to
    reaffirm its own authority to confirm the status of the Mashpee
    Reservation opening the door for the Reservation to be taken out of
    trust and disestablished.

        As you know, land is fundamental to tribal self-determination--it
    provides the means for tribes to protect their cultures and to engage
    in desperately needed economic development. The Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act confirms the Mashpee Reservation's status
    and allows the Tribe to continue providing cultural, economic, and
    public services to its members that are the essential ingredients of
    its self-determination as a Tribe.

        The Nez Perce Tribe respectfully requests that Congress enact the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
    the Mashpee Reservation is protected and that the Tribe is not made
    landless. Thank you for your consideration of this request.

                Sincerely,

                                            Shannon F. Wheeler,
                                                              Chairman.
                                       Oneida Nation,
                             Oneida Business Committee,
                                                     Oneida, WI

                                                           June 8, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to respectfully request that you
    take all necessary action to ensure that the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
    soon as possible. This is an urgent matter, as the Mashpee Tribe's
    reservation is in danger of being taken out of trust.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would result in the Mashpee Tribe becoming perpetually landless.
    Congress must exercise its plenary authority to ensure that the Mashpee
    Tribe and its reservation land is protected. The Mashpee Tribe, like
    all other federally recognized tribes, should be entitled to a
    federally protected reservation where it can exercise its sovereignty,
    protect its culture, and engage in self-determination. Please enact the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

                Sincerely,

                                                  Tehassi Hill,
                                                              Chairman.
                       Otoe Missouria Tribe of Indians,
                                                   Red Rock, OK

                                                           June 5, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to respectfully request that you
    take all necessary action to ensure that the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
    soon as possible. This is an urgent matter, as the Mashpee Tribe's
    reservation is in danger of being taken out of trust, despite strong
    local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would be the first time in modern history that a reservation is
    disestablished, and would result in the Mashpee Tribe becoming
    perpetually landless. Congress must exercise its plenary authority to
    ensure that the Mashpee Tribe and its reservation land is protected.
    The Mashpee Tribe, like all other federally recognized tribes, should
    be entitled to a federally protected reservation where it can exercise
    its sovereignty, protect its culture, and engage in self-determination.
    Please enact the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

                Sincerely,

                                                  John Shotton,
                                                       Tribal Chairman.
                                  Pascua Yaqui Tribe,
                                Office of the Chairman,
                                                Tucson, Arizona

                                                            May 1, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Pascua Yaqui Tribe, we respectfully urge that the
    Senate Indian Affairs Committee, and the House Natural Resources
    Committee and its Subcommittee on Indian and Alaska Native Affairs, do
    everything possible to ensure swift enactment of the Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe is
    threatened by litigation challenging the status of its reservation
    based on technical legal issues.

        Pascua Yaqui was restored to federal recognition in 1978.\1\ In
    1991, we faced a crisis similar to the one Mashpee faces now. In the
    process of reviewing amendments to our constitution, the Department of
    the Interior purported to determine that Pascua Yaqui was a ``created''
    tribe rather than an ``historic'' tribe for the purposes of the Indian
    Reorganization Act of 1934 (IRA), and as a result Interior asserted
    that we did not have the inherent authority to regulate law and order
    on our reservation. Congress did the right thing to ensure that Pascua
    Yaqui would be treated fairly when in 1994 Congress passed an amendment
    to the IRA that clarified that all federally recognized tribes must be
    treated equally under the IRA,\2\ thereby putting an end to the
    Department's practice of creating different classifications of
    federally recognized tribes. As a federally recognized tribe, Mashpee
    must also be treated equally under the IRA with all other federally
    recognized tribes.
    ---------------------------------------------------------------------------
        \1\ Public Law No. 95-375, 97 Stat. 712 (1978).
        \2\ Public Law No. 103-263, 108 Stat. 707 (1994).

        We urge Congress to enact the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act will ensure that the Mashpee Tribe receives equal
    treatment under the IRA and by so doing, will protect the Tribe from
    being rendered perpetually landless. Enactment of the legislation is
    consistent with the federal government's trust responsibility toward
    Mashpee, and we urge you to do whatever you can to ensure that the
    ---------------------------------------------------------------------------
    proposed legislation becomes law.

                Sincerely,

                                               Robert Valencia,
                                                              Chairman.
                       Prairie Island Indian Community,
                                                      Welch, MN

                                                         April 16, 2019

    Hon. Raul Grijalva,
    Hon. Rob Bishop,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. Ruben Gallego,
    Hon. Paul Cook,
    House Subcommittee on Indigenous Peoples of the United States,
    Washington, DC 20515.

    Re: The Prairie Island Indian Community Urges Passage of H.R. 312, the
            Mashpee Wampanoag Tribe Reservation Reaffirmation Act

        Dear Chairman Grijalva, Ranking Member Bishop, Chairman Gallego,
    and Ranking Member Cook:

        On behalf of the Prairie Island Indian Community, a federally
    recognized Tribe located on the banks of the Mississippi River in
    Welch, Minnesota, I write to express our concerns and to request your
    unequivocal support for swift passage of the Mashpee Wampanoag
    Reservation Reaffirmation Act. We believe that the establishment of the
    Mashpee Wampanoag Reservation was very long overdue and that this
    legislation is needed to protect their Reservation as well as the
    Tribal Sovereignty of the Tribal Nations in the United States of
    America. This bipartisan bill is broadly supported in Indian Country
    and is urgently needed in order to ensure that the Mashpee Reservation,
    located within the Mashpee Tribe's traditional homelands, is not
    disestablished due to a technicality.

        The Mashpee Reservation was established in accordance with the
    Indian Reorganization Act and with the strong support of the State and
    the local community. However, this Reservation is now being threatened
    by litigation that could result in the Tribe's land being taken out of
    trust--something that the federal government has not allowed to happen
    since the Termination Era in the 1950's.

        Like the Mashapee Wampanoag, the overall goal of the Prairie Island
    Indian Community is to protect its members and to support the long-term
    health and self-sufficiency of the Tribe in the face of overwhelming
    odds. In 1938, Lock and Dam No. 3 was placed in operation by the Army
    Corps of Engineers on the Upper Mississippi River, less than three
    miles downstream from the Prairie Island Reservation. It resulted in a
    permanent and unauthorized taking of our Reservation land. Lock and Dam
    No. 3 also regularly overflows and as a result severe flooding of the
    Reservation takes place seasonally.

        In 1973, without consultation, the Prairie Island Nuclear
    Generating Plant (PINGP) was then placed a mere 600 yards from our
    land. Currently, forty-four dry casks of spent nuclear fuel are also
    stored in close proximity to Tribal homes, our church, our learning
    center, the Tribe's community center and Tribal businesses. No other
    human beings in this country live closer to nuclear power plant and
    spent-fuel storage. The Nuclear Regulatory Commission (NRC) has
    licensed the storage of an additional fifty-four dry casks of spent
    nuclear fuel at the plant by 2034. Our community is located within the
    Plume Exposure Pathway Emergency Planning Zone for the nuclear plant,
    an area with a higher risk of exposure or evacuation in the event of an
    accident.

        Finally to further complicate the situation, there is only one
    reliable road leading on and off of our Reservation, and this road is
    often blocked by railroad traffic carrying a variety of freight,
    including highly volatile Bakken crude oil.

        Because of the circumstances we face, we must look elsewhere for
    safe land. The Mashpee Wampanoag decision causes great concern to our
    community as it conveys this administration's view on fee-to-trust
    transfers for Native American Tribes that desperately need it are not a
    priority.

        We believe that the decision made by the Department of Interior
    severely affects the Mashpee Wampanoag's Tribal Sovereignty and
    restricts their ability for proper self-governance. Their ability for
    further economic development, which the Tribe relies on to fund many
    functions of their government, will without a doubt be affected and
    therefore the many social service programs the Tribe provides to its
    citizens will suffer. As was clear from the Mashpee Tribe's testimony
    before the House Natural Resources Committee on April 3rd, 2019, the
    quality of life for the Tribe and its citizens has been significantly
    affected. The uncertain status of the Reservation has caused great harm
    to programs such as, elder services and addiction treatment services,
    and has been forced to lay off much of its Tribal government work
    force. For this reason we join so many other voices from Indian Country
    and around the United States to respectfully urge that Congress fulfill
    its trust responsibility to the Mashpee Tribe by enacting the Mashpee
    Wampanoag Reservation Reaffirmation Act as soon as possible.

        The Prairie Island Indian Community would like to thank you for the
    excellent work that you do, and are pleased with your interest in
    helping, not only the Mashpee Wampanoag Tribe, but Tribal Nations
    across the country. If you have any questions, please do not hesitate
    to contact me directly, or have your staff contact our Government
    Relations Specialist, Cody Whitebear, at telephone number XXX-XXX-XXXX.

                Sincerely,

                                                  Shelley Buck,
                                                             President.

                                     ______

                             Pyramid Lake Paiute Tribe,
                                                  Nixon, Nevada

                                                           June 5, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the Pyramid Lake Paiute Tribe, we respectfully urge
    that the Senate Indian Affairs Committee, and the House Natural
    Resources Committee and its Subcommittee on Indian and Alaska Native
    Affairs, do everything possible to ensure swift enactment of the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244 and S.
    2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                                 Vinton Hawley,
                                 National Indian Health Board, Chairman
                     HHS, Secretary's Tribal Advisory Committee, Member

                     ROCKY MOUNTAIN TRIBAL LEADERS COUNCIL

                           RESOLUTION #20-June-2018-2

    A RESOLUTION TO SUPPORT H.R. 5244 AND S. 2628, THE MASHPEE WAMPANOAG
    TRIBE RESERVATION REAFFIRMATION ACT

    WHEREAS, the Rocky Mountain Tribal Leaders Council (TLC) has been
    created for the express purpose of providing its member Tribes with a
    unified voice and a collective organization to address issues of
    concern to the Tribes and Indian people; and

    WHEREAS, the Board of Directors of the Tribal Leaders Council consists
    of duly elected Tribal Chairs, Presidents and Council Members who are
    fully authorized to represent their respective Tribes; and

    WHEREAS, as a manifestation of their solemn duty, the Tribal
    governments actively engage in policy formation on any matters that
    affect the Tribes and reservations; and

    WHEREAS, the governments of the various Native American nations have
    exercised full sovereign authority since time immemorial, including
    over their separate territories, lands, sacred grounds, and natural
    resources, including clean and fresh water; and

    WHEREAS, Indian Tribes are sovereigns that pre-date the United States,
    with prior and treaty protected rights to self-government and to our
    Indian lands; and

    WHEREAS, the Constitution of the United States, through the Treaty,
    Commerce, and Apportionment Clauses and the 14th Amendment, recognizes
    the sovereign status of Indian Tribes as Native nations established
    prior to the United States; and

    WHEREAS, before the United States, Native nations were independent
    sovereigns with complete authority over our lands and our citizens; and

    WHEREAS, on September 18, 2015 the Department of the Interior issued a
    decision to accept approximately 321 acres of land into trust for the
    Mashpee Wampanoag Tribe of Massachusetts as the Tribe's initial
    reservation, and within the Tribe's historical territory; and

    WHEREAS, the Department's decision has since been subject to challenge,
    thereby threatening the Tribe's only trust land and more broadly, its
    people and its sovereignty; and

    WHEREAS, bipartisan legislation, the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628), has been
    introduced in Congress to reaffirm the Department's trust acquisition
    for the Mashpee Tribe and to prevent the Tribe from once again being
    made landless.

    NOW THEREFORE BE IT RESOLVED, that the Rocky Mountain Tribal Leadership
    Council hereby calls on Congress to enact H.R. 5244 and S. 2628, the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

                                 CERTIFICATION

    We, the undersigned, as the Chair and the Secretary of the Tribal
    Leaders Council, do hereby certify that the foregoing Resolution was
    duly presented and approved unanimously at an official Board Meeting of
    the Rocky Mountain Tribal Leaders Council, which was held on the 7th
    day of June in Billings, Montana with 9 member Tribes present to
    constitute a Quorum.

            Alvin Not Afraid Jr.,         Gerald Gray,
            Chairman--Tribal Leaders
            Council                       Secretary--Tribal Leaders Council
                               San Carlos Apache Tribe,
                                            San Carlos, Arizona

                                                            May 9, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the 16,500 members of the San Carlos Apache Tribe (the
    ``Tribe''), I respectfully urge that the Senate Indian Affairs
    Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee
    Wampanoag Reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    group of individual citizens opposed to tribal sovereignty proclaims
    that the Mashpee Wampanoag reservation should not be in their back yard
    based on technical legal issues.

        Reservations form a core component of tribal sovereignty, cultural
    identity and the foundation of a tribe's economy. All tribes have an
    interest in protecting our reservations. All tribes have an interest in
    reacquiring our aboriginal territories, our ancestral homelands. A
    threat to one reservation is a threat to all reservations. Any threat
    to the restoration of a tribe's land base, is a threat to all tribes.

        As our partner in the preservation of tribal reservations and
    aboriginal territories, the federal government has a solemn duty borne
    out of its trust responsibility to all tribes to prioritize the
    restoration of our tribal land bases. However, this NIMBY action
    threatens the ability of the Mashpee Wampanoag Tribe to rebuild its
    economy and provide essential government services to its members--the
    fundamental goal of the land-into-trust process. The Mashpee Wampanoag
    Tribe Reservation Reaffirmation Act simply provides legal certainty to
    the status of the Tribe's trust lands, allowing their efforts to move
    forward.

        We urge Congress to use its plenary authority to ensure that the
    Mashpee Tribe is not forever rendered perpetually landless by enacting
    the Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

        As we say in our Apache language, Ahi'yi'e, thank you for your
    support in this critically important matter.

                Sincerely,

                                                 Terry Rambler,
                                                              Chairman.
                            SHINNECOCK INDIAN NATION,
                           Shinnecock Indian Territory,
                                          Southampton, New York

                                                          July 13, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my tribe, the Shinnecock Indian Nation,
    to respectfully request that you take all necessary action to ensure
    that the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.
    5244 and S. 2628) is enacted as soon as possible. This is an urgent
    matter, as the Mashpee Tribe's reservation is in danger of being taken
    out of trust, despite strong local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would be the first time in modern history that a reservation is
    disestablished, and would result in the Mashpee Tribe becoming
    perpetually landless. Congress must exercise its plenary authority to
    ensure that the Mashpee Tribe and its reservation land is protected.

        As another Indian Nation from the Northeast, we stand united with
    the Mashpee Wampanoag in the fight to protect their historic lands. As
    you are aware, tribes in the Northeast endured the first contact with
    settlers and have the longest recorded history of all Indian Nations.
    As such, we personally recognize the immense tribulations the Mashpee
    Wampanoag have faced and the importance for its reservation lands to
    remain protected.

        The Mashpee Tribe, like all other federally recognized tribes,
    should be entitled to a federally protected reservation where it can
    exercise its sovereignty, protect its culture, and engage in self-
    determination. Please enact the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.

                Respectfully,

            Charles K. Smith II,          Donald Williams Jr.,
            Chairman, Council of
            Trustees                      Sachem, Council of Trustees
                                     Spirit Lake Tribe,
                                                Fort Totten, ND

                                                           June 7, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to respectfully request that you
    take all necessary action to ensure that the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
    soon as possible. This is an urgent matter, as the Mashpee Tribe's
    reservation is in danger of being taken out of trust, despite strong
    local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would be the first time in modern history that a reservation is
    disestablished, and would result in the Mashpee Tribe becoming
    perpetually landless. Congress must exercise its plenary authority to
    ensure that the Mashpee Tribe and its reservation land is protected.

        The Mashpee Tribe, like all other federally recognized tribes,
    should be entitled to a federally protected reservation where it can
    exercise its sovereignty, protect its culture, and engage in self-
    determination. Please enact the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.

                Sincerely,

                                               Douglas Yankton,
                                                         Vice-Chairman.
               St. Croix Chippewa Indians of Wisconsin,
                                                    Webster, WI

                                                          June 11, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: The St. Croix Tribe Supports the Mashpee Wampanoag Tribe
            Reservation Reaffirmation Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of the St. Croix Tribe of Chippewa Indians of Wisconsin,
    I respectfully request that the Senate Indian Affairs Committee, and
    the House Natural Resources Committee and its Subcommittee on Indian
    and Alaska Native Affairs, do everything possible to ensure enactment
    of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
    and S. 2628).

        The Mashpee Tribe is the only federally recognized tribe in the
    Northeast that does not have a land claim settlement. As a result,
    unlike other tribes with such settlements, Mashpee had no alternative
    but to rely on the general land acquisition authority provided in the
    Indian Reorganization Act (IRA) to establish a reservation. The Mashpee
    Tribe's reservation is located within Mashpee's traditional homelands,
    and was established in accordance with the IRA and with the strong
    support of surrounding local governments. Unfortunately, the existence
    of this reservation is now threatened by litigation based on technical
    legal issues. These technical legal issues could lead to the
    disestablishment of Mashpee's reservation--the first time an Indian
    reservation would be disestablished since the Termination Era.

        A land base is a foundational component of tribal sovereignty and
    provides the space for tribes to maintain our cultural identities and
    build our economies. The Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act reaffirms that status of the Tribe's reservation so
    that the Tribe can continue to provide vital services to its members,
    protect its culture, and expand its economy to provide for future
    generations.

        We urge Congress to employ its plenary authority to enact the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act to ensure that
    the Mashpee Tribe is not forever rendered continually landless.

                Sincerely,

                                                  Lewis Taylor,
                                              Chairman, Tribal Council.
                        Stockbridge-Munsee Community,
                               Band of Mohican Indians,
                                                     Bowler, WI

                                                           June 5, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        I am writing on behalf of my Tribe to respectfully request that you
    take all necessary action to ensure that the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628) is enacted as
    soon as possible. This is an urgent matter, as the Mashpee Tribe's
    reservation is in danger of being taken out of trust, despite strong
    local government support for its creation.

        This threat to the Mashpee Tribe's federally protected lands,
    established under the authority of the Indian Reorganization Act, is
    the result of litigation brought by a small group of individuals,
    challenging the Tribe's reservation on technical legal grounds. This
    would be the first time in modern history that a reservation is
    disestablished and would result in the Mashpee Tribe becoming
    perpetually landless. Congress must exercise its plenary authority to
    ensure that the Mashpee Tribe and its reservation land is protected.

        The Mashpee Tribe, like all other federally recognized tribes,
    should be entitled to a federally protected reservation where it can
    exercise its sovereignty, protect its culture, and engage in self-
    determination. Please enact the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act.

                Sincerely,

                                                Shannon Holsey,
                                                             President.

                              THE SUQUAMISH TRIBE

                        PORT MADISON INDIAN RESERVATION

                              RESOLUTION 2018-107

    WHEREAS, the Suquamish Tribal Council is the duly constituted governing
    body of the Port Madison Indian Reservation by authority of the
    Constitution and Bylaws for the Suquamish Tribe of the Port Madison
    Indian Reservation, Washington, as approved on July 2, 1965, by the
    Under-Secretary of the United States Department of the Interior;

    WHEREAS, under Article III of the Constitution and Bylaws of the
    Suquamish Tribe, the Suquamish Tribal Council is charged with the
    general governance of the Port Madison Indian Reservation and to this
    end, has the power, right, and authority to take all actions necessary
    to carry such duties into effect, including protecting the health,
    security, and general welfare of the Tribe;

    WHEREAS, the Mashpee Indian Tribe, a federally recognized Tribe with a
    history, culture, and government that predates the founding of the
    United States--the Tribe that helped the Pilgrims--eventually lost all
    of its historical lands because of the federal government's failure to
    protect those lands from encroachment;

    WHEREAS, in 2015, the Department of the Interior (``Interior'') finally
    rectified this historical injustice when it took into trust certain
    land within the Tribe's historical territory in Massachusetts and made
    it the Tribe's reservation, with overwhelming local support, pursuant
    to the Indian Reorganization Act (``IRA'');

    WHEREAS, a suit was filed in federal court to challenge Interior's
    action, and the court rejected Interior's original legal theory, which
    was based on the second definition of ``Indian'' in the IRA, calling
    into question the legal status of the Tribe's reservation; however, the
    court further allowed the Tribe to petition Interior under a different
    legal theory, based on the first definition of ``Indian'' in the IRA;

    WHEREAS, Interior originally sought to defend its decision and the
    Tribe's reservation when it filed an appeal in December 2016, but in
    May 2017 the Department of Justice withdrew from the litigation and is
    no longer defending the status of the Tribe's reservation;

    WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act
    (H.R. 5244 and S. 2628) will reaffirm the status of the Tribe's
    reservation and make clear that the Tribe is entitled to be treated the
    same way under the IRA as other federally recognized Tribes; and

    WHEREAS, the Mashpee Wampanoag Tribe is not asking for new or special
    rights, but rather is asking Congress, through this Act, to exercise
    its plenary authority to ensure that the Tribe will be treated equally
    with other federally recognized Tribes under the IRA, thereby
    protecting the Tribe's existing reservation so that it can continue to
    provide services to its members, protect its culture, and provide
    employment and housing for its members;

    NOW THEREFORE BE IT RESOLVED, that the Suquamish Tribal Council hereby
    declares its support for the Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act, joining with the Mashpee Wampanoag Tribe in urging
    Congress to pass the Act.

                                 CERTIFICATION

    The foregoing resolution was duly adopted on June 25, 2018 at a regular
    meeting of the Suquamish Tribal Council at which a quorum was present,
    by a vote of 6 for and 0 against, with 0 abstention(s), in accordance
    and pursuant to the authority vested in it by the Constitution and
    Bylaws of the Suquamish Tribe.

            By:                           Attested to by:
            Leonard Forsman, Chairman     Nigel Lawrence, Secretary
                                          Sycuan Tribe,
                                                   El Cajon, CA

                                                           June 6, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                              Cody J. Martinez,
                                                              Chairman.

              RESOLUTION OF THE TOHONO O'ODHAM LEGISLATIVE COUNCIL

       (Supporting Mashpee Wampanoag Tribe Reservation Reaffirmation Act)

                             RESOLUTION NO. 18-145

    WHEREAS, the Constitution of the Tohono O'odham Nation vests the
    Legislative Council with the authority to ``consult, negotiate and
    conclude agreements and contracts on behalf of the Tohono O'odham
    Nation with Federal, State and local governments or other Indian tribes
    or their departments, agencies, or political subdivisions . . .''
    (Constitution, Article VI, Section 1(f); and

    WHEREAS, as a direct result of federal policies designed to break up
    tribal governments and Indian land bases and relocate tribes to
    economically unproductive reservation lands, Indian land holdings in
    the United States fell from 138 million acres in 1887 to 48 million
    acres in 1934, a loss that crippled tribes' ability to provide
    employment and economic opportunities; and

    WHEREAS, these nineteenth century policies were repudiated and replaced
    by the land-into-trust acquisition provisions of the Indian
    Reorganization Act of 1934 (25 U.S.C. Sec. 465) and other land
    acquisition authorities which authorize the Secretary of the Interior
    to acquire lands in trust for the benefit of Indian tribes, thereby
    providing for the acquisition of land bases that are essential to meet
    the needs of tribal governments, including economic development; and

    WHEREAS, despite the Department of the Interior's ongoing trust
    obligation, after acquiring land in trust for the Mashpee Wampanoag
    Tribe in 2015, the United States has withdrawn from a suit defending
    its trust acquisition and, as a direct result, the Tribe is now facing
    the loss of its reservation lands; and

    WHEREAS, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act,
    introduced as H.R. 5244 and companion bill S. 2628, will protect the
    trust status of Mashpee Wampanoag Tribe's reservation; and

    WHEREAS, ``[tlhe Nation's written comments to federal, state, and local
    governments on laws and rules proposed by those entities must be
    approved by the Tohono O'odham Legislative Council.'' (1 Tohono O'odham
    Code Chapter 3, Section 3102); and

    WHEREAS, the Tohono O'odham Nation strongly supports the protection of
    all tribal trust lands, and the Agricultural and Natural Resources
    Committee recommends that the Legislative Council support the Mashpee
    Wampanoag Tribe Reservation Reaffirmation Act.

    NOW THEREFORE BE IT RESOLVED that the Tohono O'odham Legislative
    Council calls upon the United States Congress to enact the Mashpee
    Wampanoag Tribe Reservation Reaffirmation Act and any subsequent
    federal legislation protecting the trust status of Mashpee Wampanoag
    Tribe's reservation.

    BE IT FINALLY RESOLVED that the Tohono O'odham Legislative Council
    authorizes and directs the Chairman of the Nation and appropriate
    Legislative Council delegations to advocate for the enactment of the
    Mashpee Wampanoag Tribe Reservation Reaffirmation Act.

    The foregoing Resolution was passed by the Tohono O'odham Legislative
    Council on the 3rd day of May, 2018 at a meeting at which a quorum was
    present with a vote of 2,875.6 FOR; -0- AGAINST; -0- NOT VOTING; and
    209.0[06] ABSENT, pursuant to the powers vested in the Council by
    Article VI, Section 1(f); and Article VII, Section 2(c) and 2(d) of the
    Constitution of the Tohono O'odham Nation, adopted by the Tohono
    O'odham Nation on January 18, l986; and approved by the Acting Deputy
    Assistant Secretary--Indian Affairs (Operations) on March 6, 1986,
    pursuant to Section 16 of the Act of June 18, 1934 (48 Stat. 984).
            ATTEST:                       TOHONO O'ODHAM LEG. COUNCIL
            Evonne Wilson, Leg.
            Secretary                     Timothy Joaquin, Leg. Chairman
            3rd day of May, 2018          3rd day of May, 2018

    Said Resolution was submitted for approval to the office of the
    Chairman of the Tohono O'odham Nation on the 3rd day of May, 2018 at
    1:48 o'clock, p.m., pursuant to the provisions of Section 5 of Article
    VII of the Constitution and will become effective upon his approval or
    upon his failure to either approve or disapprove it within 48 hours of
    submittal.

    [X] APPROVED on the 4th day of May, 2018 at 1:30 o'clock, p.m.

                                          TOHONO O'ODHAM NATION
                                          Edward D. Manuel, Chairman
                                  Tonto Apache Tribe,
                          Tonto Apache Reservation #30,
                                                Payson, Arizona

                                                           June 4, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    group based on technical legal issues. We urge Congress to use its
    plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                                 Vice Chairman,
                                                    Tonto Apache Tribe.
           USET--United South and Eastern Tribes, Inc.,
                                                 Washington, DC

                                                         April 27, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        We write on behalf of United South and Eastern Tribes Sovereignty
    Protection Fund (USET SPF) to respectfully urge the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, to ensure swift
    enactment of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act
    (H.R. 5244 and S. 2628).
        USET SPF is an intertribal organization comprised of twenty-seven
    federally recognized Tribal Nations, ranging from Maine to Florida to
    Texas.\1\ USET SPF is dedicated to enhancing the development of
    federally recognized Tribal Nations, to improving the capabilities of
    Tribal governments, and assisting USET SPF Member Tribal Nations in
    dealing effectively with public policy issues and in serving the broad
    needs of Indian people.
    ---------------------------------------------------------------------------
        \1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
    of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
    Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
    Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
    (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
    Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
    Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
    Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
    (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
    Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
    (ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
    Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
    Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
    (NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
    (LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
    ---------------------------------------------------------------------------
        The Tribal land base is a core aspect of Tribal sovereignty,
    cultural identity, and represents the foundation of our Tribal
    economies. USET SPF Tribal Nations, including the Mashpee Wampanoag
    Tribe, continue to work to reacquire our homelands, which are a
    fundamental to our existence as sovereign governments and our ability
    to thrive as vibrant, healthy, self-sufficient communities. And as our
    partner in the trust relationship, it is incumbent upon the federal
    government to prioritize the restoration of our land bases.
        However, the Mashpee Wampanoag Tribe's reservation--which was
    established with the strong support of surrounding local governments--
    is threatened by litigation brought by a group of individual citizens
    opposed to Tribal sovereignty. This jeopardizes the ability of the
    Mashpee Wampanoag Tribe to rebuild its economy and provide essential
    government services to its citizens, which are the fundamental goals of
    the land-into-trust process. The Mashpee Wampanoag Tribe Reservation
    Reaffirmation Act simply provides legal certainty to the status of the
    Tribe's trust land, allowing these efforts to proceed forward.
        As a federally recognized Tribal Nation, it is critical for the
    Mashpee Wampanoag Tribe to restore its homelands. We urge Congress to
    use its authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act. Should you have any questions or require
    further information, please contact Ms. Liz Malerba, USET SPF Director
    of Policy and Legislative Affairs, at (XXX)X-XXXX.

                Sincerely,

            Kirk Francis,                 Kitcki A. Carroll,
            President                     Executive Director

                TESTIMONY OF THE UNITED SOUTH AND EASTERN TRIBES

                          SOVEREIGNTY PROTECTION FUND

         For the Record of the House Natural Resources Subcommittee on
    Indigenous Peoples of the United States Legislative Hearing on, ``H.R.
                      375, H.R. 312, and the RESPECT Act''

                                 April 17, 2019

        The United South and Eastern Tribes Sovereignty Protection Fund
    (USET SPF) is pleased to provide the House Natural Resources
    Subcommittee on Indigenous Peoples of the United States with the
    following testimony for the record of its legislative hearing on,
    ``H.R. 375, H.R. 312, and the Requirements, Expectations, and Standard
    Procedures 3 for Executive Consultation with Tribes (RESPECT) Act.''
    USET SPF appreciates the Subcommittee's willingness to begin its work
    in the 116th Congress with two issues of great import to USET SPF and
    across Indian Country: the restoration of Tribal homelands and the
    strengthening of Tribal consultation requirements.
        USET SPF is a non-profit, inter-tribal organization representing 27
    federally recognized Tribal Nations from Texas across to Florida and up
    to Maine.\1\ USET SPF is dedicated to enhancing the development of
    federally recognized Tribal Nations, to improving the capabilities of
    Tribal governments, and assisting USET SPF Member Tribal Nations in
    dealing effectively with public policy issues and in serving the broad
    needs of Indian people. This includes advocating for the full exercise
    of inherent Tribal sovereignty.
    ---------------------------------------------------------------------------
        \1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
    of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
    Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
    Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
    (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
    Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
    Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
    Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
    (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
    Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
    (ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
    Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
    Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
    (NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
    (LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
    ---------------------------------------------------------------------------
    Restoration of Tribal Homelands
        The Tribal Nations located in the eastern part of what is now the
    United States have a lengthier history when it comes to the systematic
    dispossession of our lands as a result of hundreds of years of federal
    (and before that, colonial) policies. In the wake of these policies, a
    majority of USET SPF Tribal Nations hold only a fraction of their
    homelands and some remain landless.
        In response to federal policies that stripped us of our land base,
    the Department of the Interior (DOI) has, for nearly 85 years, restored
    Tribal lands through trust acquisitions to enable Tribal Nations to
    build schools, health clinics, hospitals, housing, and provide other
    essential services to Tribal citizens. Over this period, DOI has
    approved trust acquisitions for approximately 5 million acres of former
    Tribal homelands, which represents only a small fraction of the more
    than 100 million acres lost through Federal policies of removal,
    allotment, and assimilation.
        USET SPF Tribal Nations continue to work to reacquire our
    homelands, which are fundamental to our existence as sovereign
    governments and our ability to thrive as vibrant, healthy, self-
    sufficient communities. And as our partner in the trust relationship,
    it is incumbent upon the federal government to prioritize the
    restoration of our land bases. The federal government's objective in
    the trust responsibility and obligations to our Nations must be to
    support healthy and sustainable self-determining Tribal governments,
    which fundamentally includes the restoration of lands to all federally
    recognized Tribal Nations, as well as the legal defense of these land
    acquisitions.
        No Tribal Nation should remain landless. All Tribal Nations,
    whatever their historical circumstances, need and deserve a stable,
    sufficient land base--a homeland--to support robust Tribal self-
    government, cultural preservation and economic development. The federal
    government should ensure every Tribal Nation has the opportunity to
    restore its homelands, regardless of the concerns of other units of
    government, private citizens, or other interests. This is a necessary
    function of the U.S. government in delivering upon the trust
    responsibility and obligations to Tribal Nations. Regaining a land base
    is essential to the exercise of Tribal self-government. When the
    federal government holds land in trust for a Tribal Nation, the Tribal
    Nation is able to exercise jurisdiction over the land, including over
    individuals' actions and over taxation. This jurisdiction allows the
    Tribal Nation to protect its people and to generate economic growth,
    which in turn encourages the flourishing of the Tribal Nation's
    cultural practices. Jurisdiction over territory is a bedrock principle
    of sovereignty, and Tribal Nations must exercise such jurisdiction in
    order to fully implement the inherent sovereignty they possess. Just as
    states exercise jurisdiction over their land, Tribal Nations must also
    exercise jurisdiction, thereby promoting government fairness and parity
    between state governments and Tribal Nation governments.
        While USET SPF member Tribal Nations ultimately seek full
    jurisdiction and management over our homelands without federal
    government interference and oversight, we recognize the critical
    importance of the restoration of our land bases through the land-into-
    trust process. We further recognize that the federal government has a
    trust responsibility and obligation to Tribal Nations in the
    restoration and management of trust lands. With this in mind, it is
    vital that the land-into-trust process be available to and applied
    equally to all federally recognized Tribal Nations. This parity is
    central to the federal government's legal and moral obligations to all
    of Indian Country.
        The fundamentally incorrect 2009 decision in Carcieri v. Salazar
    has created a deeply inequitable 2-class system, in which some Tribal
    Nations have the ability to restore the homelands stolen from them and
    others do not. This 2-class system serves to deny these Tribal Nations
    a critical component of the trust relationship, vital aspects of the
    exercise of inherent sovereignty, and the opportunity to qualify for
    several government programs. To add insult to injury, in the years
    following the decision, the rhetoric surrounding the need to correct
    this grave injustice has been perverted by those who seek to undermine
    the acquisition of trust lands for Tribal Nations. This has led to
    widespread misunderstanding about the purpose and effects of a fix.
        As Congress (and other branches of the federal government)
    approaches the restoration of Tribal homelands, USET SPF continues to
    repeat that this basic correction is simply that. It returns us to the
    status quo prior to 2009--a rigorous process for the acquisition of
    trust land for ALL federally recognized Tribal Nations. This long
    overdue fix does not confer any additional benefits or supersede any
    existing law, nor is it about anything other than the rightful
    restoration of Tribal homelands.
        USET SPF continues to call for the immediate passage of a fix that
    contains the two features necessary to restore parity to the land-into-
    trust process: (1) a reaffirmation of the status of current trust
    lands; and (2) confirmation that the Secretary has authority to take
    land into trust for all federally recognized Tribal Nations. USET SPF
    extends its gratitude to Rep. Tom Cole for his continued introduction
    of bi-partisan legislation that would right this wrong.
    RESPECT Act
        Another essential aspect of the federal trust responsibility and
    obligations to Tribal Nations is the duty to consult on the development
    of federal policies and actions that have Tribal implications. This
    requirement is borne out of the sacred relationship between the federal
    government and Tribal Nations, as well as numerous treaties, court
    cases, laws, and executive actions. It is a recognition of our inherent
    sovereignty and self-determination.
        However, the duty to consult, despite existing policies and
    agreements, including Executive Order (E.O.) 13175, is not consistently
    undertaken or applied, nor is it codified in law. As a result, Tribal
    Nations continue to experience inconsistencies in consultation
    policies, the violation of consultation policies, and mere notification
    of federal action as opposed to a solicitation of input. Letters are
    not consultation. Teleconferences are not consultation. Providing the
    opportunity for Tribal Nations to offer guidance and then failing to
    honor that guidance is not consultation. Meaningful consultation is a
    minimal standard for evaluating efforts to engage Tribal Nations in
    decision-making, and in the context of high-stakes infrastructure
    projects, Tribal consent is required to fulfill the federal treaty and
    trust responsibilities. The determination of what level of consultation
    is required should come from Tribal Nations. Meaningful consultation
    requires that dialogue with Tribal partners occur with a goal of
    reaching consent.
        Indeed, the relationship between the United States and Tribal
    Nations began as one of mutual consent to treaty terms and other
    agreements, even if the Tribal Nations were under duress. That mutual
    consent principle should continue, though of course applied this time
    in an honorable fashion. In the short term, we must move beyond the
    requirement for Tribal consultation via Executive Order to a
    strengthened model achieved via statute. In the long term, we must
    return to the achievement of Tribal Nation consent for federal action
    in recognition of sovereign equality.
        It is time that the U.S. work to reform the Tribal consultation
    process, as conducted by agencies across the federal government. USET
    SPF strongly supports the codification of consultation requirements for
    all federal agencies and departments. This is consistent with our
    efforts to modernize the federal trust relationship, including ensuring
    that Tribal Nations are full and equal participants in the shaping of
    federal Indian policy.
        With this in mind, USET SPF supports the spirit and intent of the
    discussion draft of the Requirements, Expectations, and Standard
    Procedures for Executive Consultation with Tribes (RESPECT) Act. We
    commend Chairman Grijalva for beginning an important dialogue on how to
    strengthen consultation requirements. USET SPF is especially pleased to
    see that the RESPECT Act would apply to all federal agencies and
    departments, including independent agencies, as each of these entities
    shares equally in the federal trust responsibility and obligations.
        We are also pleased that the Chairman has released the RESPECT Act
    as a discussion draft. We believe there are opportunities to further
    refine and strengthen this draft legislation, including addressing
    issues related to the achievement of Tribal Nation consent, as well as
    supporting inter-agency coordination and training, and the creation of
    an Indian desk at the Office of Management and Budget. In addition, we
    share some concern about the unintentionally narrow scope of the Act.
    We look forward to the opportunity to work with Chairman to sharpen the
    legislative language and ensure the RESPECT Act is appropriately
    comprehensive.

                                     ______

                                    UTE INDIAN TRIBE,
                         Ute Tribal Business Committee,
                                            Fort Duchesne, Utah

                                                          June 12, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for the Mashpee Wampanoag Tribe Reservation Reaffirmation
            Act

        Dear Chairman Bishop, Ranking Member Grijalva, Chairman Hoeven, and
    Vice Chairman Udall:

        On behalf of my Tribe, we respectfully urge that the Senate Indian
    Affairs Committee, and the House Natural Resources Committee and its
    Subcommittee on Indian and Alaska Native Affairs, do everything
    possible to ensure swift enactment of the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act (H.R. 5244 and S. 2628).

        Every federally recognized tribe in the United States should be
    entitled to a federally-protected reservation where it can exercise its
    sovereignty, protect its culture, and benefit from the federal laws and
    programs that are tied to having reservation land. The Mashpee Tribe's
    reservation--which was established with the strong support of
    surrounding local governments--is threatened by litigation brought by a
    NIMBY group based on technical legal issues. We urge Congress to use
    its plenary authority to ensure that the Mashpee Tribe is not forever
    rendered perpetually landless by enacting the Mashpee Wampanoag Tribe
    Reservation Reaffirmation Act.

                Sincerely,

                                                   Luke Duncan,
                                                              Chairman.

                                     ______

                            THE WACCAMAW INDIAN PEOPLE,
                                                     Conway, SC

                                                     September 30, 2018

    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

        Dear Congressman:

        I am writing in support of H.R. 5244. I know that you are the
    ranking member of the House Natural Recourses Committee and it is your
    participation with that committee that I believe is very key at this
    moment in time. I fear that your committee, surrendering the authority
    to reaffirm the Mashpee Wampanoag's Tribal Reservation, will harm real
    people and a real culture, in the near future. Mashpee should not be
    forced to jump through hopes that no one else does. Indians already
    have to meet arbitrary standards that never apply to non-Indians.

        I realize that your job is a difficult one and that no matter which
    step you take, one side is happy, the other side disappointed. This
    issue needs to be raised above the ``feels good today'' status, to a
    level that will support this country and Native Culture, into the
    future generations.

        The Mashpee Wampanoag are real. They are real fathers, mothers,
    sons, daughters and friends. We are real people who have made a strong
    contribution to this country. Our (Indian) people, serve more per
    capita in the United States Armed Forces than any other ethnic group.
    49 of our people are awarded the congressional Medal of Honor and
    countless of our people have died to protect your position as a United
    States Congressman and all freedoms enjoyed by every citizen of this
    country, except the Indian people.

        The history and culture of this country is predated by that of the
    Indian communities by centuries. As an American, we cannot afford to
    lose it, least our history be a mere 249 years old. As an Indian, our
    people deserve to feel secure in what we have earned over the years. We
    should not be subjected to the ``to and fro'' threats, to our people
    and society.

        Congressman, please support H.R. 5244 and give us back some
    security! Thank you for your time today and for what you do for this
    country.

                I remain sincerely,

                                       Harold (Buster) Hatcher,
                                                 Chief of the Waccamaw.
                                   Yankton Sioux Tribe,
                                                     Wagner, SD

                                                           June 1, 2018

    Hon. Rob Bishop,
    Hon. Raul Grijalva,
    House Committee on Natural Resources,
    Washington, DC 20515.

    Hon. John Hoeven,
    Hon. Tom Udall,
    Senate Committee on Indian Affairs,
    Washington, DC 20510.

    Re: Support for H.R. 5244/S. 2628, the Mashpee Wampanoag Tribe
            Reservation Reaffirmation Act

        Dear esteemed Members of Congress:
        I am writing on behalf of the Yankton Sioux Tribe to advocate for
    the Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R. 5244
    and S. 2628). We strongly urge the Senate Indian Affairs Committee, and
    the House Natural Resources Committee and its Subcommittee on Indian
    and Alaska Native Affairs, to ensure the reaffirmation of the Mashpee
    Tribe's Reservation.

        The Mashpee Wampanoag Tribe is a federally recognized tribe with a
    reservation located within its historical homeland in Massachusetts.
    This reservation was established in accordance with the Indian
    Reorganization Act and with strong local government support. The
    Mashpee Tribe has been successful in rebuilding and providing for its
    members, as well as establishing great relationships with surrounding
    local governments. The Mashpee Tribe's reservation is threatened by
    litigation that could disestablish the reservation, which has not
    happened since the Termination era.

        The Mashpee Tribe is not asking for new or special rights, only the
    reaffirmation of its reservation. If Congress does not exercise its
    plenary authority, the Mashpee Tribe's reservation and means of self-
    sufficiency will be lost. This is consistent with the federal
    government's trust obligations to federally recognized tribes. Please
    enact this important legislation.

                Sincerely,

                                            Robert Flying Hawk,
                               Chairman, Business and Claims Committee.

                                     ______

    [LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
                                OFFICIAL FILES]

    Submission for the Record by Vanessa L. Ray-Hodge

      --NCAI Comments on Tribal Trust Compliance and Federal
                Infrastructure Decision-Making, November 30, 2016

                                     [all]