[Senate Hearing 116-77]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 116-77

                       S. 279, S. 790, AND S. 832

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION
                               __________

                              MAY 1, 2019
                               __________

         Printed for the use of the Committee on Indian Affairs
         
                  
                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
                  

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
38-002 PDF                 WASHINGTON : 2019                    



                      COMMITTEE ON INDIAN AFFAIRS

                  JOHN HOEVEN, North Dakota, Chairman
                  TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska               JON TESTER, Montana,
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                CATHERINE CORTEZ MASTO, Nevada
MARTHA McSALLY, Arizona              TINA SMITH, Minnesota
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Jennifer Romero, Minority Staff Director and Chief Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 1, 2019......................................     1
Statement of Senator Cortez Masto................................    35
Statement of Senator Graham......................................     3
Statement of Senator Hoeven......................................     1
Statement of Senator Merkley.....................................     5
Statement of Senator Udall.......................................     3

                               Witnesses

Fire Thunder, Cecelia, President, Oglala Lakota Nation Education 
  Coalition......................................................    25
    Prepared statement...........................................    27
Harris, Hon. William, Chief, Catawba Indian Nation...............    10
    Prepared statement...........................................    12
Suppah, Hon. Ron, Council Member, Confederated Tribes of Warm 
  Springs........................................................    22
    Prepared statement...........................................    23
Tahsuda, III, John, Principal Deputy Assistant Secretary, Indian 
  Affairs, U.S. Department of the Interior.......................     6
    Prepared statement...........................................     8

                                Appendix

Response to written questions submitted by Hon. Catherine Cortez 
  Masto to John Tahsuda III......................................    54
Response to written questions submitted by Hon. Tom Udall to:
    Hon. William Harris..........................................    54
    John Tahsuda III.............................................    55
Letters submitted for the record from:
    Keith Miller, City Councilmember At-large City of Kings 
      Mountain...................................................    50
    William C. Miller, Jr., President/CEO, American Gaming 
      Association................................................    49
Rosenblum, Ellen F., Attorney General, Oregon Department of 
  Justice, prepared statement....................................    45

 
                       S. 279, S. 790, AND S. 832

                              ----------                              


                         WEDNESDAY, MAY 1, 2019


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m. in room 
628, Dirksen Senate Office Building, Hon. John Hoeven, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. JOHN HOEVEN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    The Chairman. We will call this hearing to order. Good 
afternoon. Thanks to all of our witnesses for being here.
    Today the Committee will receive testimony from our 
witnesses on the following bills: S. 279, the Tribal School 
Federal Insurance Parity Act; S. 790, a Bill to Clarify Certain 
Provisions of Public Law 103-116, the Catawba Indian Tribe of 
South Carolina Land Claims Settlement Act of 1993 and for other 
purposes; and S. 832, a Bill to Nullify the Supplemental Treaty 
Between the United States of America and the Confederated 
Tribes and Bands of Indians of Indians of Middle Oregon, 
Concluded on November 15th, 1865.
    On January 30, 2019, Senators Thune and Rounds introduced 
S. 279, the Tribal School Federal Insurance Parity Act. 
Senators Udall, Heinrich, Barrasso, and Tester are co-sponsors.
    S. 279 amends Section 498 of the Indian Health Care 
Improvement Act and allows for tribal grant schools operating 
grants under the Tribally Controlled Schools Act of 1988 to be 
eligible for participation in a Federal employee health 
benefits and Federal employees group life insurance programs. 
According to the Office of Personnel Management, consultation 
with the Departments of Interior and Health and Human Services, 
tribal grant schools are ineligible to receive coverage from 
the Federal employee health benefits and the Federal employee 
group life insurance programs without a change to the Indian 
Health Care Improvement Act that explicitly includes schools 
operating grants under the Tribally Controlled Schools Act of 
1988.
    However, BIE-operated and BIE contract schools are eligible 
to receive coverage from the Federal Employee Health Benefits 
and the Federal Employees Group Life Insurance programs, thus 
creating a disparity. Currently, there are 128 tribal grant 
schools in 23 States across the Country. Staff from these 
schools cannot receive benefits from the Federal employee 
health benefits and the Federal employee group life insurance 
group programs.
    By not being able to access these programs, tribal grant 
schools are using education dollars to provide health insurance 
coverage to its employees. Allowing participation in these 
Federal insurance programs will allow tribal grant schools to 
use education funds for recruiting and retaining educators and 
providing supplies and other needed resources.
    On March 13th, 2019, Senator Graham introduced S. 790. 
Senators Burr and Tillis have joined as co-sponsors. Twenty-six 
years ago, Congress passed the Catawba Indian Tribe of South 
Carolina Land Claims Settlement Act of 1993. Under this law, 
the Catawba Tribe, in exchange for reservation lands, Federal 
and State money payments, and other Federal services, agreed to 
drop a land claims suit it had filed in Federal court. This 
settlement act provided that the tribe would be subject to the 
laws of the State of South Carolina in regard to conducting 
gaming within the State.
    Through a series of court challenges, the State of South 
Carolina successfully asserted its rights under the settlement 
act to prohibit the tribe from conducting any gaming within its 
borders. S. 790 will provide authority for the Secretary of the 
Interior to take land into trust on behalf of the tribe for the 
purpose of gaming in the bordering State of North Carolina. The 
bill explicitly details the parcel of land where gaming will 
take place and requires that the tribe conduct their gaming 
activities within the Federal regulatory framework of the 
Indian Gaming Regulatory Act.
    Finally, the Committee will hear testimony on S. 832, a 
Bill to Nullify the Supplemental Treaty Between the United 
States of America and the Confederated Tribes and Bands of 
Indians of Middle Oregon, Concluded on November 15th, 1865. On 
March 14th, 2019, Senator Merkley introduced S. 832. Senator 
Wyden joined as a co-sponsor.
    In 1855, the Warm Springs Tribe entered into a treaty with 
the Federal Government that ceded the tribe's territorial 
interests in the State of Oregon in exchange for consideration. 
It included a reservation and monetary compensation. In 1865, 
the Superintendent of Indian Affairs for Oregon drafted a 
supplemental treaty which provides the tribes rights under the 
original 1855 treaty. The supplemental treaty prohibited the 
rights of tribal members to hunt and fish on their own lands, 
as well as required tribal members to seek permission from the 
superintendent when they chose to leave the reservation.
    S. 832 will nullify this supplemental 1865 treaty and leave 
the 1855 as the only recognized and legal treaty between the 
United States and the Confederated Tribes and Bands of Indians 
of Middle Oregon.
    With that, I will turn to Vice Chairman Udall for his 
opening statement.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you very much, Chairman Hoeven, for 
calling today's legislative hearing.
    The bills before us work to uphold the Federal Government's 
trust and treaty responsibilities by providing tribal 
communities with access to tools and resources they need to 
thrive. S. 279, the Tribal School Federal Insurance Parity Act, 
that I co-sponsored with Senator Thune, would ensure that all 
three types of Bureau of Indian Education schools have equal 
access to much-needed Federal tools and resources to recruit 
and retain teachers.
    Employees working at federally-operated BIE schools and BIE 
schools operated by tribes through 638 contracts are already 
eligible to pay into and use the Federal Employee Health 
Benefits and Federal Employees Group Life Insurance programs. 
But under current law, BIA 297 grant schools aren't eligible. 
Access to these Federal programs allows direct service and 638 
BIE schools to offer teachers low-cost, high value benefit 
packages, a hiring incentive that can be a major factor in 
convincing educators to choose BIE over other school systems.
    This will make sure 297 grant schools have those same 
incentives in their recruitment tool kits. S. 297 would also 
free up funding at these grant schools for other critical 
resource needs, like updated text books, healthier food 
services and gifted and talented programs. All add value, 
improve Native student outcomes and further increase the appeal 
of working at BIE schools for new educators looking to start 
careers and families. Recruitment and retention of qualified 
teachers in schools serving Native communities is one of my top 
priorities.
    Last month, Senator Tester and I reintroduced the Native 
Educator Support and Training Act, or the NEST Act. This bill 
would establish scholarships, loan forgiveness plans and 
professional development programs for educators who commit to 
teaching in Native communities. Both S. 279 and the NEST Act 
represent important steps to improve Native educational 
outcomes and address the teacher shortages impacting Native 
communities across Indian Country. I hope we can move them 
swiftly to markup.
    Turning briefly to Senator Graham's bill, S. 790, and 
Senator Merkley's bill, S. 832, both bills address issues 
specific to their tribal constituents. Our hearing today will 
allow the Committee to gather feedback on these bills. I look 
forward to learning more about the issues they propose to 
address.
    Thank you, again, Mr. Chairman, for calling this hearing.
    The Chairman. Senator Graham, rumor has it you have 
something else going on today. So I'm going to turn to you for 
your statement.

               STATEMENT OF HON. LINDSEY GRAHAM, 
                U.S. SENATOR FROM SOUTH CAROLINA

    Senator Graham. Well, compared to where I've been, this is 
a real pleasure. We had a little contentious hearing in 
Judiciary. I'm honored to be here and thank you both for 
allowing me to make a brief introduction.
    I want to introduce Chief Bill Harris from the Catawba 
Indian Nation in Rock Hill, along the South Carolina and North 
Carolina border. He was elected chief in 2011. He was involved 
in tribal governance long before that, fighting for the 
individual rights of the Catawba people in tribal government 
for years. He serves on boards and commissions including the 
Indian Health Services Direct Service Tribes Advisory 
Committee, the United South and Eastern Tribes Board of 
Directors, and the South Carolina Native American Advisory 
Committee.
    He comes from a long tradition of service and is deeply 
rooted in the Catawba culture. His grandfather was a Catawba 
chief and his grandmother was a legendary Catawba potter who 
taught Chief Harris the traditional Catawba art form which he 
continues to practice to this day.
    S. 790 is a bill I've introduced with Senators Tillis and 
Burr from North Carolina. As I said, the Catawba Nation covers 
both South Carolina and North Carolina. In 1993, Congress 
passed the Catawba Indian Land Claims Settlement Act, to settle 
the Catawba land claims for the restoration of their 
recognition as a tribe, working out terms of the settlement 
with South Carolina and different terms with North Carolina.
    It authorized, on a mandatory basis, the establishment of a 
reservation of up to 4,200 acres. Under that legislation, the 
Federal Government's trust relationship with the tribe was 
restored, but the effect of that legislation was to leave the 
tribe impoverished, without claim to their Native land and 
without a means to financially support themselves.
    More than 25 years later, the tribe's reservation is only 
1,000 acres, the tribe is locked in poverty and the tribe's 
understanding that it had negotiated the right to acquire land 
within its congressionally-established service area in North 
Carolina has been disputed, largely due to poor drafting of the 
act. I am from South Carolina. Nobody, nobody, objects to the 
Catawbas having land in North Carolina and establishing a 
gaming operation, as long as it consistent with the law.
    All the key negotiators, including members of Congress, the 
Interior Secretary, North Carolina tribal officials involved in 
negotiating the Catawba Settlement Act, understand that the 
tribe could make mandatory acquisitions in its North Carolina 
service area, and have signed written statements to that 
effect. That is what was intended.
    However, the language of the Act has been deemed ambiguous 
on the Tribe's right to make limited land acquisitions in that 
State. Senators Bird, Tillis and myself have introduced 
legislation to right that wrong. The bill specifically gives 
the Secretary this authority to make that decision. In a sense, 
this legislation is a technical correction to allow the tribe 
to do what Congress envisioned, nothing more, nothing less. 
This legislation alone will not correct the long history of the 
Catawba Indians being taken for granted; however, it will be a 
giant step forward to empower them.
    Our government has promised a bright future for the Catawba 
people, but they have been deprived of that future through a 
tortured legal process that has left them with little to show 
for giving up their land claims and treaty rights. And they 
did, they gave it up. They did not get what was promised in 
return. S. 790 will right that wrong.
    So to both of you, I have never seen anything as difficult 
as land issues involving Native Americans. This is really a 
complex area of the law. I just appreciate both the Democrats 
and Republicans on this Committee listening to Chief Harris 
about trying to right a wrong that was created 25 years ago.
    Thank you all very much.
    The Chairman. Thank you, Senator Graham.
    Senator Merkley, likewise I would offer you an opportunity 
to give a statement concerning your bill today.

                STATEMENT OF HON. JEFF MERKLEY, 
                    U.S. SENATOR FROM OREGON

    Senator Merkley. Thank you so much, Mr. Chairman and Vice 
Chairman Udall. I am so pleased you have included this bill to 
right a historic wrong regarding the fraudulent 1865 treaty. 
Senator Wyden is a full partner in this, a co-sponsor, and 
Congressman Greg Walden. The Warm Springs Reservation is within 
his district in Oregon. He is introducing a companion bill on 
the House side.
    A big welcome to Council Member Ron Suppah of the 
Confederated Tribes of the Warm Springs Reservation, who has 
come here to testify in support of this bill. He has served 
more than a decade on the council, he has served as the 
chairman. He has worked to expand communications with the 
neighboring tribes and with his membership. He is of the 
Tyghpum band of the Itcheeskin speaking band that signed the 
1855 treaty, the legitimate treaty. He also serves as a keeper 
of longhouse songs. Welcome, great to have you here.
    Over 150 years ago, the Tribes of Middle Oregon negotiated 
and signed a treaty, the 1855 treaty, ratified in 1859, that 
served as the bedrock of the trust relationship between the 
Warm Springs Tribes and the U.S. Government. It established 
what is today known as the Warm Springs Reservation and 
required that the remaining lands held by the tribes be ceded 
to the U.S.
    As part of negotiations, the tribes insisted upon retaining 
their off-reservation hunting, fishing and gathering rights, 
which they have continued to exercise to this day. Ten years 
after the initial treaty, J.W. Perit Huntington, an 
unscrupulous superintendent of Indian Affairs for Oregon, drew 
up a supplemental treaty that would have forced the tribes on 
the Warm Springs Reservation to give up their off-reservation 
rights and agree to a hall pass system to even leave the 
reservation. This is now known as the 1865 treaty.
    Huntington secured signatories to the treaty through fraud 
and deception. Despite ample historical records that 
conclusively show the 1865 treaty was a fraud, it still was on 
the books.
    Senator Hatfield, as his last piece of legislation, when he 
was wrapping up his 30 years of Senate service, attempted to 
disallow this treaty, to cancel this treaty. But that work now 
falls to us today. So this bill, S. 832, will nullify the 
fraudulent 1865 treaty and correct this historic wrong.
    I would like to note that the Oregon Attorney General's 
office has issued a legal opinion stating unequivocally that 
the treaty is unenforceable. I have a letter to enter for the 
record from her. I also have a statement from the Oregon 
Governor that notes that it is the declared policy of the 
Office of the Governor of the State of Oregon that the 
fraudulent Huntington treaty is to be regarded as a nullity 
with no effect whatsoever. It is past time to get this done.
    The Chairman. Without objection.
    Senator Merkley. There is bipartisan support from Oregon, 
and I appreciate the Committee considering this legislation. 
Thank you.
    The Chairman. Thank you, Senator Merkley. Senator Cortez 
Masto, any opening statements before we proceed to our 
witnesses?
    All right. With that, we will turn to our witnesses. First, 
we will hear from Mr. John Tahsuda, who is Principal Deputy 
Assistant Secretary for Indian Affairs, Department of Interior; 
then from the Honorable William Harris, Chief of the Catawba 
Indian Nation, Rock Hill, South Carolina; then the Honorable 
Ron Suppah, Council Member, Confederated Tribes of Warm 
Springs, Oregon, welcome. And then from Ms. Cecelia Fire 
Thunder, President, Oglala Lakota Nation Education Coalition, 
from Martin, South Dakota. Thank you for being here.
    With that, we will turn to Assistant Secretary Tahsuda.

       STATEMENT OF JOHN TAHSUDA, III, PRINCIPAL DEPUTY 
           ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Mr. Tahsuda. Good afternoon, Chairman Hoeven, Vice Chairman 
Udall, members of the Committee. My name is John Tahsuda, I am 
the Principal Deputy Assistant Secretary for Indian Affairs at 
the Department of the Interior. Thank you for the opportunity 
to present this statement on behalf of the Department regarding 
the following bills: S. 279, the Tribal School Federal 
Insurance Parity Act; S. 832, a bill to nullify the 
Supplemental Treaty between the United States of America and 
the Confederated Tribes and bands of Indians of Middle Oregon, 
concluded on November 15, 1865, and S. 790 a bill to clarify 
certain provisions of Public Law 103-116, the Catawba Indian 
Tribe of South Carolina Land Claims Settlement Act of 1993.
    First, I would like to address S. 279, the Tribal School 
Federal Insurance Parity Act. This would amend the Indian 
Health Care Improvement Act to allow tribal grant schools 
operating under the Tribally Controlled Grant Schools Act, to 
participate in the Federal Employees Health Benefits Program. 
Presently, Public Law 100-297 prohibits the vast majority of 
tribally controlled schools from participating in the FEHB 
program which can create significant financial strains on 
schools and disadvantaged school leaders in recruiting talented 
educators.
    Prior to 2010, tribal employers in general lacked access to 
FEHB benefits for their employees. With the passage of 25 
U.S.C. 1647(b), under the Indian Health Care Improvement Act, 
tribal employers and urban Indian organizations carrying out 
programs pursuant to Title V of the Indian Health Care 
Improvement Act, or under the Indian Self-Determination and 
Education Assistance Act, became eligible to participate in the 
FEHB program. Participation in the FEHB program reduced costs 
associated with providing employees benefits, as well as aided 
these organizations in their recruitment and retention efforts.
    Currently, all BIE-operated schools participate in the 
FEHB. Additionally, four BIE-funded tribally-operated schools 
also participate in the FEHB program, because these schools are 
pursuant to the Indian Self-Determination and Education 
Assistance Act. Under 25 U.S.C. 1647(b), tribal employers 
operating under the Indian Self-Determination and Education 
Assistance Act self-determination contracts and Title V 
contracts are eligible to purchase FEHB coverage for their 
employees. However, that does not extent eligibility to the 
tribally controlled schools under the Tribally Controlled Grant 
School Act. Therefore, 126 of the Bureau of Indian Education's 
tribally controlled schools that operate under the Grant School 
act may not purchase FEHB coverage under 25 U.S.C. 1647(b).
    The Department understands and supports the efforts of its 
tribal partners in seeking a legislative fix that will allow 
parity for schools operating under the Tribally Controlled 
Schools Act. The continued inability of these schools to access 
FEHB creates unfair budgetary constraints and exacerbates an 
already difficult task in recruiting highly-qualified teachers 
in often geographically isolated schools.
    As such, the Department supports S. 279, the Tribal School 
Federal Insurance Parity Act, and looks forward to increasing 
parity for tribally controlled grant schools. I would also like 
to add personally a thank you to Cecelia Fire Thunder for her 
tireless efforts in trying to resolve this problem on behalf of 
tribal schools.
    Next, I would like to address S. 832, the Confederated 
Tribes and Bands of Middle Oregon, today known as the 
Confederated Tribes of the Warm Springs Reservation. They 
signed a treaty on June 25th of 1855, ceding most of their 
aboriginal territory to the United States. This area now makes 
up most of what we know as Central Oregon. On November 15th, 
1865, they were forced into signing a supplemental treaty which 
purported to restrict them from leaving the reservation without 
written permission from the agency superintendent. These 
restrictions are unreasonable restrictions on the rights of the 
Warm Springs people. We are aware of no other tribe that is 
currently subject to such a restrictive treaty. As such, the 
Department has no objection to S. 832.
    Finally, S. 790, a bill to clarify certain provisions of 
Public Law 103-116, the Catawba Indian Tribe of South Carolina 
Land Claims Settlement Act of 1993. This provides congressional 
authorization for the Secretary of the Interior to take certain 
land into trust on behalf of the Catawba Indian Nation for the 
purpose of conducting a gaming facility. Generally, the bill 
authorizes the tribe to own and operate a gaming facility on 
land identified in the bill and requires that gaming facility 
to operate in accordance with the Indian Gaming Regulatory Act.
    Currently, Section 14 of the Catawba Settlement Act states 
that the Indian Gaming Regulatory Act shall not apply to the 
Tribe, and with regard to gaming, gives the Tribe only those 
rights and responsibilities set forth in the settlement 
agreement with the State of South Carolina. The bill is 
intended to make the IGRA applicable to the Tribe, including 
the important protections and authorities that it provides for 
tribes generally, such as the option of entering into a tribal-
State Class III gaming compact with the State, enactment of 
tribal gaming ordinances and the use of net gaming revenues.
    However, we have several technical suggestions to offer. 
First, the language in Section 1(b) focuses on IGRA's 
application to gaming facility, but does not address the 
application of IGRA's provisions to the Tribe. As indicated 
previously, the exclusion provision at Section 14 of the 
underlying Settlement Act specifically applies to the Tribe. To 
address this, the bill could be amended to clarify that IGRA is 
applicable to the Tribe, that only land identified in S. 790 
would be gaming-eligible for the tribe, and that the land 
acquired under the bill's provisions would qualify as Indian 
lands under IGRA.
    In addition, the Settlement Act at Section 12(m) exempts 
the Tribe from the provisions of 25 C.F.R. Part 151. This is 
the Department's fee-to-trust regulation which we rely on for 
making discretionary trust acquisitions. The language of 
Section 1(c) of S. 790 implies that the acquisition of land for 
trust purposes by the Secretary would be discretionary, rather 
than a mandatory acquisition. The bill could be amended to 
indicate whether, fi this is a discretionary acquisition, the 
Secretary should apply 25 C.F.R. Part 151, including provisions 
of the National Environmental Policy Act, or the bill could 
clarify whether the land to be acquired will be designated as 
on-reservation or off-reservation. On-reservation would be 
processed under 25 C.F.R., Section 151.10, or if it is deemed 
off-reservation, would be processed under 25 C.F.R. Section 
151.11. This change would create more clarity regarding the 
administrative process for placing the land into trust.
    We are happy to work with the bill's sponsors and the 
Committee on these changes. Thank you for the opportunity to 
testify before the Committee. I look forward to answering any 
questions you may have.
    [The prepared statement of Mr. Tahsuda follows:]

  Prepared Statement of John Tahsuda, III, Principal Deputy Assistant 
       Secretary, Indian Affairs, U.S. Department of the Interior
    Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of 
the Committee. My name is John Tahsuda and I am the Principal Deputy 
Assistant Secretary for Indian Affairs at the Department of the 
Interior.
    Thank you for the opportunity to present this statement on behalf 
of the Department regarding the following bills: S. 279, the Tribal 
School Federal Insurance Parity Act; S. 790, A bill to clarify certain 
provisions of Public Law 103-116, the Catawba Indian Tribe of South 
Carolina Land Claims Settlement Act of 1993; and S. 832, A bill to 
nullify the Supplemental Treaty Between the United States of America 
and the Confederated Tribes and Bands of Indians of Middle Oregon, 
concluded on November 15, 1865. Each of these bills is discussed below.
S. 279
    S. 279, the Tribal School Federal Insurance Parity Act, would amend 
the Indian Health Care Improvement Act (25 U.S.C. 1647b) to allow 
tribal grant schools operating under the Tribally Controlled Grant 
Schools Act (TCGSA) to participate in the Federal Employees Health 
Benefits (FEHB) Program. Presently, Public Law 100-297 prohibits the 
vast majority of tribally controlled grant schools from participating 
in the FEHB Program, which can create significant financial strains on 
schools and disadvantage school leaders in recruiting talented 
educators. The Department supports S. 279.
    The mission of the Bureau of Indian Education (BIE) is to provide 
quality education opportunities from early childhood through life in 
accordance with a tribe's needs for cultural and economic well-being, 
in keeping with the wide diversity of Federally recognized Indian 
tribes and Alaska Native villages as distinct cultural and governmental 
entities. The BIE manages a school system with 169 elementary and 
secondary schools and 14 dormitories providing educational services to 
47,000 individual students, with an Average Daily Membership of 41,000 
students in 23 States. The BIE also operates two post-secondary schools 
and administers grants for 29 tribally controlled colleges and 
universities and two tribal technical colleges.
    Prior to 2010, tribal employers, in general, lacked access to FEHB 
benefits for their employees. With the passage of 25 U.S.C. 1647b under 
the Indian Healthcare Improvement Act (IHCIA), tribes, tribal 
employers, and urban Indian organizations carrying out programs 
pursuant to Title V of the IHCIA or under the Indian Self Determination 
and Education Assistance Act became eligible to participate in the FEHB 
Program. Participation in the FEHB Program reduced costs associated 
with providing employee benefits as well as aided organizations in 
their recruitment and retention efforts.
    Currently, all BIE-operated schools participate in FEHB. 
Additionally, four BIE-funded tribally operated schools also 
participate in FEHB Program. These tribally controlled schools operate 
pursuant to the ISDEAA. Under 25 U.S.C. 1647b, tribal employers 
operating ISDEAA self-determination contracts and Title V contracts are 
eligible to purchase FEHB coverage. However, 25 U.S.C. 1647b does not 
extend eligibility to tribally-controlled schools under the TCGSA. 
Therefore, 126 of BIE's tribally-controlled schools that operate 
pursuant to the TCGSA may not purchase FEHB coverage under 25 U.S.C. 
1647b.
    In April 2012, the U.S. Office of Personnel Management sent a 
letter to the Department's Office of the Solicitor seeking the 
Solicitor's opinion regarding OPM's legal conclusion regarding the 
ineligibility of schools operating under TCGSA for FEHB as the TCGSA 
schools are not within the scope of eligible tribal employers under 25 
U.S.C. 1647b. In June 2012, the Solicitor issued an opinion confirming 
OPM's conclusion that schools operating under TCGSA are ineligible for 
FEHB. In October 2017, a tribal grant school representative requested 
the Solicitor to reconsider their position. However, the Solicitor 
stated its legal determination would stand.
    The Department understands and supports the efforts of its tribal 
partners in seeking a legislative fix that would allow parity for 
schools operating under the TCGSA. The continued inability of these 
schools to access FEHB creates unfair budgetary constraints and 
exacerbates an already difficult task of recruiting highly-qualified 
teachers in often geographically-isolated schools. As such, the 
Department supports S. 279, the Tribal School Federal Insurance Parity 
Act, and looks forward to increasing parity for tribally controlled 
grant schools.
S. 832
    The Confederated Tribes and Bands of Middle Oregon, today known as 
the Confederated Tribes of the Warm Springs Reservation, signed a 
treaty on June 25, 1855 ceding most of their aboriginal territory to 
the United States. That area makes up most of what we now know as north 
central Oregon.
    On November 15, 1865, the Tribes were forced into signing a 
``Supplemental'' treaty, which is the subject of this legislation and 
further restricted the rights of tribal members to the extent that, 
among other things, they could not leave the reservation without 
written permission from the Agency Superintendent. These restrictions 
are unreasonable restrictions on the rights of the Warm Springs people. 
We are aware of no other tribe that is currently subject to such a 
restrictive treaty.
    S. 832, ``A bill to nullify the Supplemental Treaty Between the 
United States of America and the Confederated Tribes and Bands of 
Middle Oregon, concluded on November 15, 1865,'' would provide that the 
Supplemental Treaty shall have no force or effect. As such, the Bureau 
of Indian Affairs has no objection to S. 832.
S. 790
    S. 790, ``A bill to clarify certain provisions of Public Law 103-
116, The Catawba Indian Tribe of South Carolina Land Claims Settlement 
Act of 1993, and for other purposes,'' provides Congressional 
authorization for the Secretary of the Interior to take certain land 
into trust on behalf of the Catawba Indian Nation (Tribe) for the 
purpose of conducting a gaming facility.
    Generally, the bill authorizes the Tribe to own and operate a 
gaming facility on land identified in the bill, and requires the gaming 
facility to ``operate in accordance with the Indian Gaming Regulatory 
Act'' (IGRA). Currently, section 14 of the Catawba Settlement Act 
states ``[t]he Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) 
shall not apply to the Tribe'' (emphasis added) and, with regard to 
gaming, gives the Tribe the rights and responsibilities set forth in 
the settlement agreement and State (of South Carolina) law.
    The bill is intended to make the IGRA applicable to the Tribe, 
including the important protections and authorities that it provides 
for tribes generally, such as the option of entering into a Tribal-
State class III gaming compact with a state, enactment of tribal gaming 
ordinances, and the use and net gaming revenue.
    We have several technical concerns with the language. First, the 
language in Section 1(b) focuses on the IGRA's application to the 
gaming facility, but does not address application of the IGRA's 
provisions to the Tribe. As indicated previously, the exclusion 
provision at section 14 of the underlying Settlement Act specifically 
applies to the Tribe. To address this, the bill could be amended to 
clarify that IGRA is applicable to the Tribe, that only land identified 
in S. 790 would be gaming eligible for the Tribe; and that land 
acquired under the bill's provisions qualifies as ``Indian lands'' 
under the IGRA. Indian lands under IGRA include all lands within the 
limits of any Indian reservation; and any lands title to which is 
either held in trust by the United States for the benefit of any Indian 
tribe or individual or held by any Indian tribe or individual subject 
to restriction by the United States against alienation and over which 
an Indian tribe exercises governmental power.
    In addition, the Settlement Act, at section 12(m), exempts the 
Tribe from the provisions of 25 C.F.R. Part 151, the Department's Fee-
to-Trust regulations, which the Department relies on for making 
discretionary trust acquisitions. The language at section 1(c) of S. 
790 implies that the acquisition of land for trust purposes by the 
Secretary would be a discretionary, rather than a mandatory 
acquisition. The bill could be amended to indicate whether, if this is 
a discretionary acquisition, the Secretary will apply 25 C.F.R. Part 
151, including provisions of the National Environmental Policy Act 
(NEPA), to this acquisition. Similarly, the Bill could clarify whether 
the land to be acquired will be designated as an on-reservation 
application, which would be processed under 25 C.F.R.  151.10, or as 
an off-reservation application processed under 25 C.F.R.  151.11. This 
change would create more clarity regarding the administrative process 
for placing the land into trust.
    The Department would be happy to work with the bill's sponsors and 
the Committee on these technical changes.
    Thank you for the opportunity to testify today before the 
committee. I look forward to answering any questions the Committee may 
have.

    The Chairman. Thank you, Secretary Tahsuda.
    Chief Harris.

 STATEMENT OF HON. WILLIAM HARRIS, CHIEF, CATAWBA INDIAN NATION

    Mr. Harris. Thank you, Chairman Hoeven, thank you, members 
of the Committee, for this opportunity to testify on S. 790, 
legislation that would bring a measure of justice to the 
Catawba people and lift a whole region of the Carolinas out of 
an economic hardship by creating up to 4,000 jobs.
    My name is William Harris. I serve as Chief of the Catawba 
Indian Nation. When I was a child, only 60 years ago, the 
Catawba Indian Nation was fully recognized by the Federal 
Government and exercised the level of sovereignty held by 
virtually every tribe in the United States. Since then, we have 
traveled a difficult path that brings us to this moment.
    In 1959, we became the only tribe in the eastern portion of 
the United States to be terminated by act of Congress. In 1980, 
we filed a lawsuit to regain our original reservations, whose 
boundaries are approximately 20 miles from the land that is 
subject to S. 790. This boundary also serves as the boundary 
between North and South Carolina, the two States where the vast 
bulk of our aboriginal lands lie.
    In 1993, we reached a settlement agreement with the State 
of South Carolina, which was implemented by act of Congress. In 
South Carolina, as I will describe briefly below, we are 
subject to many restrictions. However, in North Carolina, we 
understood, as did North Carolina and Federal officials, that 
we would have the status of a fully-restored tribe and be able 
to take land into trust that would not be restricted by our 
agreement with South Carolina. In South Carolina, we were 
promised IGRA-like gaming opportunities, as well as mandatory 
rights to reassemble our 4,000-acre reservation, and 
affirmation of the rights of our children to go to public 
schools.
    So why do we not have gaming? Why are we only able to add 
300 acres to our existing reservation? And why did we transfer 
our last remaining commercial lands to the local public school 
system, where our children have a 60 percent graduation rate? 
In other words, why we were deprived of the most important 
things we bargained for in return for giving up our lands?
    In brief, South Carolina taxed our gaming out of existence 
while recouping most of their contribution to our settlement. 
South Carolina denied us the right to game on our reservation, 
even though the State authorized casino cruises and our 
settlement agreement said, if the State authorizes gaming, we 
can do it as well.
    We were limited to acquiring new lands in certain zones, 
where it turned out that landowners would not sell, or they 
drastically increased prices to unreasonable levels. And 
finally, South Carolina charged us to send our kids to the 
local public school, putting the Tribe millions of dollars into 
debt, which we paid off last year, transferring our last 
remaining commercial properties to the school district.
    Obviously, we never would have agreed to this settlement 
with South Carolina if we had understood that it meant 
federally-enforced poverty for the Tribe. Our children at 
inter-tribal events and ceremonies meet and befriend children 
of other tribes, and the question is asked: Why can't we have 
education scholarships? Why don't we have community facilities, 
cultural programs and health care like they do? Why don't our 
children have jobs like them? Why are we in poverty while they 
prosper?
    S. 790 clarifies the original intent of the 1993 Act that 
the tribe could take land into trust in North Carolina without 
the restrictions of the Tribe's agreement with South Carolina. 
It would also apply the strict regulations of IGRA to the North 
Carolina facility, with one exception, Section 20. Even that 
exception can be eliminated, so long as Congress is clear that 
we can establish gaming operations on the proposed lands.
    It is important to note that the proposed location is 
within our aboriginal lands, our congressionally-established 
service area, our historical treaty-based hunting grounds and 
it is not off-reservation gaming, a term that is used to 
describe tribes that seek to go hundreds of miles from their 
aboriginal lands. We are staying within our heartland.
    We are happy to work with this Committee and the Department 
of Interior to address any technical concerns you may have. 
What I have just described to you all happened within my 
lifetime. This Committee has a chance to right a historical 
wrong, and I urge your support for S. 790.
    [The prepared statement of Mr. Harris follows:]

Prepared Statement of Hon. William Harris, Chief, Catawba Indian Nation
    Chairman Hoeven, Vice Chairman Udall and Members of the Committee, 
thank you for this opportunity to provide testimony regarding S. 790. I 
am here to express the full support of the Catawba Indian Nation 
(``Tribe'') for S. 790, which will clarify the rights restored to the 
Tribe in the Catawba Land Claims Settlement Act of 1993 (``Catawba 
Federal Settlement Act''), which itself reversed the 1959 termination 
of the Tribe's status. \1\ In doing so, it will bring justice to the 
Catawba and assure that Catawba gaming operations are subject to the 
same strict regulation as other tribal gaming operations. As we note 
below, S. 790 does not create any concerning precedent. Rather, it 
restores the original intent of the Catawba Federal Settlement Act, 
while limiting the Tribe's land acquisition to its congressionally 
established service area, which was deemed in the Act to be the 
equivalent of ``on or near reservation'' for certain purposes, 
reflecting its historic significance to the Tribe. In this letter, I 
would like to provide some additional background on the need for the 
legislation and dispel some significant misstatements made by a project 
opponent. As an attachment, I have included a Myth/Fact sheet which 
directly addresses various questions that have been raised in our 
discussions with Committee staff.
---------------------------------------------------------------------------
    \1\ Catawba Tribe of South Carolina Division of Assets Act, Pub. L. 
86-322, 73. Stat. 592 (Sept. 21, 1959) (formerly codified at 25 U.S.C. 
  931-938).
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    Purpose of S. 790. By authorizing the acquisition of a 17-acre site 
in Kings Mountain, Cleveland County, North Carolina, S. 790 will 
fulfill the understanding of the Tribe, as well as Congressional and 
North Carolina leaders, that the Tribe could have land taken into trust 
in the Tribe's congressionally established service area in North 
Carolina, where it would not be subject to the restrictions the Tribe 
had negotiated in its settlement with South Carolina. Additionally, S. 
790 will apply the strict requirements of the Indian Gaming Regulatory 
Act (IGRA) to the Tribe's activities at the Kings Mountain site, 
bringing Catawba gaming into the center of Federal Indian gaming policy 
by addressing an ambiguity in the Catawba Federal Settlement Act, which 
provides that the Tribe is not subject to IGRA.
    Working with our North Carolina friends to create 4,000 jobs and 
support economic development. Before advancing on this initiative to 
take land into trust in Kings Mountain, Cleveland County, the Tribe 
approached both the Kings Mountain and Cleveland County leadership, who 
welcomed the Tribe's proposal with open arms. See Attachment 1, * 
Letters from Local Officials. This project will spark extraordinary 
economic development, providing critically needed employment in a hard 
hit area of North Carolina and South Carolina (the project is only one 
mile from the state border), in addition to allowing the Catawba to 
become economically self-sufficient. It will immediately create 
thousands of construction jobs, and up to 4,000 permanent jobs. 
Notably, the Tribe and Cleveland County have reached a detailed inter-
governmental agreement to address public safety, taxation, 
jurisdiction, and other issues associated with the establishment of a 
casino/resort operation at the proposed location.
---------------------------------------------------------------------------
    * The information referred to has been retained in the Committee 
files.
---------------------------------------------------------------------------
    Confirming the understanding of all parties that the Tribe could 
have land taken into trust in North Carolina. Regrettably, the Catawba 
Federal Settlement Act, whereby the Catawba gave up claims in both 
North and South Carolina, is widely regarded as one of the worst land 
claim settlements for a Tribe in modern Federal Indian policy. Of 
course, the Catawba negotiated its settlement agreement with South 
Carolina at a time when the Tribe was at its weakest and therefore 
least able to resist the demands of South Carolina. The Act, which 
among other things implements the South Carolina agreement, was so 
troubling that this very Committee, in the accompanying Senate Report, 
emphasized:

         Therefore, beyond furtherance of the general federal policies 
        of encouraging consensual settlements, fostering Indian self-
        determination, and restoring terminated Indian tribes, the 
        Catawba Land Claim Settlement Act has no general Indian policy 
        implications. The Committee expressly intends that it not serve 
        as precedent or a model for any other settlement and that it 
        shall neither set forth nor impact in any way federal Indian 
        policy.

    Senate Report 103-124 at 27 (August 5, 1993). Notwithstanding its 
many flaws, the Tribe thought it had secured certain important rights 
through its enactment. The central, but not exclusive, purpose of the 
Catawba Federal Settlement Act was to settle the litigation brought by 
the Tribe in South Carolina over the dispossession of its former 15-
mile square reservation (``Original Reservation'') established in 
treaties with the British Crown. \2\ As a result, the majority of the 
Catawba Federal Settlement Act's provisions address the Tribe's 
relationship with South Carolina, which has received all the benefits 
it secured under the Act, while the commitments made to the Tribe have 
largely been thwarted. However, the Tribe also gave up its land claims 
in North Carolina and understood, as did Congressional and North 
Carolina leadership, that it had secured the right to take land into 
trust in North Carolina within its congressionally established service 
area.
---------------------------------------------------------------------------
    \2\ The Original Reservation was in the Province of Carolina. When 
the Province of Carolina was divided into two states, the state 
boundary line was set to trace the northern boundary of the Original 
Reservation placing it entirely in South Carolina while making a 
triangular indent into North Carolina. Of course, the Original 
Reservation was only a small portion of the aboriginal territory of the 
Catawba. As previously stated, the Kings Mountain site is less than 20 
miles from the boundary of the Original Reservation.
---------------------------------------------------------------------------
    In support of the Tribe's understanding, the following have 
submitted signed statements: President Reagan's Secretary of the 
Interior, Manuel Lujan (who approved the original settlement 
agreement); former Congressman Bill Richardson, the chairman of the 
House subcommittee with jurisdiction over the original legislation; 
both House and Senate congressional staff (including Chairman Inouye's) 
directly responsible for the legislation; the Chair of the North 
Carolina Commission on Indian Affairs and the North Carolina Governor's 
general counsel at the time of passage of the Act; and other relevant 
Federal and Tribal officials. See Attachment 2, * Statements of Key 
Leaders Regarding Tribal Rights in North Carolina and excerpts 
immediately below.
---------------------------------------------------------------------------
    * The information referred to has been retained in the Committee 
files.
---------------------------------------------------------------------------
    Interior: Key Interior officials involved in the negotiation of the 
Catawba Land Claim Settlement Act support the Catawba's understanding 
regarding the application of the Act to the Tribe's Federal service 
area in North Carolina, including Manual Lujan, who served as Secretary 
of the Interior during the negotiation of the Act, and Bill Ott, who 
was the Interior witness and representative at the Senate hearing on 
the Act and also the Eastern Region Director for the Bureau of Indian 
Affairs at that time.

   Secretary Manuel Lujan:

         ``With the Eastern Cherokee within its borders, North Carolina 
        was familiar with federally recognized tribes and a tribe's 
        right to acquire land into trust. This was not a controversial 
        issue at the time. For that reason, whether the Tribe could 
        take land into trust in North Carolina did not require lengthy 
        discussion. It was already understood that a mandatory land 
        into trust acquisition by the Catawba would be an inevitable 
        outcome of the Act.''

         ``At the time, those of us reviewing the Act knew that the 
        creation of a service area in North Carolina meant that the 
        Tribe could fully exercise its sovereignty by acquiring land 
        into trust in North Carolina. It was our mutual understanding 
        that the Catawba could apply for mandatory trust status for its 
        North Carolina lands.''

         ``Your support for expeditious processing of the Catawba's 
        mandatory application would be greatly appreciated and would 
        bring a measure of justice to a Native people who have suffered 
        repeated wrongs .''

   Bill Ott, Eastern Region Director:

         ``I was directed to represent Indian Affairs at a 
        Congressional Hearing regarding proposed language for the Act 
        which also incorporated Federal Recognition of the Catawba 
        Tribe and provided for a Service Area which included adjacent 
        counties in the State of North Carolina.. It was the 
        understanding of Indian Affairs that the delineation of the 
        Tribal Service Area outside of the State of South Carolina 
        relative to the Federal Recognition Process was not an issue 
        since the South Carolina Strictures would not apply there.

         ``[B]ased on my understanding of the Act, I suggested [to the 
        Tribe] that taking land into trust pursuant to the Act's land 
        acquisition provisions and establishing a gaming facility 
        within the Tribe's delineated Service Area outside of the State 
        of South Carolina (i.e., within one of the six counties in 
        North Carolina) would be more feasible and compatible with 
        their federal recognition status under the Act.''

    Tribe. The two principal tribal officials responsible for 
negotiating the terms of the Act were Chief Gilbert Blue and Executive 
Director Wanda George Warren. Both have very strong recollections 
regarding the negotiation of acquisition rights throughout the Tribe's 
service area, including the North Carolina portion.

   Gilbert Blue, Catawba Chief:

         ``It was our understanding that the Tribe would have full 
        tribal rights within the six counties of North Carolina that we 
        reserved under the Settlement Act. Rights that included taking 
        land into trust in North Carolina for economic development.''

         ``With economic development in mind we did extensive research 
        with Pat Clark into the fee-to-trust process and fully expected 
        that we could use lands in the North Carolina service area as 
        part of our mandatory takings ``as on or near the 
        reservation.'' To the best of my knowledge, the other parties 
        we negotiated with understood this as well.''

         ``Our willingness to sign the Settlement Act was premised on 
        inclusion of the six- county service area. That portion of the 
        Act was added at the insistence of the Tribe and we would not 
        have signed without it. We had hoped for similar rights in 
        South Carolina but agreed to the limitations in the Act 
        pertaining to South Carolina to address our neighbors concerns 
        about environmental issues.''

         ``I understood, as did the other Tribal leaders working on the 
        Act, that the Tribe would be able to take land into trust in 
        North Carolina pursuant to the mandatory provisions in the Act 
        that authorize the Secretary to take land into trust that is 
        not contiguous to the Tribe's current reservation and not 
        within the Act's expansion zones.''

   Wanda George Warren, Catawba Executive Director:

         ``We knew that the creation of a service area in North 
        Carolina meant that the Tribe could fully exercise its 
        sovereignty by acquiring land into trust in North Carolina.''

         ``The State of North Carolina did not have the same concerns 
        regarding tribal sovereignty and jurisdiction because of its 
        experience with the Eastern Cherokee.''

         ``I understood, as did Pat [Patrick Clark, Chairperson, North 
        Carolina Commission of Indian Affairs] and those of us working 
        on the Act, that the Tribe would be able to take land into 
        trust in North Carolina pursuant to the Act, and therefore on a 
        mandatory basis, so long as the land was within the Tribe's 
        service area.''

    Congress. The Tribe has spoken with key Congressional staff 
involved in the development of the Act, including Patricia Zell, Staff 
Director of the Senate Committee on Indian Affairs under the 
chairmanship of the late-Daniel Inouye (himself a great friend of the 
Tribe) and Marie Howard Fabrizio, a senior staffer on the House Natural 
Resources Committee. Both support the Tribe's right to acquire land in 
the North Carolina service area under the Act.

   Marie Howard Fabrizio and Patricia Zell:

         ``We are writing to provide a personal perspective on the 
        Catawba Indian Land Claims Settlement Act in support of the 
        Catawba Indian Nation's request to take land into trust on a 
        mandatory basis within the Tribe's Federal service area in 
        North Carolina.''

         ``The land-into-trust applications for the establishment of 
        this reservation were mandatory in nature, not discretionary.''

         ``Additionally, the Federal service area in North Carolina 
        would not be subject to those restrictions imposed by the 
        Catawba Settlement Act that only reference South Carolina.''

         ``The scope of the Tribe's rights in the Federal service area, 
        including the North Carolina counties, was elaborated upon in 
        the Senate report. .This language should be broadly read 
        consistent with the intent of Congress to aid the Catawbas and 
        consistent [with] the Indian canon of construction that 
        ambiguities are to be read in favor of Tribes.In the case of 
        the Catawba, the Tribe has mandatory acquisition rights.''

         ``We urge you to support the mandatory and expedited taking of 
        land into trust for the Tribe.''

    North Carolina. The key participants involved in the negotiation of 
the North Carolina service area, including the North Carolina 
officials, confirm that the premise and promise of the Act included 
that the Tribe would have the right to take land into trust in North 
Carolina pursuant to the Act and that this was the official position of 
the State of North Carolina and that the South Carolina restrictions 
would not apply in North Carolina. Set forth below are excerpts from a 
statement of the Chairperson of the North Carolina Commission of Indian 
Affairs, as well as from a statement of the general counsel to then-
North Carolina Governor Martin confirming the Commission's authority to 
represent North Carolina in the Catawba Settlement Act negotiations.

   Patrick Clark:

         ``I served as the Chairperson of the North Carolina Commission 
        of Indian Affairs ('Commission'), from 1990-1993 and in that 
        capacity was centrally involved in shaping North Carolina 
        policy relevant to the Catawba Indian Nation and negotiating 
        the Catawba Indian Land Claims Settlement Act of 1993 
        ('Act').''

         ``I, and Chief Blue, agreed that inclusion of a service area 
        in North Carolina was essential to ensuring that Catawba tribal 
        members residing in North Carolina would retain benefits 
        similar to those preserved for Catawba in South Carolina, 
        including the benefit of pursuing economic development projects 
        to benefit the Catawba Indian Nation.''

         ``I understood, as did Chief Blue and Catawba representatives 
        working on the Act, that the Tribe would be able to take land 
        into trust in North Carolina pursuant to the Act, and therefore 
        on a mandatory basis, so long as the land was within the 
        Tribe's service area. This was a clear understanding during the 
        drafting and negotiating of the Act.''

         ``The state was aware that the Catawba could mandatorily 
        acquire land into trust under the Act's provisions.''

         ``It was always my understanding that the Catawba could apply 
        for mandatory trust status for its North Carolina lands.''

   James R. Trotter, General Counsel, North Carolina Governor 
        James Martin:

         ``Based on both the law and my personal experience, the NCSCIA 
        is the lead agency representing the State in all matters 
        pertaining to Indian Affairs.''

         ``I have reviewed the affidavit provided by Patrick Clark, who 
        was the Chairperson of the NCSCIA during negotiation and 
        passage of the Catawba Indian Land Claims Settlement Act of 
        1993 and I have no objections to its content, nor any reason to 
        dispute her testimony.''

         ``Then-NCSCIA Chairperson Patrick Clark has affirmed that it 
        was the position of the State of North Carolina as represented 
        by the NCSCIA that the Catawba Indian Nation, pursuant to the 
        mandatory land acquisition provisions in its settlement act 
        would be able to take land into trust in North Carolina, but 
        limited to that portion of the Catawba's service area that 
        falls within North Carolina. As such, this represents the 
        official position of the State of North Carolina during those 
        negotiations.'' (Emphasis added.)

    By expressly authorizing the acquisition of the Kings Mountain 
site, the Congress would be fulfilling this original understanding of 
the drafters of the Catawba Federal Settlement Act.
    Staying inside the Catawba's congressionally established service 
area and aboriginal lands. It was important to the Tribe to identify a 
site within the Tribe's congressionally established federal service 
area and aboriginal lands.
    The Catawba Federal Settlement Act treats the Tribe's entire 
federal service area, including the location that the Tribe now 
proposes to have taken into trust, for certain purposes as ``on or near 
the reservation'', specifically stating at  4(b) that ``[f]or the 
purpose of eligibility for Federal services made available to members 
of federally recognized Indian tribes because of their status as Indian 
tribal members, Members of the Tribe in the Tribe's service area shall 
be deemed to be residing on or near a reservation.'' In the exact same 
paragraph, the Catawba Federal Settlement Act states that ``the Tribe 
and the Members shall be eligible for all benefits and services [not 
just health services as some allege] furnished to federally recognized 
Indian tribes and their members because of their status as Indians.'' 
(emphasis added). This same paragraph in the Catawba Federal Settlement 
Act reinforces that: ``the Tribe shall be eligible to the special 
services performed by the United States for tribes because of their 
status as Indian tribes.'' The taking of land into trust for tribes and 
their members is one of the most important services offered by the 
Department of the Interior (hence, the BIA Office of Trust Services, 
which handles tribal trust land issues). As the letters of support 
demonstrate (see Attachment 2), the Tribal leadership negotiated for 
these rights in return for the major cessions made by the Tribe.
    The Tribe's Use and Occupancy of the King's Mountain Area is well 
established. The Catawba Federal Settlement Act was intended to settle 
a land claim brought by the Nation for its previous 144,000 acre, 15-
mile square reservation (``Original Reservation''), which had been 
established pursuant to two treaties with the British Crown. In the 
Senate Report accompanying the Catawba Federal Settlement Act, this 
Committee noted:

         The Catawba Indian Tribe signed two treaties with King George 
        III in 1760 and 1763. The Catawbas gained recognized title to 
        144,000 acres under the Treaty of Pine Tree Hill made in 1760, 
        which was confirmed with the Treaty of Augusta was made in 1763 
        with the King's Superintendent of Indian Affairs and the 
        Governors of the Southern Provinces [a term which encompassed 
        both present day North and South Carolina]. \3\ In those two 
        treaties the Tribe ceded its aboriginal territory and reserved 
        a 144,000-acre tract comprising much of the present states of 
        North and South Carolina.

    \3\ The Southern Provinces within British America consisted of the 
Province of Maryland, the Colony of Virginia, the Province of Carolina 
(in 1712 split into North and South Carolina) and the Province of 
Georgia. See Charter of Carolina (March 24, 1663), Lillian Goldman Law 
Library, Yale Law School, available at http://avalon.law.yale.edu/
17th_century/nc01.asp. 
---------------------------------------------------------------------------
    Senate Report 103-124 at 15-16. The border of the Original 
Reservation, located in the heart of the Catawba's aboriginal lands, 
and well within the Tribe's congressionally established service area, 
is less than 20 miles from the site identified in S. 790. Indeed, as 
the Tribe has often reminded the United States, Catawba scouts were 
instrumental in the victory of the American revolutionaries at Kings 
Mountain \4\ over British forces, setting the stage for victory in the 
South. Further, the Kings Mountain area is identified as Catawba 
hunting grounds in more than one document, including the Treaty of 
Augusta (1763). For a more detailed description of the Catawba Nation's 
ties to the Kings Mountain area, see Attachment 3, * Catawba Historical 
Nexus to the Congressionally Established Service Area in North Carolina 
and http://www.native-languages.org/ncarolina.htm, providing a 
historical map of the aboriginal territory in the State, a copy of 
which is attached. \5\

    \4\ The Kings Mountain battlefield is just south of the state 
border, but the movements of the forces were throughout both North and 
South Carolina in that vicinity.
    \5\ The Eastern Band in its letter of opposition cites the Treaty 
of July 20, 1777 (also known as the Treaty of Long Island of Holston) 
assert that they ceded this specific land away and so it must be 
theirs. However, the Eastern Band does not reveal that this treaty was 
not between the Cherokee Nation as a whole with the United States, but 
rather was ``between the Commissioners from the State of North Carolina 
in Behalf of the said State of the One Part and the Subscribing Chiefs 
of That Part of the Cherokee Nation Called the Overhill Indians of the 
Other Part.'' The ``Overhill Cherokee'' is the term for the Cherokee 
people located in their historic settlements in what is now Tennessee 
on the west side of the Appalachian Mountains. See https://
tennesseeoverhill.com/overhill-cherokee-heritage/. The ``treaty'' 
itself is not specific to Cleveland County, but is a broad disavowal of 
any Overhill Cherokee claims to a broad swath of land stretching from 
the northern border of North Carolina to its southern border. As 
described in footnote 7 below, the U.S. Indian Claims Commission found 
that treaties of land cession did not indicate aboriginal title.
    * The information referred to has been retained in the Committee 
files.
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    There is no crossing of state lines, nor is an extraordinary 
precedent being set by the Kings Mountain site. First, the Catawba are 
just as much a North Carolina tribe as they are a South Carolina tribe. 
This is evident from the historical record, as well as from the Catawba 
Federal Settlement Act, which states that ``[i]n treaties with the 
Crown in 1760 and 1763, the Tribe ceded vast portions of its aboriginal 
territory in the present States of North and South Carolina in return 
for guarantees of being quietly settled on a 144,000-acre 
reservation.'' See  2(a)(4)(A). The Catawba Federal Settlement Act 
also provided for the Tribe to give up all subsequent land claims in 
North Carolina and established a service area that expressly included 
the North Carolina counties adjacent to York County, the location of 
the Tribe's current trust lands.
    Although the Tribe is not crossing state lines that issue is 
irrelevant in any case as the Department of the Interior has looked at 
and rejected prohibitions on so-called off-reservation acquisitions of 
``out of state'' lands where a tribe is near a border or where the land 
is within a tribe's service area. \6\
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    \6\  During the same period that the Catawba Federal Settlement Act 
was under consideration the Department of the Interior was considering 
revisions to its own fee-to-trust regulations at 25 C.F.R. Part 151. On 
July 15, 1991, the Department of the Interior proposed amendments to 
its existing regulations governing the fee-to-trust process. See 56 
Fed. Reg. 32278 (July 15, 1991). The Department's proposed amendments 
to 25 C.F.R. Part 151 included a new section governing the acquisition 
of lands ``located outside of and noncontiguous to an Indian 
reservation,'' as well as a new section titled, ``Considerations in 
evaluating requests when the land is located outside of and 
noncontiguous to an Indian reservation and will be used for gaming 
purposes.'' Id. As proposed, 25 C.F.R.  151.11(b) would have 
established a general rule preventing tribes from acquiring trust lands 
located in other states:----(b) The land to be acquired in trust 
should, in general, be located within the state(s) in which the tribe's 
reservation or trust lands are currently located. Exception to this 
requirement may be made for tribes which have lands in one state but 
are located near the border of another state, or tribes which have no 
trust lands. In situations where the land to be acquired is in a state 
in which the tribe is not located, the Secretary will give greater 
weight to the considerations concerning the effect of the land 
acquisitions on state and local governments. However, all other things 
being equal, the greater the distance of the land proposed to be taken 
in trust from the tribe's current or former reservation or trust land, 
the greater the justification required to take the land in trust. As 
warranted and relevant to the proposal under consideration, the 
justification could address such factors as the cost and ability to 
administer the land to be acquired in trust. In addition, applications 
for trust land located within an urbanized and primarily non-Indian 
community must demonstrate that trust status is essential for the 
planned use of the property and the economic benefits to be realized 
from said property.----Id. at 32279 (emphasis added). The Department 
published the final rule amending 25 C.F.R. Part 151 on June 23, 1995, 
after Congress had enacted the Catawba Federal Settlement Act. See 60 
Fed. Reg. Vol. 32874-79 (June 23, 1995). Importantly, the final rule 
did not include the general restriction against acquiring ``out of 
state'' land in trust on behalf of a tribe.----The Department 
ultimately rejected the proposal, stating, ``The provisions which 
prohibit off-reservation acquisitions of 'out-of-state' lands have been 
deleted.'' Id. at 32,876. In doing so, it cited tribal comments on its 
proposed regulation:----Section 151.11(b) Geographic Limitations 
Comment: Those provisions which prohibit off-reservation acquisitions 
of ``out-of-state'' lands (i.e., lands in a state other than that in 
which the acquiring tribe's ''reservation or trust lands'' are located) 
were opposed on the grounds that out-of-state lands may be historically 
significant, vital to tribal economic self-sufficiency, or within a 
designated tribal consolidation area or tribal service area.----60 Fed. 
Reg. 32875-76 (June 23, 1995)(emphasis added).
---------------------------------------------------------------------------
    The Tribe welcomes the strict imposition of IGRA's regulatory 
scheme on its gaming operations. The Catawba Federal Settlement Act set 
forth the Tribe's gaming rights in South Carolina, but it also broadly 
provides that IGRA does not apply to the Tribe. See Federal Settlement 
Act at  14(a) (``The Indian Gaming Regulatory Act.shall not apply to 
the Tribe.'') (internal citation omitted). This creates uncertainty 
regarding the regulation of Catawba gaming operations in North 
Carolina. For a host of reasons, including legal, financial, public 
safety and more, the Tribe will operate gaming at the Kings Mountain 
site in accordance with standards no less stringent than IGRA, whether 
or not IGRA is applied to the Tribe. Nonetheless, the Tribe supports 
Congress applying IGRA to the Tribe so that there are no lingering 
questions about the strictness of the Tribe's regulatory scheme, 
including the character of the Tribe's business partners.
    The Tribe is working with industry leaders to provide 
comprehensive, highly regulated casino/resort operations. Without 
supporting evidence, the Eastern Band of Cherokee Indians has suggested 
that the Nation is under the sway of unscrupulous developers and that 
this legislation would lead to an undermining of the Indian gaming 
regulatory framework nationwide. To the contrary, the Tribe has 
partnered with Delaware North, a 103-year old global food service and 
hospitality company, which operates in the lodging, sporting, airport, 
gaming, and entertainment industries. Delaware North employs 
approximately 60,000 people worldwide and has over $3.2 billion in 
annual revenues.
    The Eastern Band's assertions are an irrational distraction from 
the fundamental goal of this legislation--which is to bring justice to 
the Catawba and to allow the Catawba to have the same gaming rights as 
other Tribes, subject to the same strict regulation that other tribes 
are subject to. No one will manage or be associated in any way with 
Catawba gaming operations who cannot meet IGRA or higher standards. The 
Tribe's support for the application of IGRA to the Tribe's gaming 
operation in S. 790 is proof positive that the Tribe will not tolerate 
suspect parties in the management of its gaming operations.
    Our Eastern Band brothers and sisters. In historic times, the 
Catawba and the Cherokee were bitter enemies. However, over the last 
100 years we have been closely allied on many important issues of 
tribal sovereignty and tribal rights. There has also been significant 
inter-marriage between the two tribes and we consider the Cherokee to 
be our relatives. We have nothing but admiration for their success, not 
just in building a gaming empire consisting of two highly successful 
casinos, but more crucially in succeeding at lifting their people out 
of poverty. The Catawba aspire to a similar success for our own people. 
Because the Eastern Band has the experience, funding, and proven record 
of accomplishment in gaming, the Tribe has approached them on several 
occasions about partnering on the Kings Mountain project, but the 
Eastern Band leadership has not been interested. Nonetheless, as 
described immediately below, the Tribe has sought to be respectful of 
Eastern Band interests, without sacrificing Catawba rights.
    Staying outside of the Eastern Band's agreed upon ``Exclusive 
Gaming Zone.'' One very important consideration in identifying the 
Kings Mountain site was to stay outside of the Eastern Band's exclusive 
gaming zone. The Eastern Band, in its compact with the State of North 
Carolina, secured the exclusive right to live table gaming in all lands 
west of I-26 (``Eastern Band Exclusive Gaming Zone''), a line that 
roughly follows the generally agreed upon eastern edge of Cherokee 
lands. See Attachment 4, * Excerpt EBCI-NC Compact. The Kings Mountain 
site is approximately 55 miles east of I-26. Notably, it is only about 
20 miles from the boundary of the Original Catawba Reservation, which 
was in the center of Catawba aboriginal lands and which was the basis 
for the Catawba's land claim. The site is about 34 miles from the 
Tribe's current reservation lands.
---------------------------------------------------------------------------
    * The information referred to has been retained in the Committee 
files.
---------------------------------------------------------------------------
    Staying outside of the Eastern Band's Judicially Established 
Aboriginal Lands. The Cherokee Nation brought a successful claim for 
compensation for loss of aboriginal lands before the Indian Claims 
Commission. The Eastern Band joined into settlement of that claim. 
Before those claims could go forward there was a rigorous judicial 
process to determine the aboriginal lands of the Cherokee Nation. 
Attached is the map,* published by the Indian Claims Commission as part 
of its final report, showing not only the great size of the judicially 
established Cherokee aboriginal lands, but also that the Cherokee 
aboriginal lands do not include Cleveland County. \7\ See Attachment 
5.* As the face of the map itself states, ``This map portrays the 
results of cases before the U.S. Indian Claims Commission or U.S. Court 
of Claims in which an American Indian tribe proved its original tribal 
occupancy of a tract within the continental United States.'' The 
Cherokee, for reasons well known to the Catawba, could not prove 
aboriginal title to Cleveland County.
---------------------------------------------------------------------------
    \7\ A digitized version of the Indian Claims Commission's final map 
can be found here: https://www.loc.gov/item/80695449/. This definitive 
map should be contrasted with that of Charles C. Royce, which shows the 
territorial limits of the Cherokee and just reaches, at the boundary, 
Cleveland County. Royce did important map work, but with significant 
limitations. The Indian Claims Commission praises Royce's maps, but 
found that his maps show ``cessions'' but that ``often the cession did 
not match the true ownership of the land.'' United States Indian Claims 
Commission, Final Report, September 30, 1978, p. 127, fn. 1. This is 
because non-Indian negotiators were always asking Tribal leaders to 
cede land far beyond the holdings of their own tribe. In contrast to 
the Royce maps, the Indian Claims Commission goes on to state that 
``This map [meaning the Indian Claims Commission's final map] is a 
positive expression of land determined [in a rigorous process] to have 
been owned, without special reference to the cession or extinguishment 
processes.''
---------------------------------------------------------------------------
    On behalf of the Catawba people, I thank this Committee for its 
consideration of this important legislation. With the passage of S. 
790, the Committee will restore justice to the Catawba and enable us to 
lift all of our people out of poverty while rejuvenating an entire 
region of North and South Carolina.
    Attachment
                     Supplemental Written Testimony
    Why Section 20 of the Indian Gaming Regulatory Act should not be 
applied to the Tribe. The Section 20 exception in S. 790 was intended 
to make clear that the prohibition in IGRA on taking land into trust 
for gaming purposes after 1988 would not apply to this particular 
acquisition in North Carolina. This was to prevent confusion and 
conflict between the part of the bill where Congress authorizes gaming 
at this location, with the part where Congress applies IGRA. At the May 
1, 2019 hearing, one senator objected to this exception, principally 
arguing (1) that it would circumvent IGRA's consultation requirements 
with state and local officials and (2) that the Tribe should not be 
granted a new exception to Section 20, but fit into an existing 
exception, most notably the two-part determination.
    With regard to consultation, there likely is no more open or 
thorough process for consultation than the Congressional process 
(introducing a bill, holding a hearing, taking testimony, having a 
markup and doing this in both the Senate and the House), so official 
consultation is not being shorted in any way. Of course, in addition to 
the Congressional process, the Tribe has been in extensive consultation 
in North Carolina, leading to the full support of the two U.S. Senators 
from North Carolina, as well as strong local support. This is not a 
situation where legislation is being passed through the Senate without 
a hearing.
    With regard to whether the Tribe should fit into an existing 
Section 20 exception, from a policy perspective it is important to note 
that there are a number of exceptions to the 1988 restriction, with the 
one for land acquired through settlement of a land claim more relevant 
on the facts than the two-part. S. 790 is expressly intended to be a 
clarification of the Catawba Land Claims Settlement Act. As both Chief 
Harris and Principal Deputy Assistant Secretary Tahsuda testified, the 
Tribe did not receive the promised benefits of the original settlement; 
S. 790 is effectively an amendment to that act and the land claim 
settlement, cleared by the two NC Senators, to right an historic wrong. 
If the Tribe was required to go through the two-part determination it 
would have the effect of moving the decision to authorize the Secretary 
to take the land into trust from Congress/Interior to the state 
governor, essentially defeating the purpose of the bill which is for 
Congress to review how the Catawba were shorted and to provide an 
amendment that would restore the original intent of the land claim 
settlement.
    Why the Catawba Site is Not ``Off-Reservation Gaming''. The term 
``off-reservation gaming'' has been thrown around very loosely in the 
discussions regarding S. 790. It is worth noting that the American 
Gaming Association (AGA) supports tribal gaming in locations where a 
tribe has historical connections and that is also in reasonable 
proximity to a Tribe's existing land base and does not consider such 
gaming to be ``off-reservation'':

         AGA fully supports tribal gaming that is located on or near 
        tribal lands that are within the historical and current 
        territory of the tribe operating such gaming and is operated in 
        accordance with all applicable laws.

         However, locating tribal gaming facilities ``off-reservation'' 
        in areas where a tribe has limited, or no, historical 
        connections and is not in reasonable geographic proximity a 
        tribe's existing land or population base alters the 
        characteristics and intent of tribal government gaming. 
        Therefore, AGA supports the incorporation of more transparency 
        and additional bright-line standards into the U.S. Department 
        of Interior Bureau of Indian Affairs' approval processes. Such 
        standards should require a tribe to have both historical and 
        geographic connections to the land they are seeking to acquire 
        for off-reservation gaming.

         https://www.americangaming.org/policies/off-reservation-
        gaming/ Of course, the point of the AGA standards is to ensure 
        that tribes do not go far afield from their current locations. 
        By staying within its congressional established service area, 
        near to their current lands and within 25 miles of their 
        reservation as of 1988, the Catawba site meets both the spirit 
        and the letter of the AGA's standards.

    In a position paper titled ``AGA's Modernized Position On Off-
Reservation Tribal Gaming,'' the AGA provides definitions for both 
``historic connection'' and ``geographic connection''. See Attachment 
A. As described below, the Catawba site falls within both definitions.
    The Catawba Site meets the AGA requirement of a ``historic 
connection.'' With regard to a ``historic connection,'' the AGA states 
that it ``must be demonstrated [that a site is]. . . Part of a tribe's 
historic territory, in which there is historical documentation of a 
tribe's villages and occupancy, subsistence use in vicinity and/or 
exercised governance.'' The Catawba site easily meets this 
qualification (more detailed historic documentation can be found at 
Attachment B):

   Site area is within Tribe's Congressionally established 
        service area (which by statute is to be treated as ``on or near 
        reservation'' for the purposes of Federal services and 
        benefits);

   Site area is within the area covered by tribe's treaty with 
        Great Britain, to which the United States acceded (providing 
        for the preservation of hunting rights in this area);

   Site area is identified as Catawba hunting grounds, not only 
        in the treaty, but in subsequent colonial records;

   Site area is in Catawba River Valley, traditional waterway 
        of the Catawba (See Attachment C, Letter of Dr. David G. Moore, 
        ``In other words, decades of archaeological research provide 
        evidence of a long history of Catawba Indian occupation in the 
        Catawba River valley region of North Carolina.''; See 
        Attachment D, Letter of Professor James H. Merrell, Vassar, 
        regarding Catawba in North Carolina, ``. . .the Catawbas have 
        long called the Piedmont region of what would become North and 
        South Carolina `home.'. . . After the English arrived, the 
        Catawbas continued to hunt and farm in the Piedmont over a wide 
        area that straddled the state line.'');

   Site area has been identified by local historians as one of 
        active Catawba use and occupancy (See Attachment E, Letter of 
        Martin Mongiello, Executive Director, Presidential Service 
        Center, ``I have been studying and writing about the Catawba 
        Nation for a long time. . .It is a pleasure to certify that the 
        Catawba Indian Nation rightfully resided in . Cleveland County, 
        NC.'').

    The Catawba Site meets the AGA requirement of a geographic 
connection. The AGA emphasizes that any land developed should be in 
geographic proximity to a tribe and expressly provides ``that in no 
event shall the land exceed a 25-mile radius from the tribe's Indian 
lands held as of the adoption date of IGRA. . ..'' See Attachment A. As 
defined in IGRA, ``Indian lands'' refers to ``all lands within the 
limits of any Indian reservation. . ..'' 25 USC 2704(4)(A).
    Tribal reservations cannot be disestablished except by Act of 
Congress. \1\ On the adoption date of IGRA, the Tribe was pressing a 
land claim based on its original reservation. The Tribe's case was 
stronger than that of other Eastern tribes, which pressed for recovery 
of aboriginal lands, as the Catawba were seeking recovery of actual 
reservation lands (known as recognized title), as acknowledged by 
Interior:
---------------------------------------------------------------------------
    \1\ As the Senate Committee on Indian Affairs noted in its report 
accompanying the Catawba Settlement Act, as far back as the 1940's, 
Interior acknowledged that the land claim for the original reservation 
was probably valid: ``The Solicitor acknowledged that the land claim 
was probably valid and potentially worth more than $75,000; but for the 
next 16 years, while the Catawbas were under federal supervision, the 
U.S. Department of the Interior did nothing to help the Catawbas 
develop the basis of their claim or prosecute the claim.'' Senate 
Report 103-124, p. 18. That reservation was legally intact until the 
Tribe ceded it away in the land claim settlement in 1993, five years 
after adoption of the IGRA.

         We conclude that the Tribe can establish a prima facie case 
        under the Non-Intercourse Act, that the 1840 Treaty was void, 
        and that the Tribe is therefore entitled to recovery of its 
        reservation. . When the United States succeeded to Great 
        Britain's sovereignty in 1783, our new government did not 
        abrogate the 1763 Catawba Treaty. Therefore, according to 
        settled rules of international law, which are acknowledged by 
        the U.S. Supreme Court, the Catawba retained a vested right in 
        their reservation as sacred as the fee simple of a non-Indian, 
        which the United States Government was bound to respect. See 
---------------------------------------------------------------------------
        Mitchel v. United States, 9 Pet. (34 U.S.) 711, 733 (1835).

        Department of the Interior, Litigation Report Regarding the 
        Catawba Land Claim at 3 (1977).

    As of 1988, the adoption date of IGRA and the date that the AGA 
considers critical, Congress had not extinguished the Catawba 
reservation; therefore, it was still in place. The boundary of this 
reservation is approximately 22 miles from the proposed site, so within 
the 25-mile limit in the AGA's definition of off-reservation gaming.
    Attachment
                                               May 10, 2019
Chairman John Hoeven,
Vice Chairman Tom Udall,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
  Re: Catawba Indian Excavation Sites in Morganton, NC and 
                 the Work of the Exploring Joara Foundation

Dear Chairman John Hoeven and Vice Chairman Tom Udall:

    My name is David Moore. I have conducted archaeological research in 
the Catawba River valley in North Carolina for more than 30 years. I 
received my MA and PhD in Anthropology from the University of North 
Carolina at Chapel Hill and I am a professor of Anthropology at Warren 
Wilson College in Asheville, North Carolina. I also serve as the Senior 
Archaeologist with the Exploring Joara Foundation in Morganton, North 
Carolina. The Exploring Joara Foundation engages the public in 
archaeology in the Carolinas with the discovery of the Native American 
town of Joara and the Spanish Fort San Juan. In their educational 
activities, the Foundation emphasizes the history of Catawba Indian 
ancestors at Joara and in the upper Catawba River valley.
    Since, 2001, I have been engaged with Dr. Robin Beck from the 
University of Michigan, Dr. Christopher Rodning from Tulane University, 
and Dr. Rachel Briggs from the University of North Carolina at Chapel 
Hill in a major study of the 15th-16th century Native Americans of the 
Catawba River valley. Our research has focused on the Berry site, 
located just north of Morganton in Burke County, North Carolina. We 
have determined that the Berry site is the location of the Native 
American town of Joara visited by the Spanish Captain, Juan Pardo, with 
an army of 125 men in December, 1566. Pardo subsequently built Fort San 
Juan at Joara. This Spanish settlement lasted for 18 months until May, 
1568, and constitutes the earliest European settlement in the interior 
of the United States, predating Roanoke by nearly 20 years and 
Jamestown by 40 years.
    Based on our extensive research throughout the valley, we identify 
the sixteenth-century Native people of Joara as ancestors of today's 
Catawba and Cheraw Indians. Also in the sixteenth century, the Catawba 
valley south of Joara was home to many other Native American 
settlements and a relatively large population. This region suffered a 
major depopulation in the seventeenth century most likely due to the 
various disruptions brought by the Indian slave trade and the changing 
economy and politics of the early Colonial frontier. It is clear that 
one strategy Native peoples of this region employed was to reform their 
villages in another area or take refuge with other groups.
    Many Catawba valley townspeople retreated south from these 
destabilizing forces and were identified in the early eighteenth 
century as towns of the Catawba Nation. In other words, decades of 
archaeological research provide evidence of a long history of Catawba 
Indian occupation in the Catawba River valley region of North Carolina.
    I have attached a selected bibliography of works related to the 
archaeological research described above.
        Sincerely,
                                       David G. Moore, PhD.
    Department of Sociology and Anthropology, Warren Wilson College

    Publications related to the sixteenth-century archaeology of the 
Catawba River valley.
    Beck, Robin A., Jr--2013 Chiefdoms, Collapse, and Coalescence in 
the Early American South. Cambridge University Press, New York.
    Beck, Robin A., Jr., David G. Moore, Christopher B. Rodning, 
Timothy Horsley, and Sarah C. Sherwood--2018 A Road to Zacatecas: Fort 
San Juan and the Defenses of Spanish La Florida. American Antiquity. 
Vol. 83, No. 4 (577-597).
    Beck, Robin A., Lee A. Newsom, Christopher B. Rodning, and David G. 
Moore--2017 Spaces of Entanglement: Labor and Construction Practice at 
Fort San Juan de Joara. Historical Archaeology 51(2):167-193.
    Beck, Robin A.Jr., Christopher B. Rodning, and David G. Moore.--
2016The Limits of Empire: Colonialism and Household Practice at the 
Berry Site, 1566-1568. The University Press of Florida, Gainesville.
    Beck, Robin A., Jr., David G. Moore, and Christopher B. Rodning--
2011 Limiting Resistance: Juan Pardo and the Shrinking of Spanish La 
Florida, 1566-1568. In Enduring Conquests: Rethinking the Archaeology 
of Resistance to Spanish Colonialism in the Americas, edited by Matthew 
Liebmann and Melissa S. Murphy, pp. 19-39. School for Advanced Research 
Press, Sante Fe, NM.
    Beck, Robin A. Jr., Christopher B. Rodning, and David G. Moore--
2010Limiting Resistance: Juan Pardo and the Shrinking of La Florida , 
1566-1568. In Enduring Conquests: Rethinking the Archaeology of 
Resistance to Spanish Colonialism in the Americas, edited by Matthew 
Liebman and Melissa S. Murphy, pp. 19-39. School for Advanced Research 
Press, Santa Fe, New Mexico.
    Beck, Robin A., Jr., David G. Moore and Christopher Rodning--2006 
Identifying Fort San Juan: a Sixteenth-Century Spanish Occupation at 
the Berry Site, North Carolina. Southeastern Archaeology 25(1):65-77.
    Beck, Robin A., Jr. and David G. Moore--2002The Burke Phase: A 
Mississippian Frontier in the North Carolina Foothills. Southeastern 
Archaeology 21(2):192-205.
    Levy, Janet, Alan May and David Moore--1990 From Ysa to Joara: 
Cultural Diversity in the 15th and 16th Century Catawba Valley. In 
Columbian Consequences, Vol. 2, ed. David Hurst Thomas, Smithsonian 
Institution Press.
    Moore, David G.--2006 Catawba Indians; De Soto Expedition; Estatoe 
Path; Pardo Expeditions; in The Encyclopedia of North Carolina, edited 
by William S. Powell, University of North Carolina Press, Chapel Hill
    2002 Catawba Valley Mississippian: Ceramics, Chronology, and 
Catawba Indians. The University of Alabama Press, Tuscaloosa.
    Moore, David G., Christopher B. Rodning, and Robin A. Beck--2017 
Joara, Cuenca, and Fort San Juan: The Construction of Colonial 
Identities at the Berry Site. In Forging Southeastern Identities: 
Social Archaeology, Ethnohistory, and Folklore of the Mississippian to 
Early Historic South, edited by Gregory A. Waselkov and Marvin T. 
Smith, pp. 99-116. University of Alabama Press, Tuscaloosa.
    Moore, David G., Robin A. Beck, Jr., and Christopher B. Rodning.--
2005 Afterward: Pardo, Joara, and Fort San Juan Revisited. In reissue 
of The Juan Pardo Expeditions: Exploration of the Carolinas and 
Tennessee, 1566-1568, by Charles M. Hudson. University of Alabama 
Press, Tuscaloosa.
    2004 Joara and Fort San Juan: Culture Contact at the Edge of the 
World. Antiquity Vol. 78, No. 299: March 2004 Project Gallery (on-line 
Project Gallery: to view go to http://antiquity.ac.uk/ProjGall/moore/).
    Oberg, Michael Leroy and David Moore--2017 Europeans in the 
Indians' Old World. In New Voyages to Carolina: Reinterpreting North 
Carolina History, edited by Larry Tice and Jeffrey Crow, pp. 41-59. The 
University of North Carolina Press, Chapel Hill.
    Rodning, Christopher B., Robin A. Beck, Jr., and David G. Moore--
2013 Conflict, Violence, and Warfare in La Florida. In Native and 
Spanish New Worlds: Sixteenth-Century Entradas in the American 
Southwest and Southeast, edited by Clay Mathers, Jeffrey M. Mitchem, 
and Charles M. Haecker. University of Arizona Press, Tucson.
    Rodning. Christopher B. and David G. Moore--2010 South Appalachian 
Mississippian and Protohistoric Mortuary Practices in Southwestern 
North Carolina. In Papers in Honor of Bennie C. Keel, edited by Edmond 
A. Boudreaux, III, Christopher B. Rodning, and Jane Eastman. 
Southeastern Archaeology 29(1):80-100.
    *The remaining attachments have been retained in the Committee 
files.*

    The Chairman. Thank you, Chief.
    Councilman Suppah.

  STATEMENT OF HON. RON SUPPAH, COUNCIL MEMBER, CONFEDERATED 
                     TRIBES OF WARM SPRINGS

    Mr. Suppah. Good afternoon, Chairman Hoeven and other 
Committee members. I am Ron Suppah, Tribal Council Member for 
the Confederated Tribes of Warm Springs.
    Today, the Committee is making history. This is the first 
hearing that legislation to nullify a fraudulent treaty that 
sought to deprive my Tribe of rights reserved in its original 
treaty with the United States. I am personally honored to be 
here, asking you to correct a historic wrong perpetuated 
against the Warm Springs people.
    In 1855, a treaty was negotiated and signed between my 
ancestors and the Federal Government. Under the original 
treaty, the Warm Springs and Wasco Tribes relinquished 
approximately 10 million acres but reserved the Warm Springs 
Reservation for their exclusive use. In the treaty, the Tribes 
retained their rights to harvest fish, game and other foods off 
the reservation at all places they had gone to since time 
immemorial.
    After 1855, the Tribes maintained their traditional 
practice of traveling regularly to the Columbia River to 
harvest salmon. The continued Indian presence at their usual 
and accustomed fishing sites, however, irritated the non-Indian 
settlers. This prompted then-Superintendent of Indian Affairs 
for Oregon, J.S. Perit Huntington, to keep the Tribes away from 
the settlers. In 1865, Huntington drew up a supplemental treaty 
and convinced a handful of tribal members to sign it. 
Accordingly to its terms, the treaty prohibits the Indians from 
leaving the Warm Springs Reservation without the written 
permission of the Government. The 1865 treaty also relinquished 
all of the off-reservation rights so carefully negotiated by 
the tribes 10 years earlier.
    Yet, the historical records prove that the Indians of the 
Warm Springs Reservation did not comply with the 1865 treaty 
and did not understand its provisions. In fact, Government 
records from the era show that Warm Springs people understood 
that latter treaty as merely providing a pass system for 
Indians, distinguishing them from hostile Indians, for their 
own protection. The next Indian agent for the government wrote 
to D.C. and reported that the 1865 treaty was not properly 
interpreted to the Indians, and that they were led to believe 
that their right to take fish hunt off-reservation was 
protected in this second treaty supplement.
    In 1884, the Warm Springs agent wrote that the supplement 
treaty was ``beyond a doubt a forgery'' and that the Warm 
Springs people were ``willfully and wickedly deceived by the 
government.'' In 1886, another Federal Warm Springs agent 
described the treaty this way: ``If ever a fraud was 
villainously perpetuated on any set of people, red or white 
this was one of the most glaring.''
    In 1887, the Commissioner of Indian Affairs reported to the 
Secretary of the Interior that the Warm Springs people were 
cheated and swindled out of their right to fish by a cunning 
and unprincipled U.S. official. These are the words of 
representatives of American government assessing the fraud 
perpetuated upon the Warm Springs Indians. My Tribe has never 
recognized it, and the Federal Government never sought to 
enforce it. Yet, as I testify here today, the 1865 treaty 
remains on the books.
    I believe that Senator Merkley had outlined a lot of some 
of the other comments that I wished to make. But I think we've 
been witnessing and watching this thing for 154 years. And all 
that time, we have never relinquished our off-reservation 
reserve rights. Today, I ask that the Committee support S. 832, 
because I think it would right a wrong perpetuated by the 
United States Government and it would be good for the Warm 
Springs people to live under the correct treaty.
    Thank you for the time, and I offer that if you guys have 
any questions, I would answer those. Thank you.
    [The prepared statement of Mr. Suppah follows:]

  Prepared Statement of Hon. Ron Suppah, Council Member, Confederated 
                         Tribes of Warm Springs
    Mr. Chairman and members of the Committee, thank you for holding 
today's hearing and inviting me to testify. Today the Committee is 
making history--this is the first hearing on legislation to nullify a 
fraudulent treaty that sought to deprive my tribe of rights it reserved 
in its original treaty with the United States. I want to thank Senators 
Merkley and Wyden, and Congressman Greg Walden for introducing this 
legislation. I also recognize the late Senator Mark Hatfield and his 
staff for their efforts to pass identical legislation in 1996.
    I am personally honored to be here asking you to correct a historic 
wrong perpetrated against the Warm Springs people.
Historical Background
    On June 25, 1855 a treaty was negotiated and signed between my 
tribe's Warm Springs and Wasco ancestors and the federal government, 
who sought to clear the land of Indians for settlement. Under the 
treaty, the Warm Springs and Wasco tribes relinquished approximately 
ten million acres of land, but reserved the Warm Springs Reservation 
for their exclusive use. Our land cession was one-sixth the current 
size of the State of Oregon. In the treaty the tribes retained their 
rights to harvest fish, game and other foods off the reservation in 
their usual and accustomed places.
    The 1855 treaty was ratified by the U.S. Senate on March 8, 1859--
just three weeks after Oregon entered the Union. Since that time the 
1855 treaty has served as the primary agreement between the Warm 
Springs Tribes and the U.S. government.
    After the treaty signing, the tribes maintained their accustomed 
practice of traveling regularly to the Columbia River to harvest 
salmon. The continued presence of Indian people fishing along the 
Columbia at their usual and accustomed fishing sites, however, 
irritated the non-Indian settlers and prompted the then-Superintendent 
of Indian Affairs for Oregon, J.W. Perit Huntington, to pursue efforts 
to keep the Tribes away from the settlers.
    To that end, Superintendent Huntington drew up a supplemental 
treaty and, on November 15, 1865, convinced the tribes of the Warm 
Springs Reservation to sign it. This treaty, called the Treaty with the 
Middle Oregon Tribes of November 15, 1865, was ratified by the U.S. 
Senate on March 2, 1867. According to its terms, the treaty prohibits 
the Indians from leaving the Warm Springs Reservation without the 
written permission of the Government and relinquishes all of the off-
reservation rights so carefully negotiated by the tribes as part of the 
1855 treaty.
    Yet, the historical record demonstrates that the Indians of the 
Warm Springs Reservation neither complied with the 1865 treaty nor 
understood its provisions. In fact, U.S. Department of Justice 
affidavits taken from Warm Springs Indians present at both the 1855 and 
1865 treaty signings show they understood the later treaty simply to 
provide a pass system for Indians leaving the reservation to exercise 
their off-reservation rights. They thought this merely distinguished 
them from hostile Indians that were raiding the area at the time.
    Almost immediately following the signing of the 1865 treaty, the 
Indians from the Warm Springs Reservation continued to travel to the 
Columbia River to fish from their historic fishing sites. Warm Springs 
Agency agent John Smith wrote in his June 26, 1867, report to 
Superintendent Huntington that ``as early as the 16th of May, 1866, the 
Indians began to visit the salmon fisheries in large numbers.'' Reports 
by Agent Smith in subsequent years further document continued fishing 
on a substantial scale, and in a July 1, 1869, letter from Agent Smith 
to Superintendent A.B. Meacham--who replaced Huntington on May 15, 
1869--Smith noted ``the Indians said they did not understand the terms 
of the [1865] treaty'', that ``they claim that it was not properly 
interpreted to them'', and that ``they were led to believe the right of 
taking fish, hunting game, etc., would still be given them because 
salmon was such an essential part of their subsistence.'' That same 
year, in a September 18, 1869 report regarding the Warm Springs 
Reservation to Superintendent Meacham, U.S. Army Captain W.M. Mitchell 
wrote:

         ``I also have to report, for the consideration of the proper 
        authorities, that the Indians unanimously disclaim any 
        knowledge whatever of having sold their right to the fishery at 
        The Dalles of the Columbia, as stated in the amended treaty of 
        1865, and express a desire to have a small delegation of their 
        head men visit their Great White Father in Washington, and to 
        him present their cause of complaint.''

    Official U.S. Government reports in subsequent years continue to 
note the Warm Springs Reservation Indian's strong objection to the 1865 
treaty, their continued and uninterrupted reliance on their fisheries 
on the Columbia River, and the fraudulent nature of the 1865 treaty 
signing. In the annual report, dated August 15, 1884, Warm Springs 
Agent Alonzo Gesner finds:

         ``on record what purports to be a supplementary treaty.which 
        is beyond a doubt a forgery on the part of the Government in so 
        far as it relates to the Indians ever relinquishing their right 
        to the fisheries on the Columbia River; and as a matter of 
        justice to the Indians, as well as to the Government, the 
        matter should be made right and satisfactory to the Indians as 
        soon as possible. . . .All the Indians say emphatically that 
        when the treaty was read to them no mention was made of their 
        giving up the right to fish. All that was said was that they 
        were to agree not to leave the reservation without getting 
        passes. . .The fact is they were willfully and wickedly 
        deceived.''

    In 1886, Warm Springs Agent Jason Wheeler reported to the 
Commissioner of the Indian Affairs in Washington, DC, regarding the 
1865 treaty that ``if ever a fraud was villainously perpetrated on any 
set of people, red or white, this was, in my opinion, certainly one of 
the most glaring.'' In 1887, Commissioner of Indian Affairs J.D.C. 
Atkins, in his annual report to the Secretary of the Interior, cited a 
recent War Department report by Gen. John Gibbons that:

         ``called attention to the oft-repeated, and I may say very 
        generally credited, story of fraud in the treaty of 1865, 
        whereby the Warm Springs Indians were, it is claimed, cheated 
        out of their fishery by the Huntington treaty. . .Salmon, is 
        material and of grave importance to them. It is their principal 
        source of subsistence, and they never intended to part with it, 
        but were cheated and swindled out of it by a cunning and 
        unprincipled U.S. official. I would recommend your early 
        attention to the matter upon the convening of Congress.''

    These are the words of representatives of the American Government 
assessing this kind of a fraud perpetrated upon the Warm Spring Indians 
in the 1870's and 1880's. Yet as I testify here today, the 1865 treaty 
remains on the books. My tribe has never recognized it and the federal 
government has never sought to enforce it.
Executive Branch support for original 1855 treaty rights
    The Federal Government has vigorously pursued federal court 
litigation affirming and enforcing the Tribe's original 1855 off-
reservation treaty rights. In United States v. Oregon, for example, the 
U.S. Department of Justice prevailed in restraining agents of the State 
of Oregon from restricting Warm Spring's off-reservation fishing 
rights.
    In a May 17, 1989 letter to then Oregon Congressman, Bob Smith, the 
Acting Deputy Assistant Secretary of Interior for Indian Affairs wrote 
that ``In the view of the federal court decisions confirming the 
validity of the Warm Springs Tribe's 1855 Treaty rights, the 1865 
agreement must be regarded as an historic anomaly which has no 
practical or legal effects on the nature and extent of the Tribe's 1855 
treaty.''
    In addition, a November 25, 1997, letter from the U.S. Forest 
Service Regional Director to the Warm Springs Tribal Council, affirmed 
that the agency it would deal with the Tribe only on the basis of the 
1855 Treaty's off-reservation rights and not the 1865 treaty. The 
Forest Service letter enclosed an analysis it had performed, stating in 
part: ``As a matter of policy, the Forest Service recognizes only the 
Treaty With The Tribes Of Middle Oregon, 1855.''
    No Federal Government agency has ever asserted that the 1865 treaty 
was enforceable or had any legal effect.
State of Oregon rejection of 1865 treaty
    The State of Oregon, like the Federal Government, has never 
attempted to enforce the 1865 agreement despite the State's adverse 
position to the Tribe in off-reservation treaty fishing rights 
litigation. See, United States v. Oregon, supra. . In 2019, Oregon's 
Governor issued a policy statement disavowing the 1865 agreement and 
affirming the 1855 Treaty's off-reservation rights, stating ``it is the 
policy of the Office of the Governor of the State of Oregon that the 
fraudulent Huntington Treaty of 1865 is to be regarded as a nullity 
with no effect whatsoever.''
    Oregon's Attorney General has also issued a formal legal opinion 
\1\ concluding that the 1865 treaty is unenforceable as a matter of 
law.
---------------------------------------------------------------------------
    \1\ February 20, 2019 Oregon Attorney General Opinion No. 8295.
---------------------------------------------------------------------------
Effect of Nullification of the 1865 Treaty
    Because the 1865 treaty has never been enforced, its nullification 
would have no impact on the State of Oregon's rights or that of its 
citizens. Instead, the legislation before you would at long last 
correct a historic travesty. It would allow the Warm Springs Tribes to 
continue to exercise their 1855 off-reservation fishing, hunting, 
gathering and grazing rights without future fear of litigation or 
extortion.
    As the late Senator Mark Hatfield said on the Senate floor in 1996, 
this legislation will ``help the honor of the United States and dignity 
of a long-wronged people.''
    Thank you for allowing me to testify before the Committee today and 
for your support of this historic legislation.

    The Chairman. Thank you, Councilman.
    We will turn to President Fire Thunder, of the Oglala 
Lakota Nation Education Coalition.

  STATEMENT OF CECELIA FIRE THUNDER, PRESIDENT, OGLALA LAKOTA 
                   NATION EDUCATION COALITION

    Ms. Fire Thunder. Good afternoon, Chairman Hoeven, Vice 
Chairman Udall and members of the Committee. My name is Cecelia 
Fire Thunder. I am a member of the Oglala Lakota Nation and 
President of the Oglala Lakota Nation Education Coalition, 
which represents six tribally controlled grant schools on the 
Pine Ridge Reservation in South Dakota.
    I am here to speak on S. 279, the Tribal School Federal 
Insurance Parity Act. I also serve as a board member for Little 
Wound School in Kyle, South Dakota.
    The Federal Employee Health Benefits program is an employer 
health insurance program administered by the Office of 
Personnel Management. Federal employees have had a high level 
of choice in finding a plan that fits their needs and budgets. 
Premiums vary by plan, with up to 75 percent of the cost 
covered by the Federal Government, and the remainder by the 
employee.
    We fully support S. 279 for immediate benefits and savings 
for our schools. S. 279 would amend the Indian Health Care 
Improvement Act to authorize tribal entities operating under 
the Tribally Controlled Schools Act of 1988 to access Federal 
employee health benefits.
    This simple and clean legislative fix would directly 
benefit our schools by allowing them to access lower health 
insurance cost options as significant overall savings, savings 
already provided by all other BIE system schools.
    Six of the 13 schools located on the Pine Ridge Indian 
Reservation are tribally controlled grant schools. Since their 
founding in the 1970s, our tribal grant schools have provided 
health insurance to all of our employees. Many of our schools, 
however, struggle to cover the cost of health care insurance 
premiums and deductibles. We also have trouble recruiting 
highly qualified staff due to the cost of their benefits, which 
is a really important component as a school to bring in more 
highly qualified teachers.
    Schools make up for the funding shortfall through the 
diversion of Indian School Equalization Program, known as ISEP. 
We use ISEP to cover health insurance and other program costs. 
We reduce the amount of money available for teachers in 
classrooms. This in turn directly affects education services 
our children receive.
    In 2012, our six schools applied to participate in FEHB. 
Title IV of the Indian Health Care Improvement Act authorizes 
tribal entities operating under ISDEAA to access FEHB. We 
understood that we were able to join based on this description 
of the law. However, the Interior Solicitor recommended to 
Office of Personnel Management that we were ineligible, because 
we have the authority to administer ISDEAA contracts or 
compacts. However, we operate under the Tribally Controlled 
Schools Act of 1988.
    I want to remind the Committee and people in the audience 
that even though we have two BIA schools, the BIA, administered 
by the government, has access to all these programs, and we 
don't, because we are under 694-437. For example, Little Wound 
School, and in our presentation, we gave you graphs of costs, 
premiums and deductibles. So Little Wound School today pays 
$954.58 for single coverage with a $5,000 deductible. Doing the 
research, under FEHB, Little Wound School will pay $464 and 
$500 deductible. In our analysis of savings, Little Wound 
School would save over $1 million just in reduced costs under 
FEHB.
    In conclusion, I would like to also point out that it is a 
really good local economy benefit to have health insurance. So 
in the last 48 seconds, I just want to share with you, I am 
deaf. I have cochlear implants. In 2005, I underwent bilateral 
surgery at the University of Iowa. Only because I have private 
health insurance was I able to get into a top-notch clinic in 
the United States to get a top-notch surgeon to drill into my 
head and put implants in my cochlea so I could hear. That is 
the benefit of private health insurance.
    Our employees are also seeing how important it is, even 
though we live on an Indian reservation and we have Indian 
Health Service, private health insurance can also benefit 
families that do not have the services, that our IHS does not 
have the services that it can provide.
    We appreciate your support in this bill. Thank you so much.
    [The prepared statement of Ms. Fire Thunder follows:]

 Prepared Statement of Cecelia Fire Thunder, President, Oglala Lakota 
                       Nation Education Coalition
    Introduction. Chairman Hoeven, Vice Chairman Udall and honorable 
Members of the Senate Committee on Indian Affairs. My name is Cecelia 
Firethunder, a member of the Oglala Lakota Nation and President of the 
Oglala Lakota Nation Education Coalition (OLNEC). Thank you for this 
opportunity to provide testimony on behalf of OLNEC, which represents 
the six tribally controlled grant schools of the Oglala Sioux Tribe 
located on the Pine Ridge Indian Reservation in South Dakota. The 
Oglala Sioux Tribe and United States entered in the 1868 Treaty of Fort 
Laramie that established the Federal Government's responsibilities to 
provide for the education of our tribal youth. Our six tribally 
controlled grant schools operate pursuant to the Tribally Controlled 
Schools Act of 1988, Pub. L. 100-297 (TCSA), and the Indian Self 
Determination and Education Assistance Act of 1975 (ISDEAA), as 
amended, and are funded by the Bureau of Indian Education (BIE). Our 
Tribal Council has authorized us to be responsible for the 
administration and operation of tribal school functions. Members of 
individual school boards are elected from the communities they serve.
    Background on the FEHB Program. Federal Employee Health Benefits 
(FEHB) is an employersponsored group health insurance program 
administered by the Office of Personnel Management. Due to the 
competitive nature of the FEHB program structure, employees have a high 
level of choice in finding the plan that is appropriate for their 
needs. Available features under different plans include health savings 
accounts, family coverage, and catastrophic risk protection, among 
others. Premiums vary depending on the plan type, with up to 75 percent 
of the costs covered by the Federal Government and the remainder by the 
employee.
    OLNEC Fully Supports S. 279 for Immediate Benefits and Cost-Savings 
for Our Schools. S. 279 would amend one line of the Indian Health Care 
Improvement Act to specifically authorize Indian tribes and tribal 
organizations operating under the Tribally Controlled Schools Act of 
1988 to access FEHB. This simple and clean legislative fix would 
directly benefit our schools by allowing them to access lower cost 
insurance options for their employees at significant overall savings--a 
benefit that is already provided at all other BIE system schools. S. 
279's simple change to the law would provide tribally controlled grant 
schools with an equal opportunity to access this critical program.
    Demonstrated Need for FEHB Access at Tribally Controlled Grant 
Schools. Six of the thirteen schools located on the Pine Ridge Indian 
Reservation are tribally controlled grant schools: American Horse 
School, Wounded Knee District School, Loneman Day School, Porcupine Day 
School, Little Wound School, and Crazy Horse School. All of our schools 
strive to provide high quality educational and support services to our 
students. That effort, however, is severely complicated by years of 
underfunding and under-resourcing within the BIE system.
    All of our schools have provided health insurance for our employees 
since the schools were established in the 1970s. Many of our schools, 
however, struggle to cover the costs of high health insurance premiums 
and deductibles. We also have trouble recruiting highly qualified staff 
due to the costs of their benefits. Some schools are not able to 
shoulder the financial burden. Others try to find ways to make up for 
the shortfall, including through the diversion of Indian School 
Equalization Program (ISEP) dollars. ISEP formula funds support 
instructional services at BIE-funded elementary and secondary schools, 
including tribally controlled grant schools. When we use ISEP funds to 
cover the costs of health insurance and other programs, we reduce the 
amount of available funds for teachers and curriculum needs in the 
classroom. This, in turn, directly and adversely affects the 
consistency and quality of the educational services our students 
receive.
    In 2012, our six tribally controlled grant schools applied to 
participate in the FEHB program. Pursuant to Title IV of the Indian 
Health Care Improvement Act, Indian tribes and tribal organizations 
operating under the ISDEAA are entitled to purchase health insurance 
coverage for their employees through the FEHB program. 25 U.S.C.  
1647b. We understood that we were able to join based on this provision. 
The Interior Solicitor and Office of Personnel Management, however, 
determined that we were ineligible because though we have the authority 
to administer ISDEAA contracts or compacts, we operate under the 
Tribally Controlled Schools Act of 1988. We responded to the decision 
with countervailing arguments that the TCSA specifically incorporated 
several ISDEAA provisions that had the effect of enabling tribally 
controlled grant schools to access FEHB. See 25 U.S.C.  2508(a). 
Nonetheless, our reapplication was once again denied based on 
Interior's and OPM's aforementioned position. Legislative action is 
urgently needed to remedy this situation.
    BIE-operated schools do not shoulder the same financial burdens as 
tribally operated grant schools. Rather, BIE-operated schools are able 
to fully participate in the FEHB program, with expanded benefits 
packages for their employees and lower overall costs and deductibles. 
BIE-operated and tribally controlled grant schools share the mission of 
providing quality education opportunities for Native students to assist 
them on the path of life-long learning and personal achievement. Both 
serve the same Native student populations, recruit qualified academic 
and administrative staff, and advance the interests of tribal 
sovereignty and self-determination in education--all pursuant to the 
authorization and funding of the Federal Government. Yet, only BIE-
operated schools are able to access the FEHB program with its 
multifaceted benefits for employees and the schools alike. The result 
is a shocking divergence in the amount of money that these two school 
systems must invest to provide health insurance coverage for their 
employees, as the following example illustrates:

         Example: For a single employee, Little Wound School, one of 
        our tribally controlled grant schools, is able to offer a 
        healthcare package through Blue Cross Blue Shield of South 
        Dakota for a monthly cost to the school of $954 with a $5,000 
        deductible (Little Wound currently pays 100 percent of the 
        total costs). For an employee at a BIE-operated school such as 
        Pine Ridge School, the monthly cost to the school through the 
        FEHB program would be $348 with a $500 deductible (the total 
        monthly cost is $464 but the school covers 75 percent of that 
        expense at $348 per month). Access to FEHB would result in 
        annual savings of over $1,000,000 for Little Wound School--
        money that could be used for educational services for students.

    As the charts attached demonstrate, all six of our tribally 
controlled grant schools are currently burdened with high premium and 
deductible obligations. The substantial savings highlighted in the 
example above would be replicated to varying degrees at all of our 
schools if they had access to the FEHB program. These savings represent 
funding for additional teachers, instruction materials, and classroom 
aids to enhance our students' learning environment and experiences. 
Critically, they also translate into additional money being available 
per student without the need to appropriate new federal funds. Access 
to FEHB would, thus, enable tribally controlled grant schools to 
alleviate pressure on ISEP funding and diversify their insurance 
options without tying up federal funds--a win-win situation. S. 279 
provides this crucial access to FEHB.
    Community Support for S. 279 FEHB Expansion. S. 279 would have 
benefits not just for our OLNEC members, but for the over 100 tribally 
controlled grant schools that operate across the country. We have 
received copies of letters and resolutions of support from numerous 
intertribal organizations and individual entities, including the 
National Congress of American Indians; National Indian Health Board; 
Great Plains Tribal Chairmen's Health Board; United Tribes of North 
Dakota; Saint Stephens Indian School Education Association, Inc.; and 
the Standing Rock Sioux Tribe. Copies of these letters are attached for 
the record.
    Conclusion. The Oglala Lakota Nation Education Coalition greatly 
appreciates this opportunity to provide testimony in support of S. 279. 
This simple, no cost legislative fix would effectuate manifold employee 
and budgetary benefits for tribally controlled grant schools 
nationwide. We ask that you swiftly consider and enact this important 
bill. Wopila tanka; thank you.
    Attachments
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                      National Congress of American Indians
                                                     April 29, 2019
Hon. John Hoeven,
Chairman,
Hon. Tom Udall,
Vice-Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Re: Support for S. 279, the Tribal School Federal Insurance 
                                         Parity Act of 2019

Dear Chairman Hoeven and Vice-Chairman Udall:

    I write on behalf of the National Congress of American Indians 
(NCAI), the oldest and largest organization serving the interests of 
American Indian and Alaska Native tribal nations and citizens, to 
express NCAI's support for the immediate consideration and passage of 
S. 279, the Tribal School Federal Insurance Parity Act.
    Access to healthcare is a concern for all Americans--especially 
within tribal communities. In 2010, Congress intended to improve 
healthcare access by authorizing tribal nations utilizing Indian Self-
Determination and Education Assistance Act (ISDEAA) programs to 
participate in the Federal Employee Health Benefit (FEHB) program. 
Unfortunately, after consideration by the Department of the Interior 
and Office Personnel Management (OPM), it was determined that Tribal 
Grant School employees (25 U.S.C. Ch. 27) are ineligible for FEHB, even 
though Tribal Grant Schools operate under the ISDEAA model.
    Tribal Grant School employees should have access to FEHB. We thank 
Senator John Thune for introducing S. 279. This legislation will ensure 
Tribal Grant School employees have access to this vital program, 
thereby improving prospects for recruiting and retaining excellent 
teachers at tribal schools and reducing the healthcare costs of tribal 
schools so that school resources can be appropriately focused on 
education.
    Tribal nations have greatly appreciated the work of Congress to 
ensure that the benefits of the FEHB program reach Indian Country. NCAI 
urges the prompt passage of this legislation that is vital for Tribal 
Grant School employees. We look forward to working with you.
        Respectfully,
                                            Jefferson Keel,
                                                    President, NCAI
                                 ______
                                 
                               National Indian Health Board
                                                     April 12, 2019
Hon. John Thune,
United States Senate,
Washington, DC.
Re: Support for the Tribal School Federal Insurance Parity 
                                                        Act

Dear Senator Thune,

    I write today to express my support for S. 279, the Tribal School 
Federal Insurance Parity Act. As you know, American Indians and Alaska 
Natives (AI/ANs) face significant challenges in healthcare access and 
coverage, and this legislation will make positive improvements towards 
reducing the costs of health coverage for Tribal Schools while freeing 
up funds for recruitment and retention of education-specific needs.
    In recent years, the cost of health care has skyrocketed, straining 
the limited budgets of Tribal Schools who have been forced to spend a 
larger percentage of their education dollars on health insurance 
coverage for employees. In fact, Tribal Grant Schools have reported 
experiencing a 50 percent increase in health insurance premium rates 
over the last few years. Since the 1988 passage of the Tribally-
Controlled Schools Act (P.L. 100-297), Tribes have been able to expand 
their self-governance authorities and control over education and 
schooling programs. There are currently 128 Tribal Grant Schools 
nationwide, and 3 Tribal schools operating under self-determination 
contracts as established under P.L. 93-638. However, these schools have 
been restricted from receiving Federal Employee Health Benefits (FEHB) 
and Federal Employees Group Life Insurance (FEGLI) eligibility. As a 
result, they are forced to utilize portions of their education budgets 
to cover these expenses.
    By permitting Tribal Grant Schools to access FEHB and FEGLI 
benefits, it frees up more of Tribes' education funding to be spent on 
much-needed education supplies, recruitment of new teachers, and other 
resource needs. It also honors the federal trust responsibility for 
health services and furthers the government-to-government relationship 
between Tribal Nations and the federal government.
    Thank you for taking on this important issue by re-introducing the 
Tribal School Federal Insurance Parity Act. This effort is an important 
first step towards reducing Tribal health expenditures and improving 
educational outcomes in Indian Country. Please know that NIHB is here 
to offer any support or assistance you may need in moving this 
legislation through Congress.
        Yours in Health,
                            Victoria Kitcheyan, Chairperson
                                 ______
                                 
RESOLUTION NO. 19-102 OF THE OGLALA SIOUX TRIBAL COUNCIL OF THE OGLALA 
SIOUX TRIBE SUPPORTING THE PASSAGE OF S. 279, THE TRIBAL SCHOOL FEDERAL 
SCHOOL INSURANCE PARITY ACT, AND AUTHORIZES THE SUBMISSION OF A LETTER 
                      OF SUPPORT ON BEHALF OF THE 
                          OGLALA SIOUX TRIBE.
    WHEREAS, the Oglala Sioux Tribe adopted its Constitution and ByLaws 
by referendum vote on December 14, 1935, in accordance with Section 16 
of the Indian Reorganization Act of 1934 (25 U.S.C.   5123), and under 
Article III of the Constitution, the Oglala Sioux Tribal Council is the 
governing body of the Oglala Sioux Tribe, and
    WHEREAS, pursuant to the Constitution and By-laws of the Oglala 
Sioux Tribe, the Oglala Sioux Tribal Council exercises legislative 
powers to enact and promulgate resolutions and ordinances, and
    WHEREAS, Article IV, Sections 1(f), 1(k), 1(m), 1(w) empower the 
Tribal Council to manage the economic affairs of the Tribe, protect and 
preserve the property of the Tribe, adopt laws governing the conduct of 
persons on the Pine Ridge Indian Reservation, and adopt laws protecting 
and promoting the health and general welfare of the Oglala Sioux Tribe 
and its membership, and
    WHEREAS, Article IV, Section 1(a) authorizes the Tribal Council to 
negotiate with Federal, State, and local governments, on behalf of the 
Tribe, and to advise and consult on behalf of the Tribe, and WHEREAS, 
Senator Thune (R-SD) introduced S. 279, the Tribal School Federal 
Insurance Parity Act, on January 30, 2019, and co-sponsored by Senator 
Rounds (R-SD), and
    WHEREAS, S. 279 is a tribal initiative that would amend Section 409 
of the Indian Health Care Improvement Act to allow tribal grant 
schools, including the six tribally controlled grant schools on the 
Pine Ridge Indian Reservation, to participate in the Federal Employee 
Health Benefits program, and
    WHEREAS, Federal Employee Health Benefits and Federal Employees 
Group Life Insurance provide comprehensive health care coverage and 
group term life insurance, and access to these programs would result in 
our schools paying substantially lower rates and bring savings that 
would greatly benefit our schools, and
    WHEREAS, the Oglala Sioux Tribal Council has determined that is in 
the best interest of the Oglala Sioux Tribe to support the passage of 
S. 279 and the written testimony submitted by Ms. Cecelia Fire Thunder 
from OLNEC; now
    THEREFORE BE IT RESOLVED, that the Oglala Sioux Tribal Council 
hereby supports the passage of S. 279, the Tribal School Federal 
Insurance Parity Act, and
    BE IT FURTHER RESOLVED, that the Oglala Sioux Tribal Council hereby 
authorizes and supports the submission of the attached letter in 
support of S. 279 as well the written testimony submitted by Ms. 
Cecelia Fire Thunder from OLNEC and requests that the Oglala Sioux 
Tribe's letter of support to be included in the hearing record for S. 
279, and
    BE IT FURTHER RESOLVED, that the President or in his absence, the 
Vice-President, is authorized and directed to sign this letter of 
support.
    C-E-R-T-I-F-I-C-A-T-I-O-N
    I, as the undersigned Secretary of the Oglala Sioux Tribal Council, 
of the Oglala Sioux Tribe hereby certify that this Resolution was 
adopted by a vote of: 18 For; 0 Against; 0 Abstain; and 0 Not Voting; 
during a REGULAR SESSION held on the 1st day of MAY, 2019
        Julian Bear Runner, President, Oglala Sioux Tribe

                                    Office of the President
                                                     April 30, 2019
Hon. John Hoeven,
Chairman,
Hon. Tom Udall,
Vice-Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Re: Support for S. 279, the Tribal School Federal Insurance 
                                                 Parity Act

Dear Chairman Hoeven and Vice Chairman Udall:

    I am writing on behalf of the Oglala Sioux Tribe to thank you for 
holding the May 1, 2019 hearing on S. 279, the Tribal School Federal 
Insurance Parity Act. We strongly support this important bill and have 
actively promoted its concept for years. The bill is a tribal 
initiative: one borne from our desire for our tribally controlled grant 
schools, which operate under the Tribally Controlled Schools Act of 
1988, Pub. L. 100-297 (TCSA), and the Indian Self Determination and 
Education Assistance Act of 1975 (ISDEAA), to save money on healthcare 
benefits for their employees. Our Tribe has worked with and supported 
the Oglala Lakota Nation Education Coalition (OLNEC) in the long effort 
to realize what this bill will accomplish.
    S. 279 would allow our six tribally controlled grant schools on our 
Pine Ridge Indian Reservation to access Federal Employee Health 
Benefits (FEHB) and Federal Employees Group Life Insurance (FEGLI). 
FEHB is an employer-sponsored group health insurance program 
administered by the Office of Personnel Management that provides 
comprehensive health care coverage for federal employees, annuitants, 
and their families and FEGLI provides group term life insurance.
    Access to these federal programs would result in our schools paying 
substantially lower rates for employee healthcare in the same manner 
that Bureau of Indian Education schools currently do. This will bring 
about significant savings for our tribally controlled grant schools, 
which currently struggle to make ends meet, to the point of being 
forced to use Indian School Equalization Program (ISEP) dollars to 
cover myriad funding shortfalls. Our tribally controlled grant schools 
will be able to use the savings that will be achieved from S.279 for 
instructional services, teacher salaries and classroom amenities, all 
toward improving the quality of our students' educations and enhancing 
their school experiences. Our tribally controlled grant schools would 
no longer be encumbered with the heavy financial burden of high health 
care premiums for their employees.
    We support the written testimony provided by Ms. Cecelia Fire 
Thunder from OLNEC, and we refer you to that testimony for our tribally 
controlled grant schools' specific health care costs. We note that such 
testimony sets out that access to FEHB would save our Little Wound 
School over $1 million. Please consider the good those dollars could do 
for our tribal members' education.
    Thank you again for holding this important hearing. I ask that this 
letter be included in the hearing record.
    We also express heartfelt thanks to Senators Thune and Rounds for 
introducing S.279. We also thank Vice-Chairman Udall for cosponsoring 
the bill. We call upon this Committee to move the bill forward and work 
toward its enactment. It is a good bill: one that aligns with our 1868 
Treaty of Fort Laramie that established the United States' obligations 
to provide for the education of our tribal youth.
        Sincerely,
          Julian Bear Runner, President, Oglala Sioux Tribe

    The Chairman. That is impressive. Your hearing now seems to 
be quite good. Remarkable.
    We will start with rounds of questioning. Secretary 
Tahsuda, according to the resolution passed in our State, we 
have nine schools in my home State that can't participate in 
the Federal Employee Health Benefits program. I want to confirm 
that S. 279 would bring parity across all BIE schools, so that 
every school employee would be eligible to receive Federal 
health insurance.
    Mr. Tahsuda. Thank you, Chairman. Yes.
    The Chairman. Okay. S. 790 would authorize the Department 
of Interior to take land into trust for a tribe in another 
State for the purpose of gaming. Does the Department of 
Interior support S. 790?
    Mr. Tahsuda. Thank you, Chairman. I appreciate the 
question. In general, I would say that the Department supports 
the equal application of laws to federally-recognized tribes, 
such as the Catawba Indian Nation. It is clear that the 
benefits Congress intended for the Tribe through the settlement 
act have not been realized. This has resulted in disparate 
treatment for this Tribe, when compared to other federally-
recognized tribes.
    We have offered some language suggestions, and if those are 
made, as we suggested, we believe that Congress will not only 
provide parity to the Tribe, so that it can finally realize 
some of the promises made through the settlement act, but that 
Congress will provide the Department with good clarity so that 
we can meet our statutory and trust responsibilities for the 
Tribe.
    The Chairman. Does the Department consider S. 790 to be 
off-reservation gaming?
    Mr. Tahsuda. Thank you, Chairman. If you are asking whether 
we would process the land acquisition specified in S. 790, as 
drafted, as an off-reservation acquisition under our 
regulations, the answer would be yes.
    The Chairman. Does the Department consider this to be a 
mandatory or discretionary trust land acquisition?
    Mr. Tahsuda. Again, Chairman, as drafted, the Department 
would process the land acquisition as a discretionary 
acquisition. Again, in my testimony we made several technical 
suggestions to better effectuate the intent of the bill. I 
would note, as an additional suggestion, that a mandatory 
acquisition would provide a more direct avenue for the 
Department to take the land into trust for the Tribe.
    Congressional intent expressed through legislation provides 
us the record needed to take the land into trust, including 
obviating the need to distinguish between on-reservation and 
off-reservation. Without clear language provided by mandatory 
acquisition language, the Department must develop an expensive 
administrative record that can be time-consuming and expensive 
not just for us, but for the tribe, and still leave the tribe, 
in our decision, open to technical challenges and potential 
litigation.
    The Chairman. Service areas are used for determining 
housing, health care and law enforcement. Does the Department 
of Interior believe that service areas should also be used to 
determine whether land should be taken into trust for the 
purpose of gaming?
    Mr. Tahsuda. Thank you, Chairman. Again, a good question. 
At the risk of trying to define congressional intent, I would 
say that in the Department, we often view service areas as an 
indication of congressional recognition of a specific tribe's 
connection to a particular geographic area. However, unless the 
statute specifies otherwise, we would still consider the 
application for fee to trust in a service area to be 
discretionary, off-reservation acquisition under Part 151 of 
our regulations.
    The Chairman. Chief Harris, in your testimony you stated 
land taken into trust in North Carolina through this bill 
complies with the Catawba 1993 settlement. Why doesn't the 
Tribe pursue land into trust for the purpose of gaming on the 
Catawba Reservation in the State of South Carolina?
    Mr. Harris. Due to the 1993 settlement agreement, and the 
restrictions that were imposed on us by the State of South 
Carolina, we have tried to move forward in South Carolina and 
have been turned down twice by the Supreme Court of South 
Carolina. So we turned our attentions to North Carolina, as --
    The Chairman. I am sorry, say the last part again. I 
apologize.
    Mr. Harris. Where did you actually lose me?
    The Chairman. Why not in South Carolina?
    Mr. Harris. Okay, why not in South Carolina? We have been 
restricted by the settlement agreement itself. When we first 
signed it in 1993, there was gaming within the State of South 
Carolina. We were entitled to have that gaming.
    When South Carolina withdrew and stopped gaming, we weren't 
allowed to have gaming, but they moved forward with riverboat 
gaming, which goes out three miles into Federal waters and 
games, but it's taxed by the South Carolina Department of 
Revenue. When we took that issue back to the State Supreme 
Court, we ended up in the South Carolina Supreme Court. The 
reason they ruled against us was that is water, not land. 
Therefore, you cannot game on your reservation.
    The Chairman. The Eastern Band of Cherokee is another 
federally-recognized tribe located in North Carolina.
    Mr. Harris. Correct.
    The Chairman. They conduct gaming. What outreach have you 
made to address their concerns of having another gaming 
operation in North Carolina?
    Mr. Harris. We have spoken to three of the tribal leaders 
of the Eastern Band of Cherokee, trying to get them to see if 
we can enter into a partnership of some kind allowing us to 
game within our service area. Currently, they are restricted by 
their exclusivity zone within the State of North Carolina. So 
they cannot game in Cleveland County. They are locked out of 
that by their agreement.
    The Chairman. They are locked out of what?
    Mr. Harris. They are locked out of Cleveland County.
    The Chairman. Why?
    Mr. Harris. Because of the exclusivity zone they have with 
the State of North Carolina.
    The Chairman. Okay.
    Mr. Harris. Everything they have is in, their gaming is 
west of I-26. This location is east of I-26.
    The Chairman. You have had a dialogue with them?
    Mr. Harris. Yes, I have spoken with all three of their 
leaders, over a seven-year period.
    The Chairman. And where are they in terms of your 
application in this legislation?
    Mr. Harris. They are resistant to our application. 
Actually, I think they have been to many of your offices, and 
they oppose 790.
    The Chairman. I may ask you more about this, but right now, 
Vice Chair, do you want to go next?
    Senator Udall. I will yield to Senator Cortez Masto.
    The Chairman. Okay. Senator Cortez Masto.

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you, I appreciate that. Thank 
you, Mr. Chair and Ranking Member.
    Let me follow up on the conversation on 790. Just for the 
record, I do support Senate Bills 279 and 832. Thank you for 
being here.
    I do have questions about S. 790. Let me just start with 
Mr. Tahsuda. I understand in your recent analysis of 790 you 
mention your concerns with the bill, but you do not make 
mention of the provision in the bill that exempts this project 
from Section 20 of the Indian Gaming Regulatory Act. Does the 
Department have any concerns that the act itself and the 
consultation process with the local stakeholders is taken out? 
Do you have concerns about that waiver?
    Mr. Tahsuda. Thank you, Senator Cortez Masto. The Section 
20 provision of IGRA historically reflects Congress' intent to 
restrict the discretionary authority of the Secretary to take 
land into trust for gaming purposes outside of existing 
reservations in 1998 or land that the tribe had in 1998, and to 
ensure that as an exception to that general restriction that 
there would be involvement by the non-tribal officials around 
them, government officials around them.
    Senator Cortez Masto. Including the governor?
    Mr. Tahsuda. Yes, including the governor. Very importantly. 
So in a bill like this in which Congress is taking action, 
waiving Section 20 would be appropriate, I think, because it is 
requiring the action of the two Senators in North Carolina who 
have signed onto the bill indicating that Congress' original 
concern that the Administration would act without having other 
political involvement, that is not the case in this situation.
    Senator Cortez Masto. If Section 20 were, if we did not 
waive Section 20, it stayed in, would the Catawba Tribe be able 
to move forward with what they are trying to do today?
    Mr. Tahsuda. So if the bill as drafted----
    Senator Cortez Masto. If Section 20 were there, would they 
still comply under your consultation process that you would 
have to undergo for Section 20?
    Mr. Tahsuda. I believe we would then have to engage in the 
discussion with the governor. We would go through our process, 
as we did. So it's a two-part determination.
    Senator Cortez Masto. And that has not happened at all. In 
other words, there's a consultation process for you to engage 
in under Section 20.
    Mr. Tahsuda. Correct.
    Senator Cortez Masto. Have you done that with respect to 
the Catawba Tribe?
    Mr. Tahsuda. Consulting with the Catawba Tribe?
    Senator Cortez Masto. Have you engaged in the consultation 
process under Section 20 that you are required to engage in for 
purposes of what the Catawba Tribe is trying to do?
    Mr. Tahsuda. We have not, Senator.
    Senator Cortez Masto. Because of it being waived, is that 
right?
    Mr. Tahsuda. I am sorry, no, let me distinguish that. The 
Tribe has provided an application for that property through our 
regular administrative process. But that is in the early 
stages. Our administrative process is quite lengthy, as most of 
you know, it takes us a long time to act on these issues.
    Senator Cortez Masto. So the consultation process that 
would be engaged in under Section 20 that you would be 
responsible for has not occurred?
    Mr. Tahsuda. Exactly. We are not at that stage.
    Senator Cortez Masto. So you do not know, under that 
process, whether they would comply or not comply with the 
exceptions? In other words, what they are trying to do is put 
casino gaming in North Carolina.
    Mr. Tahsuda. Yes.
    Senator Cortez Masto. And you have to engage in Section 20 
to determine whether they are okay to do that off-reservation 
gaming and you have to talk with the stakeholders, you have to 
talk with the governor, you have to do a consultation to see if 
they comply with the provisions of Section 20 or the exceptions 
to be able to do that, correct?
    Mr. Tahsuda. Yes, if I understand you correctly, Senator, I 
would say yes. As drafted, it seems that the intent would be 
for it to be a discretionary --
    Senator Cortez Masto. I guess my point is this. Let me just 
refer this. Why are we waiving Section 20? Because this can't 
be done without waiver of it? In other words, why don't we keep 
Section 20 in and let you go through your process?
    Mr. Tahsuda. In my opinion, it would just add an additional 
administrative hurdle. So by the action ----
    Senator Cortez Masto. Every other tribe has to go through 
that hurdle. So why would we waive that for them? That is what 
I am trying to understand. What is the distinction here? Why 
don't we allow them to go through that process like everyone 
else? Because we're setting a bad precedent. How many other 
tribes have we waived Section 20 for?
    Mr. Tahsuda. Let me take a step back and maybe this will be 
a better explanation. In the general course of considering an 
off-reservation Section 20 two-part determination, that means 
that the land is either not on the current reservation or it is 
post-1988 land. The tribe then is not, is asking for land 
outside of its sort of jurisdiction.
    Senator Cortez Masto. Right.
    Mr. Tahsuda. So we would go through an off-reservation 
acquisition process, not related to the gaming, just in 
general. Our fee-to-trust off-reservation acquisition process 
requires an extensive discussion with the local community. We 
consider effects on property tax rolls, jurisdictional 
conflicts. Those are all things that we consider anyway. So 
that would be part of the off-reservation acquisition process.
    Then in addition to that, once that is completed, we would 
go through a gaming analysis to determine whether the land 
would be appropriate for gaming and that would be the two-part 
determination, that would be the Secretary's part. We would 
make the determination if it is appropriate for gaming. Then we 
would ask the State, usually through the governor, to concur in 
that. That is the second part of the two-part determination.
    Senator Cortez Masto. So why don't we just go through that 
process?
    Mr. Tahsuda. In this case, Congress has already, again, at 
the risk of divining Congress' intent, it would seem that 
Congress in 1993 determined that the Tribe had a strong 
historical connection to the area that is called the service 
area. So in the normal context, the Tribe is going outside of 
somewhere that they had a connection --
    Senator Cortez Masto. I am running out of time. Thank you. 
You don't need to explain Congress' intent. I am just trying to 
understand why the Department would support this if we haven't 
even gone through the process yet, and is it a bad precedent 
that we are setting here, and are we making something, carving 
out something unique for a tribe that we wouldn't do any other 
way. So that is my concern.
    Thank you for the indulgence.
    Senator Udall. [Presiding] If you have additional 
questions, and you wanted to finish, that is all right. I know 
you are getting close on your vote.
    Senator Cortez Masto. I am, thank you.
    So I do, actually. Let me just follow up then, and maybe 
Chief Harris of the Catawba Tribe, have you had conversations 
with any of the State leaders in North Carolina, or the 
governor?
    Mr. Harris. Yes, of course. We have letters of support from 
the area we are talking to.
    Senator Cortez Masto. Do you have a letter of support from 
the governor of North Carolina?
    Mr. Harris. Not the governor of North Carolina, no.
    Senator Cortez Masto. Okay, and the governmental is 
instrumental to, at least under Section 20 of the provision, to 
get that support, is that correct, Mr. Tahsuda?
    Mr. Tahsuda. If Section 20 were not waived, yes. Again, 
every State has slightly different legal requirements as to who 
gets to determine on behalf of the State, but usually it is the 
governor, yes.
    Senator Cortez Masto. Well, I can tell you what I am 
looking at in the Indian Gaming Regulatory Act, it is very 
specific under Section 20 that it has to be the governor of the 
State. And that is the rule that you would have to follow, 
correct?
    Mr. Tahsuda. That is the language of the act. However, each 
State determines for itself who directs the governor to take 
the action. In some States the governor has complete discretion 
to say yes or no. In a lot of States, the Stage legislature 
actually can restrict the governor's discretion to say yes or 
no.
    Senator Cortez Masto. So you are telling me the State 
legislature can restrict the governor under Federal law from 
weighing in on this?
    Mr. Tahsuda. Yes. That has been sort of the direction that 
court cases have gone over the years.
    Senator Cortez Masto. Wow. That is a new one on me. That is 
interesting. I will have to look into that. I have never heard 
that the State has the ability to come in and waive Federal law 
or change Federal law in any manner whatsoever.
    So thank you. I appreciate the indulgence.
    Senator Udall. Thank you. Ms. Fire Thunder, in February 
this year, I received a letter from the Santa Fe Indian School 
that linked improvement recruitment and retention at BIE 297 
schools with access to the Federal Employee Health Benefits 
program. The letter said, ``Access to these benefits will 
support us in our efforts to attract and retain the best 
teachers.''
    Ms. Fire Thunder, can you briefly explain how the Tribal 
School Federal Insurance Parity Act will give 297 schools more 
tools to tackle teacher shortages?
    Ms. Fire Thunder. When we go recruiting, and we go to the 
university campuses around our region to recruit, inevitably we 
need to be able to offer non-tribal members who have the 
background to come teach in our schools, like in any part of 
the United States, a package that is not only salary, but has a 
good health insurance package. This will also, we hope that 
that is going to allow those who are undecided to come to our 
schools, that this health insurance package will be an 
inducement for them to consider to come work at our schools.
    Senator Udall. Thank you for that answer.
    Teacher recruitment and retention in Indian Country has 
long been a concern of this Committee. In fact, at our last 
Government Accountability Office high-risk hearing in March, 
Senator Tester asked BIE Director Dearman if he had any data on 
teacher vacancies at the Bureau. He didn't at the time, but he 
promised to get back to the Committee.
    Mr. Tahsuda, since then, has the Department been able to 
determine the number of BIE teacher vacancies at direct service 
schools?
    Mr. Tahsuda. Senator Udall, let me make sure. Are you 
asking about teacher vacancies that are directly operated 
schools?
    Senator Udall. Yes, that is correct.
    Mr. Tahsuda. At the risk of being inaccurate, I would like 
to get back to you with some direct numbers. We have been 
working on a workforce plan. There is also, as you would guess, 
in schools there is some fluctuation from year to year, as you 
have fluctuations in student populations at different age 
groups and you need different teachers. So sometimes we have 
short-term shortages. We would like to get back to you, though, 
with sort of the overall plan and where we are with that.
    Senator Udall. Okay, and you will get back to us for the 
record on that.
    Mr. Tahsuda. Yes.
    Senator Udall. Okay, great. And has the Department been 
able to reach out to tribally-operated BIE schools to estimate 
their teacher vacancy levels?
    Mr. Tahsuda. I understand that is a work in progress. 
Again, if I could get back to you, and we could at least give 
you a status report of where we are with that. As you might 
guess, that is less under our control and we are more dependent 
upon the time and the resources that the tribes and the schools 
have available to give us information as we ask for it. But we 
will provide that to you as well as we can.
    Senator Udall. Okay. Whether it is teacher vacancies, 
causes of student absenteeism, or student outcomes, this 
Committee's oversight efforts have been hindered by the lack of 
good data housekeeping at BIE. The department must do a better 
job of tracking BIE data. I hope you will take that message 
back to Assistant Secretary Sweeney. I would like you to follow 
up with Senator Tester and me about teacher vacancy data.
    Ms. Fire Thunder, are there high teacher vacancy rates on 
Pine Ridge?
    Ms. Fire Thunder. At Little Wound School, 100 percent of 
our administrators are tribal members, our superintendent, our 
high school principal, our middle school principal and our 
elementary principal are all tribal members. We have Oglala 
College on our reservation, they have done a bang-up job and we 
work very closely with them as we begin to recruit high school 
students now to consider teaching as a career. So we are doing 
all kinds of things collectively, talking to each other, to 
induce more of our tribal citizens to become teachers and to be 
present in the classroom.
    Senator, my big push is to try and get more men in the 
classroom. At Little Wound School, we have three men in our 
classrooms. At Loneman School, there are seven men in the 
classroom. So we are working very diligently, collectively, 
helping each other to fulfill that need. We really are looking 
forward to creating that stronger partnership to get more of 
our own tribal citizens into the classroom. I think we are 
doing a pretty good job. Thank you.
    Senator Udall. Would you agree that teacher shortages are a 
problem facing all three types of BIE schools?
    Ms. Fire Thunder. I agree teacher shortage is a problem not 
only on Indian reservations, but across the United States. It 
seems to be a conversation in the State of South Dakota as 
well, of off-reservation schools that are not Indian schools. 
The teacher shortage is a big challenge not only for us, but 
across America.
    Senator Udall. We have heard today that S. 279 will help 
BIE 297 schools offer more competitive recruitment packages. As 
I mentioned in my opening, I was glad to join Senator Tester 
last month to reintroduce the Native Educator Support and 
Training Act, another bill that would give Native schools more 
teacher resources. I hope we can work together, the Chairman 
and myself, to get both bills across the finish line soon.
    Now, moving on to New Mexico, tribal issues in the Acoma 
BIE 297 experience, Mr. Tahsuda, last year, Acoma Pueblo took 
over operation of the Sky City Community School from the 
Federal Government via a 297 BIE grant. But I understand that 
the Pueblo's department of education experienced a number of 
obstacles post-takeover, obstacles such as BIE did not leave 
the tribe usable copies of student records of special education 
files, BIE did not inform the tribe that 297 schools might be 
ineligible to continue renting school buses from the GSA, and 
the Pueblo found a number of student health and safety issues 
related to the school facilities after it took charge of the 
campus.
    I want to make sure Acoma is getting proper and prompt 
assistance from BIE on these issues. But I also want to make 
sure communities that don't take over BIE direct service 
schools via 297 grants don't encounter the same issues. It 
seems to me that the BIE should have encountered and solved 
these same problems before. This was by no means the first 297 
conversion.
    Will you commit the Department to working with Acoma and my 
staff to resolve the remaining issues with the 297 transition, 
especially on the GSA buses problem?
    Mr. Tahsuda. Thank you, Vice Chairman. Short answer yes, 
obviously we will work with you as closely as we can. We can 
look immediately into the question about the records. I would 
be ashamed if that is what happened, but we will certainly look 
into that.
    The school bus rental issue was not one of our own making, 
unfortunately, it was a GSA issue they raised with us. But I 
believe we have, I think we have resolved that with them and 
that it should not be a problem going forward. We will confirm 
that for you, though.
    So the question of facilities, this is a question that we 
have across the board, obviously. Frankly, we probably, if we 
had historically been able to keep up better with the 
maintenance, et cetera, on our school facilities, we might have 
more tribes that would be taking them over. But I do know that 
we try to do our best to have the facility in the best 
condition we can, given the budgets that we have, before we 
turn them over to a tribe and they take it over.
    I do know that it is actually a pretty in-depth discussion 
and review that happens between the BIE staff, both locally at 
the school and all the way up to the director's office, with 
the tribe, the local community, et cetera. I know they work 
with them often to make sure that they are going to have a very 
involved parent committee, et cetera. We usually have ones with 
our directly-operated schools. Sometimes when a tribe takes it 
over there is a perception that we don't need that. But we work 
hard with them.
    So things like that, I know they work closely with them. 
For Acoma in particular, again, if you could bear with me, we 
will try to get more information and get back to you on that.
    Senator Udall. Okay, thank you for that commitment.
    Does the Department have a checklist or technical 
assistance protocol for communities that want to take over BIE 
direct service schools via 297 grants?
    Mr. Tahsuda. Thank you, Senator. We do, we can provide that 
to you. In fact, at your convenience, I will come with Director 
Dearman and we can quickly go through the checklist and tell 
you what the process is.
    Senator Udall. Does that protocol or guidance anticipate 
issues like those flagged by Acoma? And if not, why not?
    Mr. Tahsuda. I would say that it should. Again, if we get a 
chance to sit down with you, perhaps Director Dearman, who has 
been involved with it, I have not personally been involved in a 
transfer over, but he has. Maybe he can give a better 
explanation in person.
    Senator Udall. I look forward to that.
    Chief Harris, the Committee just held a hearing on 
community development in Indian Country. We examined the 
different programs offered by the Federal Government to provide 
access to capital to Indian Country. Can you tell the Committee 
about the Tribe's economic development ventures and any 
obstacles that you have faced in jump-starting your tribal 
economy?
    Mr. Harris. I think, if we start from the beginning, it was 
the land mass itself. It is kind of hard to build an economic 
development program on 1,000 acres when you are also housing 
your own citizens on that acreage.
    We currently have one employee who is not under a Federal 
grant. It is a pumper truck business. So we have been greatly 
restricted by the agreement, and hard to actually work with the 
Federal Government on trying to get economic development for 
the Catawba people.
    Let me go back and address one things that Senator Cortez 
Masto said, and that was the Section 20 provision. There is one 
part of that provision that says that no lands taken after 1998 
can be gamed on. So if you keep the provision in, then we are 
asking 790 to take land into trust for the purpose of gaming. 
So just remove it, and that way you won't have to deal with 
that issue.
    Senator Udall. Yes. And John, you were answering questions 
on that, too. Does that spark additional comment by you?
    Mr. Tahsuda. Yes, Senator. To clarify, Senator, the bill is 
intended to clarify and correct some provisions of the 
settlement act that did not operate the way they were intended. 
If you are going to do that, if Congress is going to act, it 
would seem like you would want to do it in the most direct 
manner possible, so that we have clear direction, we can take 
action on behalf of the tribe, as seems to be the intend of the 
bill, in the most direct way possible.
    Senator Udall. Okay. Let's see here. Chief Harris, does the 
Tribe own the land that is described in the bill?
    Mr. Harris. We do not own the land. We have a power of 
attorney over it, basically, where it is holding as we work our 
way through this. If we end up with a piece of property, that 
would be great.
    Senator Udall. Who owns the land right now?
    Mr. Harris. Right now it is shared, I guess, is the best 
way to put it, between the owner and the nation.
    Senator Udall. Who is the actual owner of the property 
right now?
    Mr. Harris. His name is Tester. John Tester, if you want 
his name. Not that one there.
    Senator Udall. Not that one.
    Mr. Harris. It would be wonderful if it was, but it is not.
    [Laughter.]
    Senator Udall. You know, Tester has always wanted to be 
rich. I know he hung out at the lunch with Senator Rockefeller. 
People always asked him why he did, and he said he wanted him 
to adopt him.
    [Laughter.]
    Mr. Harris. Maybe we can work something out on this end.
    Senator Udall. Can you tell us on this John Tester, is he a 
businessman and where does he reside?
    Mr. Harris. He is a businessman, and he does reside in 
North Carolina.
    Senator Udall. Okay, in North Carolina, which city?
    Mr. Harris. Outside of Charlotte.
    Senator Udall. Okay. Great. And if we need further 
information on him?
    Mr. Harris. I will be more than happy to provide any 
information.
    Senator Udall. Great.
    Mr. Tahsuda, since the tribe does not currently own the 
land, how does this impact the Department's process for placing 
the land into trust?
    Senator Udall. Thank you, Senator. I guess in short it 
doesn't affect the process much. We oftentimes, particularly in 
economic development ventures, we get asked by the tribe to 
consider taking the land into trust. It may be owned by a 
business partner or somebody else. The actual process would be 
rather than from the tribal ownership to Federal, in benefit 
for tribal ownership, it would be from the other party to the 
Untied States, but in benefit for the tribe. So it doesn't 
really impact how we process it differently.
    The only issues we have are to make sure that we have 
access to follow through on our process, like NEPA, et cetera, 
so that we can walk the property and do the physical things 
that we have to do to process the application. That is the only 
thing.
    Senator Udall. To your knowledge, has the Department ever 
taken land into trust for a parcel a tribe does not own?
    Mr. Tahsuda. I believe we have done it many times. I don't 
know if I can give you a number, but it is not unusual.
    Senator Udall. Okay, and you could give us examples on 
that?
    Mr. Tahsuda. Yes, sir.
    Senator Udall. And Council Member Suppah, the supplemental 
treaty has been in place since 1865. According to testimony 
received by the Committee it appears both the governor of 
Oregon and the Department have no objection to this treaty 
being repealed. Since the 1865 supplemental treaty has been in 
place, has your tribe been hindered by any of its requirements, 
such as needing permission to leave the reservation from the 
area superintendent of Indian Affairs, or if so, can you tell 
the Committee some of those hindrances?
    Mr. Suppah. Maybe the statement in the testimony, because 
the 1865 treaty has never been enforced, its nullification will 
have no impact on the State of Oregon's rights or that of its 
citizens. The bill simply states that the 1865 treaty shall 
have no force or effect. It would allow the Warm Springs Tribes 
to continue to exercise their 1855 off-reservation rights 
without future fear of litigation or extortion.
    Senator Udall. Councilman, thank you very much for that 
answer.
    Mr. Harris, I noticed you were helped by your assistant 
with something. Is there something you want to amend your 
answer on?
    Mr. Harris. I will be honest with you, I am sitting here 
and I have never done this before, so I am quite nervous.
    Senator Udall. Well, we want you to be totally relaxed and 
give us accurate answers. So you take your time.
    Mr. Harris. Let me take a breath and go with this.
    Senator Udall. Drink some water and just relax, take a 
couple of breaths, that is fine. Don't worry.
    Mr. Harris. Okay. So the word I was looking for was, the 
tribe does have an option on the land, an agreement to sell. 
That was the word I was looking for.
    Senator Udall. So the tribe has an option.
    Mr. Harris. Yes.
    Senator Udall. But the tribe hasn't exercised its option, 
so it has a legal option on the land owned by John Tester.
    Mr. Harris. Correct.
    Senator Udall. Not Senator Tester.
    Mr. Harris. Not Senator Tester. Unless there is something I 
don't know.
    [Laughter.]
    Senator Udall. Yes. And he is a North Carolina citizen?
    Mr. Harris. Yes, that is correct.
    Senator Udall. Okay, well. Yes, please.
    Ms. Fire Thunder. Thank you, Senator Udall. I just wanted 
to introduce for the record a letter from my tribal president, 
from the Oglala Sioux Tribe, supporting this legislation that 
we were talking about. I am so excited and nervous, it has 
taken us eight years to get here, Senator.
    Senator Udall. Okay, we are allowing that into the record.
    I don't like the idea of everybody being nervous here. I am 
going to adjourn the hearing, but take a couple of breaths, 
don't hurry. There are a lot of friendly people out behind you.
    I am going to have to run for a vote. But I believe at this 
point, from everyone that has come and gone, I am the only one 
here, if there are no more questions for today, members may 
also submit follow-up written questions for the record that may 
go to all of you. The hearing record will be open for two weeks 
to allow that.
    I want to thank the witnesses for their time and testimony. 
We really, really appreciate your testimony. Sorry to have to 
run, but you don't have to run, you can take it slow, take a 
breath. You will be fine. Cheers, take care.
    The hearing is adjourned.
    [Whereupon, at 3:45 p.m., the hearing was adjourned.]

                            A P P E N D I X

  Prepared Statement of Ellen F. Rosenblum, Attorney General, Oregon 
                         Department of Justice
                                no. 8295
    This opinion responds to a question from Governor Kate Brown about 
the off-reservation hunting rights of the Confederated Tribes of the 
Warm Springs Reservation of Oregon (``the Tribe''). It focuses on 
whether the Tribe's off-reservation hunting rights would be defined by 
the Treaty with the Tribes of Middle Oregon of June 25, 1855 (``1855 
Treaty'')-which reserved those rights-or by the Treaty with the Middle 
Oregon Tribes of November 15, 1865 (``1865 Treaty'')-which on its face 
relinquished them.
QUESTION PRESENTED
    Does the doctrine of issue preclusion bar the State from disputing 
that the 1855 Treaty governs the Warm Springs Tribe's off-reservation 
hunting rights?
SHORT ANSWER
    Yes. Issue preclusion would bar the State from litigating whether 
the Tribe holds offreservation hunting rights based on the 1855 Treaty, 
including from arguing that the 1865 Treaty relinquished those rights. 
In U.S. v. Oregon, the State litigated, and lost, the issue of whether 
the earlier 1855 Treaty governs the Tribe's off-reservation fishing 
rights. The issue of whether the Tribe holds off-reservation hunting 
rights based on the 1855 Treaty is substantially identical to the issue 
earlier litigated. Therefore, the State would be precluded from 
litigating that hunting-rights issue with the Tribe, and accordingly, 
from arguing that the 1865 Treaty relinquished those rights.
    Our analysis is specific to treaties, as opposed to generally 
applicable laws. It is also specific to potential civil litigation 
between the Tribe and the State construing the Tribe's offreservation 
hunting rights. Issue preclusion is generally disfavored against the 
government where the parties are not the same as in the earlier 
litigation, or where preclusion would result in inequitable 
administration of the law. Neither of those circumstances is present 
here: the Tribe is the only entity whose off-reservation hunting and 
fishing rights are addressed by the 1855 and 1865 treaties, and both 
the Tribe and the State were parties to the earlier U.S. v. Oregon 
litigation.
    As a practical matter, the Oregon Fish and Wildlife Commission 
adopts the rules that are criminally enforced by law enforcement 
officers in Oregon, and in turn by county District Attorneys. As a 
state agency, the Commission is guided by this opinion. Accordingly, 
any rules adopted by the Commission should be consistent with this 
opinion. And, further, the criminal enforcement of the Commission's 
rules should be consistent with this opinion.
    This opinion does not address whether issue preclusion applies to 
any other issue relevant to the Tribe's off-reservation hunting rights.
DISCUSSION
I. Background
    In 1855, the Tribe entered into a treaty with the federal 
government that ceded the Tribe's territorial interests in exchange for 
consideration that included a reservation and monetary compensation. 
\1\ The Tribe also reserved certain off-reservation hunting and fishing 
rights: the right to take fish ``at all other usual and accustomed 
stations, in common with citizens of the United States,'' as well as 
``the privilege of hunting*  *  *on unclaimed lands, in common with 
citizens. `` \2\
---------------------------------------------------------------------------
    \1\ Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat 
963 (1859).
    \2\ Id. at 964.
---------------------------------------------------------------------------
    However, the later 1865 Treaty ostensibly relinquished those same 
off-reservation hunting and fishing rights. \3\ The 1865 Treaty 
contained other unfavorable terms, such as restricting the Tribe to its 
reservation absent written permission from the federal superintendent 
of Indian affairs. \4\ Examining these terms and the historical record, 
a United States Forest Service study later concluded that the tribal 
leaders' signatures were obtained by fraudulent means. \5\ Despite 
these circumstances, this opinion focuses only on whether the State 
would be precluded from asserting the 1865 Treaty. It therefore does 
not address the validity of the 1865 Treaty.
---------------------------------------------------------------------------
    \3\ Treaty with the Middle Oregon Tribes, Nov 15, 1865, 14 Stat 
751, 751 (1867) (``[I]t is hereby stipulated and agreed that *  *  *  
the right to take fish [and] hunt game *  *  *  upon lands without the 
reservation*  *  *  are hereby relinquished.'').
    \4\ Id. at 751-52.
    \5\ Les McConnell, USDA Forest Service-Pacific Northwest Region, 
The Off-Reservation Treaty Reserved Rights of the Tribes of Middle 
Oregon 2 (June 20, 1997).
---------------------------------------------------------------------------
    In 1968, the Tribe and the State litigated the Tribe's off-
reservation fishing rights in U.S. v. Oregon in federal district court 
in Oregon. \6\ The Tribe contended that the State could restrict the 
Tribe's off-reservation fishing only in certain circumstances. \7\ The 
State, on the other hand, argued that it could regulate the Tribe's 
fishing to the same extent as it could regulate the fishing of other 
persons. \8\ The primary issue in dispute was how to interpret the 
wording of the 1855 Treaty that reserved to the Tribe rights ``in 
common with citizens of the United States.'' \9\ However, the State 
also attacked the relevance of the 1855 Treaty. The State argued that 
the Tribe's off-reservation fishing rights had been modified by 
Oregon's admission to the union and then by the 1918 Columbia River 
Compact. \10\
---------------------------------------------------------------------------
    \6\ See Sohappy v. Smith, 302 F Supp 899,903-04 (D Or 1969). The 
United States government and several other tribes also were parties to 
the litigation against the State; however, those parties are not 
relevant to our discussion here.
    \7\ Id. at 907.
    \8\ Id.
    \9\ See Id. at 904-05.
    \10\ Id. at 912. The compact between Oregon and Washington governs 
the regulation, preservation, and protection offish in the Columbia 
River. ORS 507.010.
---------------------------------------------------------------------------
    The court ruled for the Tribe, noting that the United States 
Supreme Court had interpreted similar treaties to permit fishing 
regulations only if they were necessary for the conservation of fish, 
met appropriate standards, and did not discriminate against the Tribe. 
\11\ The court rejected the State's arguments that the Tribe's off-
reservation fishing rights had been altered by Oregon's admission to 
the Union or by congressional approval of the 1918 Columbia River 
Compact. \12\
---------------------------------------------------------------------------
    \11\ Sohappy, 302 F Supp at 906-07; Judgment at 2-3, United States 
v. Oregon, No 68-513 (D Or Oct 10, 1969). After the district court 
issued its judgment, it retained jurisdiction and ``became the forum 
for allocating the harvest offish that enter the Columbia River 
System.'' United States v. Oregon, 913 F2d 576, 579 (9th Cir 1990). 
That substantial subsequent history does not affect our analysis here.
    \12\ Sohappy, 302 F Supp at 912.
---------------------------------------------------------------------------
    Although the court's judgment in U.S. v. Oregon construed the 
Tribe's off-reservation fishing rights, it did not address the Tribe's 
off-reservation hunting rights--rights that were reserved by the same 
1855 Treaty. The governor has asked us whether any issue resolved by 
that judgment would preclude the State from arguing in potential 
litigation with the Tribe that the 1865 Treaty relinquished those off-
reservation hunting rights.
II. Issue Preclusion Standard
    Issue preclusion ``bars the relitigation of issues actually 
adjudicated in previous litigation between the same parties.'' \13\ 
This ``protect[ s] litigants from the burden of relitigating an 
identical issue with the same party [and] pro mot[ es] judicial economy 
by preventing needless litigation.'' \14\ Three elements must be 
satisfied in order for issue preclusion to apply:

    \13\ Clark v. Bear Stearns & Co., Inc., 966 F2d 1318, 1320 (9th Cir 
1992). Because the preclusive issue involved here was resolved by a 
federal district court in litigation based on a federal question, we 
look to federal common law. See Taylor v. Sturgell, 553 US 880, 891, 
128 S Ct 2161, 171 LEd 2d 155 (2008) (``The preclusive effect of a 
federal-court judgment is determined by federal common law.'').
    \14\ Parklane Hosiery Co., Inc. v. Shore, 439 US 322, 326, 99 S Ct 
645, 58 LEd 2d 552 (1979).

         (1) the issue at stake must be identical to the one alleged in 
---------------------------------------------------------------------------
        the prior litigation;

         (2) the issue must have been actually litigated in the prior 
        litigation; and (3) the determination of the issue in the prior 
        litigation must have been a critical and necessary part of the 
        judgment in the earlier action. \15\
---------------------------------------------------------------------------
    \15\ Clark, 966 F2d at 1320. Issue preclusion does not apply when 
the party ``did not have a 'full and fair opportunity' to litigate'' 
the issue in the earlier litigation. Allen v. McCurry, 449 US 90, 95, 
101 S Ct 411, 66 LEd 2d 308 (1980). Nothing in the record available to 
us suggests that the State did not have that opportunity in U.S. v. 
Oregon.

    The relevant issue does not necessarily have to be expressly 
mentioned in the prior litigation: ``[n]ecessary inferences from the 
judgment, pleadings and evidence will be given preclusive effect.'' 
\16\
---------------------------------------------------------------------------
    \16\ Davis & Cox v. Summa Corp., 751 F2d 1507, 1518 (9th Cir 1985).
---------------------------------------------------------------------------
    The Ninth Circuit Court of Appeals has recognized that properly 
defining the relevant issues can be a ``murky area.'' \17\ To resolve 
close cases, that court looks to four factors from the Restatement 
(Second) of Judgments:
---------------------------------------------------------------------------
    \17\ Starker v. United States, 602 F2d 1341, 1344 (9th Cir 1979).

         (1) is there a substantial overlap between the evidence or 
        argument to be advanced in the second proceeding and that 
        advanced in the first? (2) does the new evidence or argument 
        involve application of the same rule of law as that involved in 
        the prior proceeding? (3) could pretrial preparation and 
        discovery relating to the matter presented in the first action 
        reasonably be expected to have embraced the matter sought to be 
        presented in the second? (4) how closely related are the claims 
---------------------------------------------------------------------------
        involved in the two proceedings? \18\

    \18\ See Kamilche Co. v. United States, 53 F3d 1059, 1062 (9th Cir 
1995) (quoting Restatement (Second) of Judgments 27 cmt c (1982)), 
amended by 75 F3d 1391 (9th Cir 1996).

    These factors ``are not applied mechanistically.'' \19\ They seek 
to balance ``a desire not to deprive a litigant of an adequate day in 
court'' against ``a desire to prevent repetitious litigation of what is 
essentially the same dispute. `` \20\
---------------------------------------------------------------------------
    \19\ Howard v. City of Coos Bay, 871 F3d 1032, 1041 (9th Cir 2017)
    \20\ Restatement 27 cmt c.
---------------------------------------------------------------------------
    Although issue preclusion typically applies when both the parties 
in the subsequent suit are identical, it can also apply where the party 
asserting preclusion was not involved in the earlier suit. \21\ 
However, the United States Supreme Court has been skeptical of applying 
this nonmutual issue preclusion when the party defending against 
preclusion is the federal government. \22\ And federal appellate courts 
have applied the same reasoning to state governments defending against 
preclusion. \23\ Applying nonmutual issue preclusion against the 
government in the criminal context is also disfavored. \24\
---------------------------------------------------------------------------
    \21\ Parklane, 439 US at 331-32.
    \22\ United States v. Mendoza, 464 US 154, 162-63, 104 S Ct 568, 78 
LEd 2d 379 (1984) (distinguishing the conduct of government litigation 
from the conduct of private civil litigation).
    \23\ Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F3d 
708, 713-14 (9th Cir 2005) (applying Mendoza reasoning to protect state 
agency from nonmutual issue preclusion); Hercules Carriers, Inc. v. 
Claimant State of Fla., 768 F2d 1558, 1579 (11th Cir 1985) (recognizing 
that Mendoza reasoning applies to state governments as well).
    \24\ Standefer v. United States, 447 US 10,21-25, 100 S Ct 1999, 64 
LEd 2d 689 (1980).
---------------------------------------------------------------------------
    Similar concerns underlie the exception that issue preclusion will 
not apply if it would result in the inequitable administration of the 
law. \25\ This exception typically disfavors applying issue preclusion 
against governments that are enforcing generally applicable laws, that 
is, laws ``that affect[] members of the public generally.'' \26\ 
Allowing issue preclusion in such cases could ``give one person a 
favored position in current administration of a law.'' \27\
---------------------------------------------------------------------------
    \25\ Restatement 28(2).
    \26\ Id.  28 cmt c.
    \27\ Id.
---------------------------------------------------------------------------
III. Issue Preclusion Analysis
    The court's judgment in U.S. v. Oregon construed the Tribe's off-
reservation fishing rights to allow State regulation only in certain 
circumstances. \28\ The judgment and the court's opinion make clear 
that to reach this result, the court necessarily determined that the 
Tribe holds offreservation fishing rights based on the 1855 Treaty. For 
example, the court repeatedly stated that its reasoning was based on 
precedent concerning regulation of federal treaty rights. \29\ And the 
only treaty before the court that could have been the source of the 
Tribe's rights was the 1855 Treaty. \30\
---------------------------------------------------------------------------
    \28\ Judgment at 2-3, U.S. v. Oregon, No 68-513.
    \29\ Sohappy, 302 F Supp at 906 (relying on Supreme Court case that 
``restated the nature of the non-exclusive off-reservation fishing 
rights secured by these Indian treaties''); id. at 908 (``I believe 
that these contentions of the plaintiffs and the tribes correctly state 
the law applicable to state regulation of the Indians' federal treaty 
right.''). The judgment repeatedly referred to treaties, treaty tribes, 
treaty fishing, and treaty fisheries. Judgment at 2-3, U.S. v. Oregon, 
No 68-513.
    \30\ See Sohappy, 302 F Supp at 904.
---------------------------------------------------------------------------
    In addition, the parties actually litigated this fishing-rights 
issue: the State argued that any 1855 Treaty off-reservation fishing 
rights were altered both by Oregon's admission to the union and by 
congressional approval of the 1918 Columbia River Compact. \31\
---------------------------------------------------------------------------
    \31\ Id. at 912.
---------------------------------------------------------------------------
    U.S. v. Oregon focused only on the Tribe's off-reservation fishing 
rights, not on off-reservation hunting rights. However, the Ninth 
Circuit has recognized that in narrow circumstances, issues pertaining 
to different rights may be so similar as to allow issue preclusion. For 
example, in Kamilche Co. v. United States, the court held that the 
federal government was precluded from litigating the ownership of a 
disputed parcel of land, even though the specific acres at issue had 
not been at issue in the earlier suit. \32\ The court applied the 
Restatement factors discussed above, emphasizing that the evidence and 
arguments necessary to prove ownership of the earlier-litigated acres 
were identical to the evidence and arguments necessary to prove 
ownership of the subsequently litigated acres. \33\
---------------------------------------------------------------------------
    \32\ 53 F3d at 1062-63.
    \33\ Id. at 1062.
---------------------------------------------------------------------------
    We see a similarly close connection here between the issues of 
whether the Tribe holds off-reservation hunting rights based on the 
1855 Treaty and whether the tribe holds offreservation fishing rights 
based on that treaty. \34\ Both these rights were reserved by the Tribe 
in the same clause in the 1855 Treaty. \35\ And the U.S. v. Oregon 
court relied on evidence concerning both: For example, the court noted 
that during negotiations over the 1855 Treaty, ``the tribal leaders 
expressed great concern over their right to continue to resort to their 
fishing places and hunting grounds.'' \36\ The court added that the 
leaders ``were reluctant to sign the treaties until given assurances 
that they could continue to go to such places and take fish and game 
there.'' \37\
---------------------------------------------------------------------------
    \34\ Our conclusion--that the issues surrounding whether the Tribe 
holds off-reservation fishing and hunting treaty rights are identical--
does not mean that every issue concerning fishing rights is the same as 
every issue concerning hunting rights. As an illustrative example, the 
geographic scope of the tribe's off-reservation fishing rights is not 
coterminous with the geographic scope of its off-reservation hunting 
rights. See 1855 Treaty, 12 Stat at 964 (reserving the right to take 
fish at ``usual and accustomed stations,'' while reserving the right to 
hunt ``on unclaimed lands'').
    \35\ Id.
    \36\ Sohappy, 302 F Supp at 906 (emphasis added).
    \37\ Id. (emphasis added).
---------------------------------------------------------------------------
    Because of these similarities, the evidence and arguments necessary 
to prove that the Tribe holds off-reservation hunting rights based on 
the 1855 Treaty would substantially overlap with the evidence and 
arguments in U.S. v. Oregon. For example, in the potential hunting-
rights litigation, the Tribe would likely point to the text of the 1855 
Treaty as having reserved those rights, and to the historical 
circumstances surrounding the negotiation of those rights. The Tribe 
would also argue that Oregon's admission to the union did not modify 
those rights.
    In addition, we see nothing to indicate that the legal analysis 
relevant to determining whether the Tribe reserved off-reservation 
hunting rights in the 1855 Treaty would differ from the analysis in 
U.S. v. Oregon. Or that the legal analysis relevant to the effect of 
Oregon's admission to the union on those hunting rights would differ 
from the analysis in the earlier matter.
    The above similarities also indicate that litigating whether the 
Tribe holds off-reservation hunting rights based on the 1855 Treaty 
would be essentially the same dispute as was resolved earlier in U.S. 
v. Oregon. Applying issue preclusion would therefore serve the 
underlying goals of increasing judicial economy and not unnecessarily 
burdening prevailing parties.
    Because the identical issue was actually litigated in U.S. v. 
Oregon, and was critical and necessary to the court's judgment, the 
State would therefore be precluded from litigating with the Tribe the 
issue of whether the 1855 Treaty controls the Tribe's off-reservation 
hunting rights. That conclusion would also preclude the State from 
making any legal arguments inconsistent with the court's resolution of 
the issue. \38\ Accordingly, the State would be precluded from arguing 
that the 1865 Treaty relinquished the Tribe's off-reservation hunting 
rights.
---------------------------------------------------------------------------
    \38\ See Kamilche, 53 F3d at 1063 (``[O]nce an issue is raised and 
determined, it is the entire issue that is precluded, not just the 
particular arguments raised in support of it in the first case.'' 
(Italics in original; internal quotation marks omitted.)).
---------------------------------------------------------------------------
    Essential to our reasoning is that there are no arguments unique to 
off-reservation hunting rights--as distinct from off-reservation 
fishing rights--that indicate those rights were relinquished or 
modified. The existence of such arguments would likely mean that the 
State did not have a full and fair opportunity to litigate the issue in 
U.S. v. Oregon. \39\
---------------------------------------------------------------------------
    \39\ See Maciel v. Comm'r, 489 F3d 1018, 1023 (9th Cir 2007) (issue 
preclusion does not apply when a party ``had good reason not to contest 
an issue vigorously during the first action''). The existence of unique 
arguments might also suggest that the relevant issues are not 
identical.
---------------------------------------------------------------------------
    Furthermore, none of the concerns exist here with applying 
preclusion against a government. First, we are dealing with mutual 
issue preclusion because the State and the Tribe were both parties to 
U.S. v. Oregon. This eliminates the concerns with applying nonmutual 
issue preclusion. And second, preclusion will not result in the 
inequitable administration of the law because the 1855 and 1865 
treaties are not generally applicable laws: the Tribe is the only 
entity whose off-reservation hunting and fishing rights are addressed 
by these treaties.
    Attachment
                        Kate Brown, Governor, State of Utah
                                                    January 31,2019
Chairman Austin Greene, Jr. and Members of the Tribal Council,
Confederated Tribes of Warm Springs,
Warm Springs, OR.
        Re: Policy of my administration regarding the 1865 
                                          Huntington Treaty

Dear Chairman Greene and Honorable Members of the Tribal Council of the 
Confederated Tribes of Warm Springs:

    I write to state my position, and the position of my 
administration, on the document known as the Huntington Treaty of 1865.
    The Oregon Department of Justice once described this document to 
the Oregon Court of Appeals as a ``historical curiosity ... that has 
never been enforced.'' I have concluded that it was induced through 
fraudulent and dishonorable means and represents, as the late Senator 
Mark O. Hatfield eloquently stated on the floor of the United States 
Senate in 1996, a ``historical travesty.'' It is unimaginable that the 
proud and independent Tribes of Middle Oregon who signed the Treaty of 
June 25, 1855, and insisted on language in that Treaty reserving their 
sovereign rights to fish, hunt, and gather traditional foods, would 
have knowingly surrendered those rights for virtually nothing just ten 
years later and agreed to the indignity of needing the Federal 
Government's written consent to leave the reservation.
    Accordingly, by this letter to you, the governing body of the 
Confederated Tribes of the Warm Springs Reservation of Oregon, I 
declare it the policy of the Office of the Governor of the State of 
Oregon that the fraudulent Huntington Treaty of 1865 is to be regarded 
as a nullity with no effect whosoever. It shall be the policy of the 
Office of the Governor, so long as I am the Governor of Oregon, that no 
state agency or official under my authority shall assert on behalf of 
the State that the fraudulent Huntington Treaty of 1865 has now, or 
ever has had, any legal effect whatsoever.
    In pursuit of this policy, I further pledge that I will devote the 
resources of my office, as Governor of Oregon, to work together with 
you to secure appropriate congressional action that will unequivocally, 
for once and for all time, rescind and nullify the historical injustice 
of the--Huntington Treaty of 1865.
    Thank you for your attention to this important matter.
        Sincerely,
                                        Governor Kate Brown
                                 ______
                                 
                                American Gaming Association
                                                        May 1, 2019
Hon. John Hoeven,
Chairman,
Hon. Tom Udall,
Vice-Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.

Dear Chairman Hoeven and Vice Chairman Udall:

    On behalf of the American Gaming Association (AGA), I appreciate 
the opportunity to comment on S. 790, a bill to clarify certain 
provisions of Public Law 103-116, the Catawba Indian Tribe of South 
Carolina land Settlement Act of 1993, and for other purposes.
    In recent years, AGA has expanded its membership to be more 
reflective of the U.S. gaming industry, and now includes gaming 
suppliers and tribal gaming operators. In line with AGA's membership 
evolution, we have also modernized our position regarding off-
reservation tribal gaming. In the past, AGA opposed all efforts to open 
off-reservation gaming facilities. After lengthy and open discussions 
with our membership, we have modified this position and recognize the 
Indian Gaming Regulatory Act (IGRA) specifically contains exceptions. 
However, our membership continues to have significant concerns about 
tribes attempting to locate new facilities far from their homelands 
simply to increase their potential profit. Accordingly, AGA believes a 
Tribe should be required to have both historic and geographic 
connections to the land they are acquiring for off-reservation gaming. 
While AGA is not in a position to serve as the arbiter of competing 
assertions related to fact patterns surrounding tribal land claims, we 
strongly recommend the Committee ensure both of these important 
criteria are met as you consider S. 790.
    AGA also supports policies that strengthen process transparency and 
clear bright-line standards to ensure marketplace certainty. AGA, 
therefore, has concerns that S. 790 would explicitly remove the 
application of section 20 of IGRA to the land authorized to be taken 
into trust under the bill. Circumventing the bright line standards 
established by IGRA creates a precedent that runs counter to our 
overarching goal of ensuring a consistent and transparent process 
surrounding off-reservation gaming determinations. We respectfully urge 
the Committee to strike this exception if the legislation is considered 
at markup.
        Sincerely,
                                     William C. Miller, Jr.
                                                      President/CEO
                                 ______
                                 
   Keith Miller, City Councilmember At-large City of Kings 
                                                   Mountain
                                                        May 3, 2019
Hon. John Hoeven,
Chairman,
Hon. Tom Udall,
Vice-Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.

Dear Chairman Hoeven and Vice Chairman Udall:

    I am writing to you regarding the S. 790--A bill to clarify certain 
provisions of Public Law 103.116, the Catawba Indian Tribe of South 
Carolina Land Claims Settlement Act of 1993 (The '93 Act). Please 
include this correspondence in the open record to the committee's 
consideration of S. 790.
    May it please be it made known to the honorable members of the 
Committee that,

   I am among the current majority of The City of Kings 
        Mountain City Council, 4 of 7 members, who are in opposition to 
        the approval of t he Catawba's application, has sent letters of 
        opposition and made in person visits to the Bureau of Indian 
        Affairs (BIA) and Department of Interiors (DOl) expressing 
        opposition to approval of the Tribe's application, and I oppose 
        the referral/recommendation of S. 790.

   75 area pastors signed a letter opposing the proposed 
        casino.

   102 of 111 Cleveland County, NC pastors surveyed indicated 
        ``a gambling casino in Kings Mountain would be bad.''

   Over 1,000 community residents have signed a petition 
        expressing opposition to the proposed casino.

    May it also be made known to the honorable members of the committee 
that The Catawba Indian Nation was to be paid $50 million under the '93 
Act and agreed to the conditions listed below, which may not be 
corrected or addressed by S. 790, and, moreover, S. 790 may be 
inconsistent with.

        1.  The '93 Act may be amended for only four reasons and 
        casinos may not one of the four, US Code, Title 25, subchapter 
        43A  941 m (f); SC MOU  19.5. If S. 790 is in effect and 
        amendment of the '93 Act and not consistent with 25 USC 43A 
        941m(f) then there may be a basis for legal challenges to S. 
        790.

        2.  The time limit to purchase land for reservation purposes 
        (casinos) may have expired in 2008, USC 25 43A  941j (k); SC 
        MOU  14.14. \1\

    \1\ We visited with BIA staff challenging the veracity/accuracy of 
certain claims made in the affidavit filed on behalf of Chief Harris 
with respect to this point. At that time no verification by BIA/DOI of 
the affidavit claims had been attempted.
---------------------------------------------------------------------------
        3.  BIA procedures and IGRA laws are non-applicable for Catawba 
        land acquisitions and reservation status, USC Title 25, 
        subchapter 43A  941 j (m), I (a); SC MOU  14.16.

        4.  The '93 Act extinguishes & bars future claims, USC 25, 
        subchapter 43A  941 d (c), (d), (e), SC 27-16-60; MOU  6

        5.  Land in NC is outside of the Primary and Secondary 
        Reservation areas, US Code, Title 25, subchapter 43A  941 j 
        (c) (1), (c) (2); SC 27-16-90 (E); SC MOU  14.3, 14.4, 14.5.

        6.  The SC Governor, SC general assembly and the county council 
        all need to approve expansions of noncontiguous reservation 
        area, which may make NC acquisitions constitutionally 
        impossible under the '93 Act, US Code, Title 25, 43A  941 j 
        (b); SC 27-16-90 (B) (1) (b), (b) (2), (b) (3), (E): SC MOU  
        14.2 and 14.5.

        7. SC law governs all gambling on all property owned by the 
        Tribe, including land placed into Trust by BIA/DOI, and SC law 
        currently prohibits casinos and creates an unconstitutional 
        situation where SC law will govern activity in NC, US Code, 
        Title 25, subchapter 43A  9411 (b); SC 27-16-110; SC MOU  
        14.16.

        8. SC state and York County, SC codes & ordinances apply to all 
        future Catawba development making a NC casino regulated by SC 
        constitutionally impossible. SC 27-16-120 et al; SC MOU  17.

        9. Use of eminent domain (mandatory takings) is expressly 
        prohibited, USC 25 43A 941j(e)(l); SC27-16-90 (H); MOU  14.8. 
        Note, the '93 Act incorporates the SC law and the MOU to 
        Federal status as part of the '93 Act.

    Below I discuss some of my economic, political, spiritual, and 
constitutional concerns with the proposed casino project. I also 
suggest new regulations to protect vulnerable families from financial 
harms created by over indulging in gambling.
    Carcieri. The SCOTUS Carcieri decision limited Indian Gaming 
Regulatory Act (IGRA) land into trust applications to only those Tribes 
who were federally recognized before 1934. The Catawba Nation was not 
federally recognized until1993. Are we ignoring Carcieri here? Do we 
want to open a floodgate of new tribal recognitions and federal land 
and jurisdiction grabs leading to a flood of new casinos nationwide?
    Loss of manufacturing jobs. At a trade show I asked a national 
economic development recruiter about his experience with manufacturers' 
attitudes about sites near casinos. He told me about an executive that 
wanted to visit the proposed industrial sites at night. Standing there 
in the dark the recruiter asked the executive what he was looking to 
see. The executive said, ``casino lights''. I think he may not have 
wanted to locate a plant too close to a casino. The executive may have 
thought casinos increased the risks of shrinkage (employee theft), 
truancy, reduced productivity due to workers distracted by family 
financial strains from gambling losses, and corporate theft or 
espionage by executives who became indebted from gambling or 
compromised in prostitution, who then steal corporate intellectual 
property to pay debts or blackmailers. Our city has invested millions 
of dollars in our utility infrastructure, branding, site readiness and 
intragovernmental and community partnerships to enhance our capacity to 
attract and retain manufacturing jobs. I am concerned the casino may 
reverse our trend of expanding the number of manufacturing jobs. The 
casino may produce thousands of service jobs but may do so at a cost of 
hundreds of manufacturing jobs. Especially if the local government and 
utility boards become corrupted by casino shills that impair utilities 
to the point that manufacturers leave.
    Demonic Footholds and strongholds. I am concerned that the regular 
flow of men freely spending copious amounts of cash may attract a 
larger underground market for drugs, prostitution and pedophilia. This, 
in turn, may also attract more demons, wicked spirits and fallen 
angels. I do not want these dark material and spiritual influences to 
gain larger footholds or strongholds in our community. I encourage 
continued discussion with casino supporters to plan for on-site 
chaplaincy staff, trained in deliverance and spiritual warfare. I also 
encourage discussion with architects to include design elements known 
to be irritants to demons.
    Stumbling blocks. There may be 12 Bible passages telling us not to 
create stumbling blocks for our weaker brothers and sisters. Jesus 
himself warned it would be better for us to be drowned in the sea with 
a millstone tied around our necks than to cause one of the little ones 
who believe in Jesus to stumble. This weighs heavily on me. While it 
may only be about 1 in 300 people who go to a casino and become 
compulsively addicted, ruining their lives and families financially and 
socially, Jesus did not specify a minimum acceptable loss ratio. I 
think Jesus counts every soul precious and I am concerned He would not 
want us to facilitate laying this potential stumbling block in our 
community. Perhaps I am being overly cautious, as many legal products 
and activities may also represent stumbling blocks.
    Regardless of the outcome of t he Catawba Nation's application, 
Congress, DOl, BIA and the gaming industry should probably create 
financial suitability laws for gambling. The SEC and FINRA laws and 
regulations limit certain investments to investors with adequate 
income, assets and knowledge; and require spousal consent for certain 
actions. A similar regime of suitability and spousal protection laws 
could be created to protect the vulnerable from self-inflicted 
financial harm by overindulging in gambling. I would help draft such a 
bill.
    Culture shift. Christian parents without strong ties to the area 
have told me that if the casino comes, they are moving because they 
will not try to raise godly children in the shadow of a casino. 
Currently, most people in our community hold traditional American and 
Judea-Christian values. I expect the casino to change the in-migration 
and out-migration patterns in a way that may dilute the predominant 
culture of the area.
    A Republic of Sovereign States. Indian Nation Reservations are not 
treaties with sovereign nations with sovereign territory. They are 
effectively a federal creation of a federal subdivisions supreme to 
State sovereignty. I am not sure this is constitutional or wise. 
Perhaps God will give us a chance to test this question.
    Concentration risk. I am concerned that the proposed Catawba casino 
may concentrate enormous political influence in one entity, the casino. 
Casino profit margins may be substantially larger than other 
industries. Before a recent borrowing, the casino in Cherokee, NC 
generated over $200 million per year in distributable income on about 
$600 million in revenue, more than a 30 percent operating margin. That 
is a lot of money available to influence local elections. The Catawba 
casino could generate similarly large annual profits. However, the 
Catawba casino could be a multimillion dollar per year utility customer 
of the city, buying electricity, natural gas, water, sewer and dark 
fiber from the city. This may give the casino operators strong 
financial incentive to seek to influence their utility rates by 
influencing the city council who sets those rates. If the city council 
becomes coopted by individuals who shill for the casino our city budget 
and programs may coopted. Good employees will not to work for a city 
with a reputation of corruption. The current productivity and virtue of 
our city government could be eroded. The repercussions may similarly 
affect the community at large. I am concerned that we may start out as 
a small city on the interstate that gets a casino and turn into a 
casino on the interstate that owns a small city.
    I pray God makes His perfect will clear to all of us and helps us 
each heed the individual calls and interpretations He places in and on 
our souls. I will continue to ask Him to intervene in the affairs of 
mankind and direct our paths for optimal outcomes. Please do not 
hesitate to contact me if I can help in any way.
        Most respectfully,
                                               Keith Miller
    Attachment
                                               October 2014

    Dear Honorable Cleveland County Commissioners and City of Kings 
Mountain Councilmen,

    As ministers of the gospel and citizens of Cleveland County,

         We commend you for your diligent efforts in developing our 
        economy; and we further commend you for multiple successes 
        creating jobs for our citizens in difficult times;

         We however believe a casino in Kings Mountain will be 
        economically and socially harmful for our community; for we 
        believe gambling is Biblically and morally wrong;

         We therefore implore you to remove your names from your letter 
        supporting a casino, cease plans for a gambling casino, and 
        continue good economic development;

         For we humbly realize you will stand to give account for your 
        governing--even as we ministers will stand to give account for 
        our ministering--before the One upon whose shoulders the 
        government will rest, before the Lord on Judgment Day

    Respectfully and Prayerfully,
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    *A copy of an ad that ran in the Shelby Star newspaper on Sunday, 
May 5th in Shelby, NC. where more than 1,200 area residents signed a 
statement declaring their opposition to the proposed casino mentioned 
in S. 790 has been retained in the Committee files.*
                                 ______
                                 
Response to Written Questions Submitted by Hon. Catherine Cortez Masto 
                          to John Tahsuda III
    Question 1. Section 20(b) ofthe Indian Gaming Regulatory Act (lORA) 
provides the Secretary of the Interior with the discretion to allow 
gaming on lands acquired in trust by the Secretary, subject to certain 
requirements. Two of these key requirements are the Secretary must 
conduct consultation, and the Secretary must obtain concurrence in his 
decision to allow gaming from the Governor of the State in which the 
gaming activity is to be conducted. Section 1 (b) of S. 790 would 
eliminate these requirements for the Catawba Indian Nation tribe. Is it 
the Department's position that a Congressional hearing may serve as an 
adequate substitute for the consultation requirements in  20(b)(1)(A) 
of lORA?
    Answer. No, a congressional hearing is not a substitute for the 
Department's statutory requirement to consult under Section 20(b) of 
IGRA.

    Question 2. The governor's concurrence provision of Section 20(b) 
ofiGRA recognizes that, the proper spokesperson for the land in 
question is the Governor of the state where the land is located. A 
Governor is a state executive, operating under state law. Your 
testimony states, ``waiving Section 20 would be appropriate, I think, 
because it is requiring the action of the two Senators in North 
Carolina who have signed onto the bill indicating that Congress' 
original concern that the Administration would act without having other 
political involvement, that is not the case in this situation.'' Is it 
the Department's view that the ``action'' of the two Senators from 
North Carolina co-sponsoring S. 790 is sufficient to adhere to the 
governor's concurrence provision and override the Governor's authority 
under IGRA?
    Answer. No, however, Congress has the authority to enact 
legislation to alter the application of any federal statute.

    Question 3. Please confinn that S. 790 would be the first land into 
trust bill that would authorize a waiver of Section 20(b) ofiGRA, and 
state the Department's view as to why a waiver is necessary in this 
instance.
    Answer. On several occasions Congress has waived or altered the 
application of Section 20(b) to a particular piece of land. For 
example, in the Virginia recognition statutes, Congress waived Section 
20(b) by stating ``gaming is prohibited'' on such land.

    Question 4. During your testimony, you stated, ``every state has 
slightly different legal requirements as to who gets to determine on 
behalf of the State, but usually it is the governor. . . . ``Please 
provide the Committee with a list of states that have eliminated the 
authority for the Governor to make a concurrence with the Secretary's 
determination that gaming on proposed trust land ``would be in the best 
interest of the Indian tribe'' and ``would not be detrimental to the 
surrounding community.''
    Answer. The authority of a state official, even the chief executive 
of a state, is a matter of state law. The Department does not keep 
track of state law authorities.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                          Hon. William Harris
    Question 1. Please provide the Nation's application to the 
Department of the Interior to talke land into trust relating to the 
parcel in S. 790.
    Answer. See Attachment, Land into Trust Application. *
---------------------------------------------------------------------------
    * The document entitled APPLICATION OF THE CATAWBA INDIAN NATION TO 
ACQUIRE 16.57 ACRES +/- OF OFF-RESERVATION TRUST LAND IN KINGS 
MOUNTAIN, NORTH CAROLINA, PURSUANT TO 25 U.S.C.  5108 AND 25 C.F.R. 
PART 151--SEPTEMBER 17, 2018 has been retained in the Committee files
---------------------------------------------------------------------------
    Question 1a. Please also provide a list of all documents it has 
provided the Secretary to assist him in making a determination under 
IGRA Section 20(b). 
    Answer. Because the Nation is not subject to IGRA, the Nation is 
not required, and has not provide any documents to the Secretary with 
regard to Section 20(b). The reason the Nation is not subject to IGRA 
is that the Catawba Indian Tribe of South Carolina Land Claims 
Settlement Act of 1993, Pub. L. 103-116, formerly codified at 25 U.S.C. 
 941 et seq. (omitted from the editorial reclassification of Title 25) 
(``Settlement Act'') states unambiguously: ``The Indian Gaming 
Regulatory Act.shall not apply to the Tribe.'' Pub. L. 103-116 at  
14(a) (internal citation omitted). The Settlement Act does not 
condition IGRA's inapplicability to the Nation based on the geographic 
location of its activities. IGRA simply does not apply to the Nation 
regardless of where any gaming activities of the Nation are taking 
place.

    Question 2. Please describe the ``option'' to buy the land between 
the Nation and the current property owner referenced in your hearing 
testimony.
    Answer. The option agreement is with Trent Testa, in his capacity 
as the owner of Roadside Truck Plaza, Inc. The option was submitted to 
the BIA as part of its review of the Nation's land into trust 
application. As Principal Deputy Assistant Secretary John Tahsuda 
testified at the hearing, the use of option agreements is common with 
land into trust applications.

    Question 2a. Has the ``option'' been executed?
    Answer. Yes. The option agreement was originally executed with an 
effective date of May 4, 2013. It was renewed several times, including 
most recently on September 14, 2018. It is effective through January 
21, 2022.

    Question 2b. What assurances does the Nation have that if S. 790 is 
enacted, the property owner will not leverage the bill to insist on 
selling the property at a drastically increased price, similar to what 
the Nation experienced with other plots of land?
    Answer. The option agreement contains a fixed price for the sale of 
the property, which is below fair market value and which cannot be 
changed without the consent of both parties.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                            John Tahsuda III
BIE Teacher Recruitment and Retention
    Question 1. At the March, 13,2019 Oversight Hearing, Senator Tester 
asked BIE Director Dearman if he had any data on teacher vacancies at 
the Bureau. \1\ Mr. Dearman responded that he did not, but he promised 
to get back to the Committee. However, as far as I am aware, the 
Committee has not received this follow-up information. For the past 
five school years, please provide a national and regional summary of 
all BIE teaching and administrative vacancies.
---------------------------------------------------------------------------
    \1\ Where Are They Now: Indian Programs on the GAO High Risk List, 
Hearing Before the S. Comm. on Indian Affairs, I 16th Cong. (20 19) 
(statements of Sen. Jon Tester and Tony Dearman, Director, Bureau of 
Indian Affairs).
---------------------------------------------------------------------------
    Answer. Prior to the 2016 BIE Reorganization contract education 
vacancy data, including teaching and school administrative positions, 
was not collected. Following the transfer of human resources functions 
from BIA to BIE in February 2016, BIE began tracking such data for all 
directly operated BIE schools, including BIE-operated schools on the 
Navajo reservation. The total number of vacancies within BIE-operated 
schools fluctuates year-to-year based upon a variety of factors, 
including the number of enrolled students and whether there were any 
school conversions. Most recently, the total number of teacher 
positions within BIE-operated schools was 818.

------------------------------------------------------------------------
    Associate Deputy       SY 2016-2017    SY 2017-2018    SY 2018-2019
 Director (ADD) Offices      Vacancies       Vacancies       Vacancies
------------------------------------------------------------------------
Navajo Schools                        20             111             138
BIE Operated Schools                   4              82              88
------------------------------------------------------------------------
    TOTAL                             24             193             226
------------------------------------------------------------------------

    Question 1a. For the past five school years, please provide an 
annual estimate of the number of teacher vacancies nationally and 
regionally at the midpoint of each school year.
    Answer:

------------------------------------------------------------------------
                                                         Teacher Vacancy
            School Year 2017-2018 Facility              Rate at Midpoint
                                                              of SY
------------------------------------------------------------------------
ADD Navajo Schools                                                    11
ADD BIE Operated Schools                                               6
------------------------------------------------------------------------
    TOTAL                                                             17
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                         Teacher Vacancy
            School Year 2018-2019 Facility              Rate at Midpoint
                                                              of SY
------------------------------------------------------------------------
ADD Navajo Schools                                                    12
ADD BIE Operated Schools                                               9
------------------------------------------------------------------------
    TOTAL                                                             21
------------------------------------------------------------------------

    Question 1b. Is the Bureau able to estimate the levels of teacher 
vacancies at Tribally operated BIE schools?
    Answer. No. Tribally operated schools maintain complete autonomy 
and control over their human resources functions, including identifying 
the number of teaching and administrative positions and hiring. 
Additionally, tribally controlled schools are not required, and DIE has 
no power to compel, the reporting of intemal human resources data.

    Question 1c. Please provide a summary of faculty and administrative 
vacancies at Haskell and Southwestern Indian Polytechnic University for 
the 2018-2019 school year.
    Answer:

------------------------------------------------------------------------
                                                           Vacancies for
            Institution                 Vacancy Type        School Year
                                                             2018-2019
------------------------------------------------------------------------
Haskell Indian Nations University   Faculty                            2
Haskell Indian Nations University   Administrative                    12
Southwestern Indian Polytechnic     Faculty                            8
 University
Southwestern Indian Polytechnic     Administrative                    33
 University
------------------------------------------------------------------------

    Question 1d. What recruitment and retention programs or strategies 
is the Bureau currently utilizing to address the number of teaching 
vacancies?
    Answer. BIE has developed and is currently implementing milestones 
within its five year Strategic Direction designed to address common 
challenges, such as recruitment and retention. Additionally, the BIE 
has identified and is actively implementing the following strategies in 
order to address its current rate of critical skill vacancies:

   BIE Talent Recruiters: The BIE recently hired two full-time 
        BIE Human Resources staff as full-time talent recruiters. These 
        recruiters maintain direct contact with the career services 
        offices of nine (9) tribal colleges and ten (1 0) universities 
        with high Indian populations, including New Mexico, Montana, 
        Oklahoma and South Dakota. Additionally, during 2018-2019 
        School Year the two BIE talent recruiters attended ten (10) 
        regional job fairs, expanded online job advertisements beyond 
        USA Jobs to include Handshake, which posts our announcement's 
        on over 350 universities nationwide, Jobvite, Indeed, Team ND, 
        which posts jobs on the career sites of six (6) North Dakota 
        universities, and Jobzone, which posts on the career sites of 
        nine (9) Nebraska universities.

   Student Loan Repayment: The BIE recently began providing 
        student loan repayment recruitment incentives. In exchange for 
        the student loan repayment recruitment incentive, a newly hired 
        BIE employee must sign a written agreement to complete a 
        specified period of employment. During FY 2019, the BIE has 
        utilized its new student loan incentive to recruit five (5) 
        critical skill vacancies and plans to continue utilizing this 
        tool to fill additional vacancies.

   Recruitment Incentive: The BIE also recently began providing 
        a cash recruitment incentive to recruit qualified candidates 
        for difficult to fill vacancies. As is the case with the 
        student loan incentive, in exchange for the cash recruitment 
        incentive a newly hired BIE employee must sign a written 
        agreement to complete a specified period of employment. During 
        FY 2019, the BIE has utilized its new cash recruitment 
        incentive to recruit one (1) critical skill vacancy and plans 
        to continue utilizing this tool to fill additional vacancies.

P.L. 100-297 Tribally Controlled School Grants
    Question 1. On July 1, 2018, Acoma Pueblo's Department of Education 
(ADoE) took over operation of Sky City Community School, a BIE-operated 
school, via use of P.L. 100-297 grant and renamed the school Haak'u 
Community Academy. As noted in my October 18, 2018 letter to BIE 
Director Dearman, \2\ ADoE experienced a number of unanticipated 
difficulties during and after the transition process from direct 
service to 297 grant. For example, the week before this hearing, ADoE 
informed my staff that BIE did not--
---------------------------------------------------------------------------
    \2\ Letter from Sen. Tom Udall, vice chairman, S. Comm. of [ndian 
Affairs, to Tony Dearman, Director, Bureau of Indian Affairs (Oct. 18, 
2018) (on file with the S. Comm. oflndian Affairs).

   Inform the Tribe that it would remove basic software from 
---------------------------------------------------------------------------
        the school's computers;

   Leave copies of student records, including special education 
        files that are required for Individuals with Disabilities Act 
        (IDEA) compliance; and

   Inform the Tribe that ''297'' Grant schools are ineligible 
        to continue using GSA school buses.

    I am concerned that these miscommunications will impact the 
educational opportunities for Acoma students. What's more, these 
difficulties seem to indicate a broader problem related to the Bureau's 
technical assistance for Tribes and Tribal organizations interested in 
converting their direct-service BIE school to a P.L. 100-297 grant. Has 
the Department worked with ADoE and GSA to ensure student 
transportation is not disrupted at Haa'ku Academy?
    Answer. The Department has worked cooperatively with both ADoE and 
GSA regarding this matter, and we have been able to reach a short-term 
accommodation with GSA. Representatives from the BIE, the Solicitor's 
Office, and the Secretary's office have, and will, continue to actively 
engage with the GSA in an effort to reach a final resolution that 
minimizes disruption to the school.

    Question 1a. Will the Department review its protocols for student 
record transfers during the P.L. 100-297 conversion process to ensure 
there are no lapses in federal education law compliance?
    Answer. On July 2, 2018, BIE and Haak'u Community Academy personnel 
jointly accessed the school's student record vault to review and 
transfer said documents, including special education files. However, a 
few weeks following this transfer, school administrators communicated 
to BIE that some files appeared to be missing. BIE staff immediately 
identified that the issue was caused due to some original files being 
placed into archived status. BIE personnel then provided copies of the 
original files to the school. BIE remains committed to improving its 
services to Tribes and schools and regularly reviews its protocols.

    Question 1b. What training and technical assistance does BIE offer 
Tribal communities interested in taking over administration of a BIE 
school via a P.L. 100-297 grant?
    Answer. BIE's Associate Deputy Director offices and Education 
Resource Centers are specifically designed to provide individualized 
technical assistance to schools and tribes to support their educational 
sovereignty, including training and assistance regarding P.L. 100-297 
and 93-638 school conversions.
S. 790
    Question 1. Please provide a list of all documents the Secretary 
requires to make a determination under lGRA Section 20(b).
    Answer. Section 20 of IGRA generally prohibits gaming activities on 
lands acquired in trust by the United States on behalf of a tribe after 
October 17, 1988, 25 U.S.C.  2719. However, Congress expressly 
provided several exceptions to the general prohibition. The 
Department's regulations at 25 C.F.R. Part 292 set forth the procedures 
for implementing Section 20 of IGRA.
    An applicant tribe must submit a written request for a Secretarial 
(Two-Part) Determination, 25 U.S.C.  2719(b)(l)(A) that contains:

   Documentation that the proposed gaming establishment will be 
        in the best interest of the tribe and its members (25 C.F .R.  
        292.17), and

   Documentation that the proposed gaming establishment will 
        not be detrimental to the surrounding community, including NEPA 
        compliance documentation (25 C.F.R.  292.18).

   The governor of the state in which the gaming activity is to 
        be conducted must provide written concurrence in the 
        Secretarial Determination (25 C.F.R.  292.22).

    An applicant tribe must submit a written request for a 
determination of eligibility to conduct gaming pursuant to 25 U.S.C.  
 2719(b)(1)(B)(i-iii) that contains:

   For settlement of a land claim, documentation that the land 
        was acquired pursuant to the settlement of a land claim (25 
        C.F.R.  292.5).

   For an initial reservation of a tribe acknowledged pursuant 
        to the federal acknowledgment process, documentation that the 
        tribe has been federally recognized; and has a reservation 
        proclamation, or a significant historical connection and a 
        modem connection to the land (25 C.F.R.  292.6).

   For the restoration of lands for a tribe that is restored to 
        federal recognition, documentation that the tribe was federally 
        recognized, terminated, and restored to federal recognition, 
        and the land qualifies as restored lands (25 C.F .R.   292.7-
        12).

    Question 2. Please list each instance the Department has approved 
gaming on lands acquired in trust by the Secretary for a tribe pursuant 
to Section 20(b) of the Indian Gaming Regulatory Act, including the 
name of the beneficiary Tribe, the date, and state in which the 
property is located.
    Answer. See Attachment I.

    Question 3. The Catawba Indian Nation is not the current owner of 
the property S. 790 would authorize the Secretary to place land into 
trust for the purposes of gaming. Has the Department ever taken a 
parcel in which a tribe did not have a recorded interest into trust 
pursuant to 25 C.F.R.  151.1 et seq. for gaming purposes?
    Answer. Yes.

    Question 3a. If yes, please provide a complete list, specifying the 
beneficiary tribe, the date, and the state in which the land was taken 
into trust.
    Answer. Tribes typically own the land in fee or exercise an option 
to purchase the land in fee before the government acquires it in trust. 
In some cases, tribes have agreements where the landowner, often the 
developer, transfers the land directly to the government to be held in 
trust for the tribe.

    Question 3b. Does Interior's land into trust process for gaming 
activities differ in the situation where a tribe actually owns a parcel 
in fee?
    Answer. No.

    Question 4. If S. 790 is enacted, what assurances will the 
Department, as trustee, provide the Nation to prevent or curb the 
subject property owner from leveraging S. 790 in order to sell it at a 
drastically increased price?
    Answer. The Department understands that the Nation has a binding 
option agreement to purchase the subject property at an already 
established price.
                                 ______
                                 
 Attachment I--Applications Approved Pursuant to Section 20(b) of the 
  Indian Gaming Regulatory Act Following Its Enactment on October 17, 
                      1988 (25 U.S.C.  2719(b)).
 office of indian gaming u.s. department of the interior september 11, 
                                  2019

    25 U.S.C. 2719 (b)(l)(A): Secretarial Determination (Two Part 
Determination)

------------------------------------------------------------------------
                                                                 Date
            Tribe                  City, County & State        Approved
------------------------------------------------------------------------
Forest County Potawatomi       Milwaukee, Milwaukee County,   07/10/1990
 Community (Governor            Wisconsin
 concurrence 7/24/1990)
Confederated Tribes of Siletz  Salem, Marion County, Oregon   11/06/1992
 Indians (Governor non-
 concurrence 11/20/92)
Sault Ste. Marie Tribe of       Detroit, Wayne County,        08/18/1994
 Chippewa Indians (Governor     Michigan
 non-concurrence 9/7/1994)
Kalispel Indian Community       Airway Heights, Spokane       08/19/1997
 (Governor concurrence 6/26/    County, Washington
 1998)
Saint Regis Mohawk Tribe        Monticello, Sullivan          04/06/2000
 (Governor concurrence York 2/  County, New York
 18/2007)(land not acquired
 in trust)
Keweenaw Bay Indian Community   Chocolay Township,            05/09/2000
 (Governor's concurrence        Marquette
 County, Michigan 11/7/2000)
Lac Courte Oreilles Band, Red   Hudson, St. Croix County,     02/20/2001
 Cliff Band & Sokaogon          Wisconsin
 Chippewa Community (Governor
 non-concurrence 5/14/2001)
Jena Band of Choctaw Indians    Logansport, DeSoto Parish,    12/24/2003
 (Governor gave no written
 non- Louisiana concurrence)
Fort Mojave Indian Tribe        Needles, San Bernardino       02/29/2008
 (Governor concurrence 11120/   County, California
 2008)
Northern Cheyenne Tribe         Big Horn County, Montana      10/28/2008
 (Governor concurrence 7/30/
 2009)
Enterprise Rancheria of Maidu   Yuba County, California       09/01/2011
 Indians (Governor
 concurrence 8/30/2012)
North Fork Rancheria of Mono    Madera County, California     09/01/2011
 Indians (Governor
 concurrence 8/30/2012)
Keweenaw Bay Indian Community   Negaunee Township,            12/20/2011
 (Governor non-concurrence 6/   Marquette County, Michigan
 18/2013)
Kaw Nation (Governor            Kay County, Oklahoma          05/17/2013
 concurrence 5/23/2012)
Menominee Indian Tribe          Kenosha, Kenosha County,      08/23/2013
 (Governor non-concurrence 1/   Wisconsin
 23/2015)
Spokane Tribe of the Spokane    Spokane County, Washington    06/15/2015
 Reservation (Governor
 concurrence 6/8/20 16)
Shawnee Tribe (Governor         Texas County, Oklahoma        01/19/2017
 concurrence 3/3/2017)
------------------------------------------------------------------------


         25 U.S.C. 2719 (b)(1)(B)(i): Settlement of a land claim
------------------------------------------------------------------------
                                                                 Date
            Tribe                  City, County & State        Approved
------------------------------------------------------------------------
Seneca Nation of Indians       Niagara Falls, Niagara         11/29/2002
                                County, New York
Tohono O'odham Nation          Glendale, Maricopa County,     07/23/2014
                                Arizona 07/23/2010 Remand:
------------------------------------------------------------------------


  25 U.S.C. 2719 (b)(1)(B)(ii): Initial reservation of an Indian tribe
 acknowledged by the Secretary under the federal acknowledgment process
------------------------------------------------------------------------
                                                                 Date
            Tribe                  City, County & State        Approved
------------------------------------------------------------------------
Mohegan Indian Tribe           New London, Montville          09/28/1995
                                County, Connecticut
Nottawaseppi Huron Band of     Battle Creek, Calhoun          07/31/2002
 Potawatomi 25 U.S.C. 2719      County, Michigan
 (b)(1)(B)(ii):
Match-E-Be-N ash-She-Wish      Wayland Township, Allegan      02/27/2004
 Band (Gun Lake Tribe) of       County, Michigan
 Pottawatomi Indians
Snoqualmie Tribe               Snoqualmie, King County,       01/13/2006
                                Washington
Cowlitz Indian Tribe           Clark County, Washington       12/17/2010
                                                             Remand: 04/
                                                                 22/2013
Mashpee Wampanoag Tribe        Bristol and Barnstable         09/18/2015
                                Counties, Massachusetts
------------------------------------------------------------------------


    25 U.S.C. 2719 (b)(1)(B)(iii): Restored lands for a tribe that is
                     restored to federal recognition
------------------------------------------------------------------------
                                                                 Date
            Tribe                  City, County & State        Approved
------------------------------------------------------------------------
Confederated Tribes of the     Grand Ronde, Polk County,      03/05/1990
 Grand Ronde Community          Oregon
Coquille Indian Tribe          North Bend, Coos County        06/22/1994
                                Oregon
Confederated Tribes of Siletz  Lincoln City, Lincoln          12/13/1994
 Indians                        County, Oregon
Coquille Indian Tribe          Coos Bay, Coos County,         02/01/1995
                                Oregon
Confederated Tribes of Coos,   ``Hatch Tract,'' Lane          01/28/1998
 Lower Umpqua & Siuslaw         County, Oregon
 Indians
Little River Band of Ottawa    Manistee County, Michigan      09/24/1998
 Indians Manistee,
Little Traverse Bay Bands of   Petoskey, Emmett County,       08/27/1999
 Odawa Indians                  Michigan
Paskenta Band of Nomlaki       Corning, Tehema County,        11/30/2000
 Indians                        California
Lytton Rancheria               San Pablo, Contra Costa        01/18/2001
                                County, California
Pokagon Band of Potawatomi     New Buffalo, Berrien County,   01/19/2001
 Indians                        Michigan
United Auburn Indian           Placer County, California      02/05/2002
 Community
Ponca Tribe of Indians         Crofton, Knox County,          12/20/2002
                                Nebraska
Little Traverse Bay Bands of   Petoskey, Emmett County,       07/18/2003
 Odawa Indians                  Michigan
Elk Valley Rancheria           Del Norte County, California   01/04/2008
Mechoopda Indian Tribe of      Butte County, California 03/   01/24/2014
 Chico Rancheria                14/2008 Remand:
Federated Indians of Graton    Rohnert Park, Sonoma County,   04/18/2008
 Rancheria                      California
Habematolel Porno of Upper     Upper Lake, Lake County,       09/08/2008
 Lake                           California
lone Band of Miwok Indians     Amador County, California      05/24/2012
Cloverdale Rancheria of Pomo   Sonoma County, California      04/29/2016
 Indians of California
Pokagon Band of Potawatomi     South Bend, St. Joseph         11/17/2016
 Indians, Michigan and          County, Indiana
 Indiana
Wilton Rancheria               Sacramento County,             01/19/2017
                                California
------------------------------------------------------------------------

                                  [all]