    [House Hearing, 118 Congress]
    [From the U.S. Government Publishing Office]

                            H.R. 1208 AND H.R. 6180
    =======================================================================

                              LEGISLATIVE HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS

                                     OF THE

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                            Wednesday, June 26, 2024

                                   __________

                               Serial No. 118-131

                                   __________

           Printed for the use of the Committee on Natural Resources

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

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

                                  __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    56-170 PDF                  WASHINGTON : 2025

    -----------------------------------------------------------------------------------

                         COMMITTEE ON NATURAL RESOURCES

                         BRUCE WESTERMAN, AR, Chairman
                        DOUG LAMBORN, CO, Vice Chairman
                      RAUL M. GRIJALVA, AZ, Ranking Member

    Doug Lamborn, CO			Grace F. Napolitano, CA
    Robert J. Wittman, VA			Gregorio Kilili Camacho Sablan,
    Tom McClintock, CA			    CNMI
    Paul Gosar, AZ				Jared Huffman, CA
    Garret Graves, LA			Ruben Gallego, AZ
    Aumua Amata C. Radewagen, AS		Joe Neguse, CO
    Doug LaMalfa, CA			Mike Levin, CA
    Daniel Webster, FL			Katie Porter, CA
    Jenniffer Gonzalez-Colon, PR		Teresa Leger Fernandez, NM
    Russ Fulcher, ID			Melanie A. Stansbury, NM
    Pete Stauber, MN			Mary Sattler Peltola, AK
    John R. Curtis, UT			Alexandria Ocasio-Cortez, NY
    Tom Tiffany, WI				Kevin Mullin, CA
    Jerry Carl, AL				Val T. Hoyle, OR
    Matt Rosendale, MT			Sydney Kamlager-Dove, CA
    Lauren Boebert, CO			Seth Magaziner, RI
    Cliff Bentz, OR				Nydia M. Velazquez, NY
    Jen Kiggans, VA				Ed Case, HI
    Jim Moylan, GU				Debbie Dingell, MI
    Wesley P. Hunt, TX			Susie Lee, NV
    Mike Collins, GA
    Anna Paulina Luna, FL
    John Duarte, CA
    Harriet M. Hageman, WY

                        Vivian Moeglein, Staff Director
                          Tom Connally, Chief Counsel
                     Lora Snyder, Democratic Staff Director
                       http://naturalresources.house.gov

                                     ------

                   SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS

                         HARRIET M. HAGEMAN, WY, Chair

                    JENNIFFER GONZALEZ-COLON, PR, Vice Chair

                   TERESA LEGER FERNANDEZ, NM, Ranking Member

    Aumua Amata C. Radewagen, AS         Gregorio Kilili Camacho Sablan,
    Doug LaMalfa, CA                         CNMI
    Jenniffer Gonzalez-Colon, PR         Ruben Gallego, AZ
    Jerry Carl, AL                       Nydia M. Velazquez, NY
    Jim Moylan, GU                       Ed Case, HI
    Bruce Westerman, AR, ex officio      Raul M. Grijalva, AZ, ex officio

                                  ----------

                                   CONTENTS

                                  ----------
                                                                       Page

    Hearing Memo.....................................................     v
    Hearing held on Wednesday, June 26, 2024.........................     1

    Statement of Members:

        Hageman, Hon. Harriet M., a Representative in Congress from
          the State of Wyoming.......................................     2
        Leger Fernandez, Hon. Teresa, a Representative in Congress
          from the State of New Mexico...............................     3
        Westerman, Hon. Bruce, a Representative in Congress from the
          State of Arkansas..........................................     4

        Panel I:

        Carl, Hon. Jerry, a Representative in Congress from the State
          of Alabama.................................................     6
        Cole, Hon. Tom, a Representative in Congress from the State
          of Oklahoma................................................    11

    Statement of Witnesses:

        Panel II:

        Isom-Clause, Kathryn, Deputy Assistant Secretary for Indian
          Affairs, U.S. Department of the Interior, Washington, DC...     7
            Prepared statement of....................................     8
            Questions submitted for the record.......................    10
        Pierite, Hon. Marshall, Chairman, Tunica-Biloxi Tribe of
          Louisiana, Marksville, Louisiana...........................    13
            Prepared statement of....................................    14
            Supplemental testimony submitted for the record..........    16
            Questions submitted for the record.......................    20
        Bryan, Hon. Stephanie, Tribal Chair, Poarch Creek Indians,
          Atmore, Alabama............................................    22
            Prepared statement of....................................    23
            Supplemental testimony submitted for the record..........    32
            Questions submitted for the record.......................    33
        Rabbitt, Hon. David, District 2 Supervisor, Sonoma County
          Board of Supervisors, Sonoma, California...................    35
            Prepared statement of....................................    37
            Questions submitted for the record.......................    42

    Additional Materials Submitted for the Record:

        Submissions for the Record by Representative Westerman

            Advisory Council on Historic Preservation, Letter to
              National Indian Gaming Commission......................    58
            Coalition of Large Tribes, Letter to Senate and the
              Committee..............................................    60
            Creek Nation East of the Mississippi, Letter to Alabama
              Historical Commission..................................    62
            Muscogee (Creek) Nation, Letter to the Committee.........    65
            Robb & Ross, Letter to the Committee.....................    71
            United Indian Nations of Oklahoma, Resolution No. 2024-02    73
            United States Department of the Interior, Memo to
              Assistant Secretary, Indian Affairs....................    75

        Submissions for the Record by Representative Grijalva

            USET Sovereignty Protection Fund, Statement for the
              Record.................................................    76
        Submissions for the Record by Representative Leger Fernandez

            Bureau of Indian Affairs 25 CFR Part 151, Land
              Acquisitions...........................................    56
            Indian Gaming Regulatory Act.............................    56

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    To:        House Committee on Natural Resources Republican Members

    From:     Indian and Insular Affairs Subcommittee staff, Ken
            Degenfelder (Ken.Degenfelder@mail.house.gov), Jocelyn Broman
            (Jocelyn.Broman @mail.house.gov), and Kirstin Liddell
            (Kirstin.Liddell@mail.house.gov) x6-9725

    Date:     Wednesday, June 26, 2024

    Subject:   Legislative Hearing on two bills: H.R. 1208 and H.R. 6180
    ________________________________________________________________________
            _______

        The Subcommittee on Indian and Insular Affairs will hold a
    legislative hearing on two bills: H.R. 1208 (Rep. Cole), To amend the
    Act of June 18, 1934, to reaffirm the authority of the Secretary of the
    Interior to take land into trust for Indian Tribes, and for other
    purposes; and H.R. 6180 (Rep. Carl), ``Poarch Band of Creek Indians
    Lands Act'' on Wednesday, June 26, 2024, at 10:15 a.m. in 1324
    Longworth House Office Building.

        Member offices are requested to notify Haig Kadian (Haig.Kadian
    @mail.house.gov) by 4:30 p.m. on Tuesday, June 25, 2024, if their
    member intends to participate in the hearing.
    I. KEY MESSAGES

         Pursuant to the 2009 Supreme Court decision in Carcieri v.
                Salazar, the Secretary of the Interior (Secretary) is only
                authorized to place land into trust for federally
                recognized tribes that can demonstrate that they were
                ``under federal jurisdiction'' when the Indian
                Reorganization Act (IRA) became law in 1934.

         H.R. 1208 would amend the IRA to grant the Secretary the
                ability to place land into trust for the benefit of any
                federally recognized tribe.

         H.R. 6180 would treat the Poarch Band of Creek Indians as
                covered by the IRA and reaffirm any lands previously taken
                into trust for their benefit by the Secretary.

         The Secretary's ability to take land into trust removes
                land from local control, placing it under federal and
                tribal control. Land taken into trust within a community
                has implications for taxation, zoning, and other local or
                state laws regarding property.

         Changing the impact of Carcieri v. Salazar also has
                implications for Indian gaming development.

    II. WITNESSES

         Ms. Kathryn Isom-Clause, Deputy Assistant Secretary for
                Indian Affairs, U.S. Department of the Interior,
                Washington, DC. [H.R. 1208 and H.R. 6180]

         The Hon. Marshall Pierite, Chairman, Tunica-Biloxi Tribe
                of Louisiana, Marksville, LA [H.R. 1208]

         The Hon. Stephanie Bryan, Tribal Chair, Poarch Creek
                Indians, Atmore, AL [H.R. 6180]

         The Hon. David Rabbitt, District 2 Supervisor, Sonoma
                County Board of Supervisors, Sonoma, CA [H.R. 1208 and H.R.
                6180]

    III. BACKGROUND

    H.R. 1208 (Rep. Cole), To amend the Act of June 18, 1934, to reaffirm
            the authority of the Secretary of the Interior to take land
            into trust for Indian Tribes, and for other purposes.

        H.R. 1208 would amend the IRA \1\ and grant the Secretary the
    ability to place land into trust for the benefit of any federally
    recognized tribe, not just those considered ``under federal
    jurisdiction'' when the IRA became law on June 18, 1934. This would
    reverse the 2009 Supreme Court decision Carcieri v. Salazar.\2\ Similar
    legislation has been introduced in the past seven Congresses, and the
    past ten democratic President's budget requests have included proposed
    legislative language to accomplish the same goal.\3\
    ---------------------------------------------------------------------------
        \1\ 48 Stat. 984.
        \2\ Carcieri v. Salazar, 555 U.S. 379 (2009).
        \3\ Included in FY12-FY17 President's budget request and again in
    FY22-FY25.
    ---------------------------------------------------------------------------
    Land into Trust Authority

        Section 5 of the IRA \4\ authorizes the Secretary to take land into
    trust for the benefit of an Indian tribe ``in his discretion.'' The IRA
    was enacted as a remedy to the allotment policies exemplified by the
    Dawes Act,\5\ which resulted in a reduction of Indian land and
    continued poverty and poor conditions on reservations, as detailed in
    the 1928 Meriam Report.\6\ Land held in trust for individual Indians
    and federally recognized tribes is generally immune from state and
    local jurisdiction and taxation. Depending on the location of the land
    and the date it was put in trust, a tribe may be able to operate a
    casino on land held in trust pursuant to the Indian Gaming Regulatory
    Act (IGRA).\7\
    ---------------------------------------------------------------------------
        \4\ 48 Stat. 985.
        \5\ Act of February 8, 1887, Ch. 119, 24 Stat. 388.
        \6\ Meriam Report. 1928. https://www.uaf.edu/tribal/academics/112/
    unit-2/indianreorganization act1934.php.
        \7\ 25 U.S.C. 2701 et seq.
    ---------------------------------------------------------------------------
        Currently, there are approximately 56 million surface acres and 59
    million acres of subsurface minerals estates held in trust by the
    United States for American Indians, Alaska Natives and for federally
    recognized tribes.\8\ Lands can be taken into trust through mandatory
    or discretionary acquisitions. A mandatory acquisition involves
    Congress, or a court order, mandating the Secretary take specific land
    into trust for the benefit of a tribe. Discretionary trust acquisitions
    involve the Secretary using the authority granted to them under the IRA
    to take land into trust on behalf of the tribe.\9\
    ---------------------------------------------------------------------------
        \8\ ``About Us'' Bureau of Indian Affairs. https://www.bia.gov/
    about-us.
        \9\ CRS. Tribal Lands: An Overview. October 21, 2021. https://
    crsreports.congress.gov/product/pdf/IF/IF11944.
    ---------------------------------------------------------------------------
        The Bureau of Indian Affairs (BIA) has issued regulations outlining
    the Secretary's process to take land into trust for individual Indians
    or federally recognized tribes.\10\ Applications are often seen as
    procedural because they are generally approved irrespective of whether
    taking the land into trust would have local, state, or federal tax and
    governmental impacts.\11\ There is currently no standard for removing
    land from trust if a judicial decision deems the application's approval
    unlawful.\12\
    ---------------------------------------------------------------------------
        \10\ 25 CFR Part 151. https://www.ecfr.gov/current/title-25/part-
    151.
        \11\ SCIA Hearing. Carcieri: Bringing Certainty to Trust Land
    Acquisitions. November 2013. See the Late Senator Feinstein`s Statement
    referencing Butte County residents voting against a casino only for DOI
    to approve the land-into-trust application for a casino. https://
    www.govinfo.gov/content/pkg/CHRG-113shrg87133/html/CHRG-
    113shrg87133.htm.
        \12\ 25 CFR 151. https://www.ecfr.gov/current/title-25/part-151.
    ---------------------------------------------------------------------------
    The Carcieri v. Salazar Decision and Effects

        The Carcieri v. Salazar Supreme Court decision provided a limit on
    the secretarial power to take land into trust. Resolving a lawsuit
    filed by the Governor of Rhode Island, a 2009 Supreme Court decision
    held that the trust land provisions of the IRA may only benefit tribes
    that were ``under federal jurisdiction'' on June 18, 1934, the date of
    the Act's enactment.\13\ These are generally tribes with reservations
    whose lands were allotted under 19th-century laws. Following allotment,
    millions of acres of land left Indian ownership. A key goal of Congress
    in enacting the IRA was to remedy the land loss by Indians in tribes in
    existence in 1934.\14\
    ---------------------------------------------------------------------------
        \13\ 555 U.S. 379.
        \14\ 25 US 5103.
    ---------------------------------------------------------------------------
        The actual impact on all tribes since the decision is unknown for
    two reasons. First, since 2009, the Department of the Interior (DOI)
    has not divulged a list of tribes that were or were not under federal
    jurisdiction in 1934. Tribes applying to have land placed into trust
    through the BIA's process generally have to prove that they were under
    federal jurisdiction in 1934, often defending their history,
    membership, and even the tribe's existence in their land-to-trust
    applications.
        Second, during the Obama Administration, the DOI Solicitor issued
    an ``M-Opinion'' interpreting the definition of ``under federal
    jurisdiction'' to continue the acquisition of lands for tribes
    recognized after 1934. This controversial decision by the Obama
    Administration has allowed the Secretary to continue taking lands into
    trust for federally recognized tribes but it has also led to ambiguity
    and lawsuits.\15\
    ---------------------------------------------------------------------------
        \15\ U.S. Department of the Interior. ``The Meaning of `Under
    Federal Jurisdiction' for Purposes of the Indian Reorganization Act.''
    March 2014. https://www.doi.gov/sites/doi.open gov.ibmcloud.com/files/
    uploads/M-37029.pdf.
    ---------------------------------------------------------------------------
        For example, one land into trust application from the Mashpee
    Wampanoag Tribe of Massachusetts for its ``initial reservation'' caused
    three lawsuits and three different secretarial decisions across three
    different presidential administrations, because the tribe was
    recognized in 2007. Local residents disagreed with the 2015 land into
    trust decision, as well as plans for a subsequent 400,000-square foot
    class III gaming-resort complex, and challenged the decision in federal
    court.\16\ They argued, pursuant to Carcieri v. Salazar, that the
    Secretary did not have authority to take the land into trust since the
    Mashpee tribe was recognized after the IRA's enactment date.\17\ A
    Massachusetts district court ruled for the residents; then the
    Secretary issued a new decision in 2018 stating that the Secretary
    could not take the land into trust. The Mashpee tribe then challenged
    the 2018 secretarial decision, and a D.C. district court ruled in favor
    of the tribe, resulting in another 2021 secretarial decision declaring
    the Mashpee tribe under federal jurisdiction in 1934.\18\ The 2021
    secretarial decision was challenged in court, with a Massachusetts
    district court this time rejecting the resident's challenge and siding
    with the argument based on Carcieri v. Salazar, citing evidence of
    Mashpee children attending the Carlise Indian School under the federal
    assimilation policy, thus proving the tribe was under federal
    jurisdiction before 1934.\19\ This merry-go-round of litigation took
    years to complete and ended at the same conclusion as the original 2015
    secretarial decision to take the land into trust for the Mashpee.
    ---------------------------------------------------------------------------
        \16\ Littlefield et al v. Department of the Interior, U.S. District
    Court-District of Massachusetts, Civil Action No. 16-10184-WGY,
    Memorandum and Order, July 28, 2016. https://massgaming.com/wp-content/
    uploads/Littlefield-et-al-vs-US-Department-of-Interior.pdf.
        \17\ Id.
        \18\ DOI fact sheet. Determination that the Secretary has Authority
    to Take Land in Trust for the Mashpee Wampanoag Tribe. https://
    www.bia.gov/sites/default/files/dup/assets/as-ia/oig/gaming_decisions/
    508%20Compliant%202021.12.22%20Mashpee%20Decision%20Fact%20Sheet
    %20and%20QA.pdf.
        \19\ Department of Justice. Office of Public Affairs. ``Justice
    Department's Successful Defense of Lands in Trust Case Will Preserve
    Land in Massachusetts for the Mashpee Wampanoag Tribe.'' April 2024.
    https://www.justice.gov/opa/blog/justice-departments-successful-
    defense-lands-trust-case-will-preserve-land-massachusetts.
    ---------------------------------------------------------------------------
    Local Concerns Regarding Future Land into Trust Decisions and Effect on
            Indian Gaming

        Some local and state governments have concerns with a ``fix'' to
    overturn the Carcieri v. Salazar decision. The National Association of
    Counties (NACo) has routinely requested that Congress address the
    Carcieri v. Salazar decision as part of a larger ``comprehensive
    examination'' centered on reform to the fee into trust land
    process.\20\ Land held in trust does not fall under state or local
    jurisdiction for law enforcement or taxation. Removing the land from
    state or local jurisdiction impacts counties, states, and other local
    stakeholders. Generally, these stakeholders are concerned they do not
    have enough involvement in the land-into-trust application process,
    even though it directly impacts their interests, and quick decision
    time frames make it challenging to be included in the process.\21\
    ---------------------------------------------------------------------------
        \20\ NACo. ``U.S. Bureau of Indian Affairs Unveils New Final Rule
    for Tribal Land-in-Trust Process.'' January 2024. https://www.naco.org/
    news/us-bureau-indian-affairs-unveils-new-final-rule-tribal-land-trust-
    process.
        \21\ NACo. ``U.S. Bureau of Indian Affairs Unveils New Final Rule
    for Tribal Land-in-Trust Process.'' January 2024. https://www.naco.org/
    news/us-bureau-indian-affairs-unveils-new-final-rule-tribal-land-trust-
    process.
    ---------------------------------------------------------------------------
        In December 2023, the BIA promulgated new land into trust
    acquisition regulations where the agency included a process to
    determine whether a tribe was ``under federal jurisdiction'' on June
    18, 1934, reflecting the Carcieri v. Salazar decision.\22\ During the
    rulemaking process, NACo submitted comments requesting the BIA take
    into consideration the opinions of state and county governments to
    avoid the ``controversy, conflict and costly litigation between tribes
    and state and county governments.'' \23\ However, the final rule
    published in December 2023 maintained the 30-day comment period for
    state and local stakeholders. Changes made in the final rule included:
    acknowledgment that the Secretary's policy is favorable towards taking
    land into trust for the benefit of tribes; a requirement that the BIA
    must issue a decision within 120 days of the application being
    submitted; and the acknowledgment of how to determine whether a tribe
    was ``under federal jurisdiction'' as ruled in Carcieri v. Salazar.\24\
    ---------------------------------------------------------------------------
        \22\ 25 CFR Sec. 151.4. https://www.ecfr.gov/current/title-25/
    chapter-I/subchapter-H/part-151.
        \23\ NACo. Comments Letter to Assistant Secretary Newland re-
    Proposed Rule--25 CFR Part 151 (Land Acquisition); Docket No. BIA-2022-
    0004. On file with IIA Staff.
        \24\ NACo. ``U.S. Bureau of Indian Affairs Unveils New Final Rule
    for Tribal Land-in-Trust Process.'' January 2024. https://www.naco.org/
    news/us-bureau-indian-affairs-unveils-new-final-rule-tribal-land-trust-
    process#::text=NACo%20also%20opposes%20administrative%20action,
    fee%20land%20into%20trust%20process.
    ---------------------------------------------------------------------------
        Another change involved the acquisition of land into trust outside
    of a tribe's land boundaries. Previously, there was a ``bungee cord''
    approach to land as the distance from it to a tribe's reservation
    grew--meaning the further from a tribe's preexisting reservation, the
    more scrutiny applied to the request. Under the final rule this
    approach is no longer taken into consideration. The Secretary now
    presumes that the tribe will benefit from the land being taken into
    trust.
        Any land into trust process changes also have implications for
    tribal gaming projects as new gaming projects can only be developed on
    certain lands as laid out by IGRA.\25\ Under IGRA, tribes can conduct
    gaming activities on ``Indian lands,'' which are defined as
    reservation, trust, or restricted-fee land. While IGRA prohibits
    gaming-related activities on lands taken into trust after October 17,
    1988, various circumstances allow a tribe to circumvent the
    prohibition.\26\
    ---------------------------------------------------------------------------
        \25\ IGRA, P.L. 100-497, 25 U.S.C. Sec. Sec. 2701-2721.
        \26\ Murray, Mariel. Indian Gaming Regulatory Act: Gaming on Indian
    Lands. CRS. https://www.crs.gov/reports/pdf/IF12527/IF12527.pdf.
    ---------------------------------------------------------------------------
        Tribal revenues from gaming support the overall well-being of their
    tribal community, as required by IGRA.\27\ In 2023, over 200 tribes
    owned, operated, or licensed more than 500 gaming businesses in 29
    states.\28\ On average, tribal gaming increases employment by 2.4
    percent and wages by 5.6 percent on tribal reservations.\29\ However,
    this is not the case for every tribe, and successful gaming operations
    are highly attributed to the overall support seen in the surrounding
    areas.
    ---------------------------------------------------------------------------
        \27\ 25 U.S.C. Sec. 2710.
        \28\ Murray, Mariel. Indian Gaming Regulatory Act: Gaming on Indian
    Lands. CRS. https://www.crs.gov/reports/pdf/IF12527/IF12527.pdf.
        \29\ Wheeler, Laurel. More than Chance: The Local Labor Market
    Effects of Tribal Gaming. Center for Indian Country Development.
    Federal Reserve Bank of Minneapolis. 2023. https://
    www.minneapolisfed.org/-/media/assets/papers/cicdwp/2023/cicd-wp-2023-
    02.pdf.
    ---------------------------------------------------------------------------
        H.R. 1208 aims to streamline the process of placing lands into
    trust for tribes that were federally recognized after 1934. This could
    impact areas with tribes that have gained federal recognition more
    recently, including but not limited to the impact of potential
    expansion of tribal gaming operations.

        Staff contact: Ken Degenfelder (Ken.Degenfelder@mail.house.gov) and
    Jocelyn Broman (Jocelyn.Broman@mail.house.gov), (x6-9725)
    H.R. 6180 (Rep. Carl), ``Poarch Band of Creek Indians Lands Act''

        H.R. 6180 would recognize the Poarch Band of Creek Indians as
    covered by the IRA and reaffirm any lands previously taken into trust
    for the tribe's benefit by the Secretary as trust land. Any pending
    challenges to land taken into trust would be invalid if based upon the
    argument that the tribe was not under federal jurisdiction in 1934.
        The Poarch Band of Creek Indians (Poarch Band) is located
    approximately 56 miles north of Mobile, Alabama. It is a segment of the
    original Creek Nation that resided in Alabama and Georgia. Following
    the War of 1812, the Creeks who supported the United States signed the
    Treaty of Fort Jackson, ceding their land in Alabama.\30\ In 1836, the
    federal government forcibly moved 15,000 Creeks to Oklahoma.\31\ The
    Creek Indians who remained in the vicinity of Poarch, Alabama, became
    known as the Poarch Band of Creek Indians, remaining a cohesive tribal
    group. It was not until August 11, 1984, that the BIA recognized them
    federally. After recognition, the Poarch Band had their lands in
    Alabama and Florida administratively placed into trust by the Secretary
    under Section 5 of the IRA.\32\
    ---------------------------------------------------------------------------
        \30\ House Report. Poarch Band of Creek Indians Land Reaffirmation
    Act. House of Representatives. H.R. 115-513. 2018. https://
    www.congress.gov/congressional-report/115th-congress/house-report/513/
    1?outputFormat=pdf.
        \31\ History Channel. Trail of Tears. September 26, 2023. https://
    www.history.com/topics/native-american-history/trail-of-tears.
        \32\ House Report. Poarch Band of Creek Indians Land Reaffirmation
    Act. House of Representatives. H.R. 115-513. 2018. https://
    www.congress.gov/congressional-report/115th-congress/house-report/513/
    1?outputFormat=pdf.
    ---------------------------------------------------------------------------
    Litigation regarding Land into Trust in Alabama

        As noted above, the Carcieri v. Salazar decision left some tribes
    in limbo regarding whether the Secretary was authorized to take land
    into trust for them. The Poarch Band is one of those tribes because it
    was recognized through the BIA's administrative process in 1984, nearly
    50 years after the enactment of the IRA, and the Secretary took land in
    Alabama and Florida into trust for the tribe prior to 2009.
        According to Poarch Band's testimony at a 2015 hearing, many of its
    lands were placed in trust prior to 2009 pursuant to the IRA, and these
    trust lands have been developed with the construction of buildings and
    businesses, including casinos.\33\ If a court were to decide these
    lands are not lawfully held in trust on the grounds the Poarch Band was
    recognized after 1934, the lands could lose their trust status,
    exposing the tribe to state taxation and civil regulation, which in
    turn could lead to the closure of tribal businesses and the dismantling
    of facilities. In addition, the tribe's casinos would become subject to
    Alabama State law, which could lead to the modification or closure of
    the gambling facilities that employ large numbers of people and
    generate revenues for the tribe's government.\34\ In 2016, the Poarch
    Band of Creek Indians prevailed in the U.S. 11th Circuit Court of
    Appeals, where a unanimous decision concluded that the tribe's
    reservation was protected under the IRA and could not be taxed by the
    state of Alabama.\35\ However, this decision does not necessarily
    prevent further litigation on future parcels of land the Secretary
    could take into trust for the tribe.
    ---------------------------------------------------------------------------
        \33\ Subcommittee on Indian, Insular, and Alaska Native Affairs
    Subcommittee. Testimony of Attorney General Lori Stinson. May 14, 2015.
    https://docs.house.gov/meetings/II/II24/20150514/103445/HHRG-114-II24-
    Wstate-StinsonL-20150514.pdf.
        \34\ Id.
        \35\ ``Poarch Creeks Win Ruling in Dispute Over Taxation of Trust
    Lands.'' July 2016. https://indianz.com/News/2016/07/12/poarch-creeks-
    win-ruling-in-dispute-over.asp.
    ---------------------------------------------------------------------------
        The Poarch Band currently operates three Class II casinos in
    Alabama.\36\ As noted above for H.R. 1208, local and state governments
    generally have concerns with ``fixes'' surrounding the Carcieri v.
    Salazar decision. However, H.R. 6180 has the support of multiple County
    Commissioners, Mayors, City Council Members, and state legislators in
    Alabama.\37\ Local support highlights the local effect of these
    decisions and the ability for tribes to gain support for land into
    trust decisions.
    ---------------------------------------------------------------------------
        \36\ The Poarch Band of Creek Indians Tribal Gaming Commission.
    https://pci-tgc.org/.
        \37\ Letter of Support from Alabama Legislators. September 2023. On
    File with IIA Staff.
    ---------------------------------------------------------------------------
        The Muscogee (Creek) Nation of Oklahoma (Muscogee) has previously
    testified before the House Committee on Natural Resources concerning a
    parcel of land taken into trust for the Poarch Band and used for a
    gambling facility. The Muscogee have stated that the area known as
    ``Hickory Ground'' is a sacred site for the tribe containing, or
    previously containing, the remains of Creek ancestors.\38\ The Muscogee
    filed a lawsuit in 2012 on this issue, most recently asking a federal
    appellate court to reinstate the lawsuit after being thrown out in
    2021.\39\
    ---------------------------------------------------------------------------
        \38\ House Report. Poarch Band of Creek Indians Land Reaffirmation
    Act. House of Representatives. H.R. 115-513. 2018. https://
    www.congress.gov/congressional-report/115th-congress/house-report/513/
    1?outputFormat=pdf.
        \39\ AP.'' Muscogee Nation Renews Lawsuit over Alabama Casino They
    Say Desecrated a Sacred Site.'' July 2023. https://apnews.com/article/
    muscogee-poarch-creek-lawsuit-graves-sacred-
    ef741fb801a47678a423379778e6c040.

        Staff contact: Ken Degenfelder (Ken.Degenfelder@mail.house.gov) and
    Jocelyn Broman (Jocelyn.Broman@mail.house.gov), (x6-9725)
    IV. MAJOR PROVISIONS & SECTION-BY-SECTION

    H.R. 1208 (Rep. Cole), To amend the Act of June 18, 1934, to reaffirm
            the authority of the Secretary of the Interior to take land
            into trust for Indian Tribes, and for other purposes.
    Section 1. Reaffirmation of Authority

        Amends the Indian Reorganization Act (25 U.S.C. 5129 et. seq.) to
    authorize the Secretary to take land into trust for any federally
    recognized tribe. This removes the need for a tribe to be ``under
    federal jurisdiction'' on June 18, 1934. The bill would further ratify
    any action taken by the Secretary to place land into trust for a
    federally recognized tribe and ensure that the decision cannot be
    challenged based on the Carcieri v. Salazar reasoning. Additionally, a
    provision is included to limit the impacts of this legislation to this
    subsection of the IRA only and that any statutory reference to the IRA
    is to be considered amended by this legislation.
    H.R. 6180 (Rep. Carl), ``Poarch Band of Creek Indians Lands Act''
    Section 2. Applicability of Indian Reorganization Act
        Under the Indian Reorganization Act (25 U.S.C. 5129 et. seq.), the
    Poarch Band of Creek Indians is deemed to be a federally recognized
    tribe while stating that any lands taken into trust by the Secretary
    for the tribe are to be ratified and confirmed. The bill has a
    retroactive effect, stating the effectiveness of the legislation will
    be as if it was in effect when the IRA was implemented on June 18,
    1934.
    V. CBO COST ESTIMATE

    H.R. 1208 (Rep. Cole), To amend the Act of June 18, 1934, to reaffirm
            the authority of the Secretary of the Interior to take land
            into trust for Indian Tribes, and for other purposes.

        CBO has not issued an estimate for H.R. 1208. However, CBO issued a
    cost estimate for a similar bill from the 113th Congress, S. 2188,
    stating the bill would not have a significant impact on the federal
    budget.\40\
    ---------------------------------------------------------------------------
        \40\ CBO. Cost Estimate for S. 2188. September 2014. https://
    www.cbo.gov/sites/default/files/113th-congress-2013-2014/costestimate/
    s21880.pdf.
    ---------------------------------------------------------------------------
    H.R. 6180 (Rep. Carl), ``Poarch Band of Creek Indians Lands Act''

        CBO has not issued an estimate for H.R. 6180.
    VI. ADMINISTRATION POSITION

    H.R. 1208 (Rep. Cole), To amend the Act of June 18, 1934, to reaffirm
            the authority of the Secretary of the Interior to take land
            into trust for Indian Tribes, and for other purposes.

        Unknown, however, the Biden Administration has supported similar
    legislative proposals, indicating support for overturning the Carcieri
    v. Salazar decision legislatively. Most recently, President Biden's FY
    2025 Budget for the Department of the Interior included similar
    language.\41\
    ---------------------------------------------------------------------------
        \41\ Department of the Interior FY 2025 Budget. Appendix. P. 661.
    https://www.whitehouse.gov/wp-content/uploads/2024/03/int_fy2025.pdf.
    ---------------------------------------------------------------------------
    H.R. 6180 (Rep. Carl), ``Poarch Band of Creek Indians Lands Act''

        Unknown.
    VII. EFFECT ON CURRENT LAW (RAMSEYER)

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    LEGISLATIVE HEARING ON H.R. 1208, TO AMEND THE ACT OF JUNE 18, 1934, TO
     REAFFIRM THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO TAKE LAND
    INTO TRUST FOR INDIAN TRIBES, AND FOR OTHER PURPOSES; AND H.R. 6180, TO
      REAFFIRM THE APPLICABILITY OF THE INDIAN REORGANIZATION ACT TO THE
     POARCHBAND OF CREEK INDIANS, AND FOR OTHER PURPOSES, ``POARCH BAND OF
                           CREEK INDIANS LANDS ACT''

                                  ----------

                            Wednesday, June 26, 2024

                         U.S. House of Representatives

                   Subcommittee on Indian and Insular Affairs

                         Committee on Natural Resources

                                 Washington, DC

                                  ----------

        The Subcommittee met, pursuant to notice, at 10:18 a.m. in
    Room 1324, Longworth House Office Building, Hon. Harriet M.
    Hageman [Chairwoman of the Subcommittee] presiding.
        Present: Representatives Hageman, Radewagen, Gonzalez-
    Colon, Carl, Westerman; and Leger Fernandez.
        Also present: Representative Cole.

        Ms. Hageman. The Subcommittee on Indian and Insular Affairs
    will come to order.
        Without objection, the Chair is authorized to declare a
    recess of the Subcommittee at any time.
        The Subcommittee is meeting today to hear testimony on two
    bills: H.R. 1208 and H.R. 6180.
        Under Committee Rule 4(f), any oral opening statements at
    hearings are limited to the Chairman and the Ranking Minority
    Member. I, therefore, ask unanimous consent that all other
    Members' opening statements be made part of the hearing record
    if they are submitted in accordance with Committee Rule 3(o).
        Without objection, so ordered.
        I ask unanimous consent that the gentleman from Oklahoma,
    Mr. Cole; and the gentlewoman from Minnesota, Ms. McCollum, be
    allowed to sit and participate in today's hearing.
        Without objection, so ordered.
        I will now recognize myself for an opening statement.

     STATEMENT OF THE HON. HARRIET M. HAGEMAN, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF WYOMING

        Ms. Hageman. Today, the Subcommittee is meeting to consider
    two bills. These two bills center on the issue raised in the
    2009 Supreme Court decision Carcieri v. Salazar. In that
    decision, the Supreme Court ruled that the Secretary of the
    Interior, or Secretary, is only authorized to place land into
    trust for federally recognized tribes that can show that they
    were under ``Federal jurisdiction'' when the Indian
    Reorganization Act, or IRA, became law in 1934.
        First, we have H.R. 1208, introduced by Congressman Cole,
    which would amend the Act of June 18, 1934, the Indian
    Reorganization Act, to grant the Secretary the ability to place
    lands into trust for the benefit of any federally recognized
    tribe. This legislation would essentially resolve the decision
    of Carcieri v. Salazar, removing the precursor of ``being under
    Federal jurisdiction'' when the IRA became law on June 18,
    1934.
        The second bill on the docket is H.R. 6180, introduced by
    Congressman Carl, which would treat the Poarch Band of Creek
    Indians as covered by the IRA, and reaffirm any lands
    previously taken into trust for their benefit by the Secretary.
        The Poarch Band of Creek Indians currently reside roughly
    56 miles north of Mobile, Alabama. A segment of the original
    Creek Nation, the Poarch Band received Federal recognition in
    August 1984 through the BIA's administrative process. After
    recognition, the Secretary placed land into trust for the
    benefit of the Poarch Band under the IRA. This was, of course,
    prior to the Carcieri v. Salazar decision, which has left the
    Poarch Band in limbo as a tribe recognized after 1934 with land
    in trust status.
        The Poarch Band has overcome time-consuming and costly
    litigation. In 2016, the U.S. 11th Circuit Court of Appeals
    ruled that the Tribe's reservation was protected under the IRA.
    However, this decision does not protect the Poarch Band from
    further litigation on any future parcels of land taken into
    trust by the Secretary for their benefit.
        As this Subcommittee has seen, the ability to have land
    placed into trust is a top priority for many tribes and garners
    wide support across the board. Yet, there are impacts to local
    towns, cities, counties, and states that should be weighed by
    the Department of the Interior when placing land into trust.
        When the Secretary places land into trust, it is removed
    from local control and falls under Federal and tribal control.
    This change often has implications for taxation, zoning, and
    other local or state laws regarding property. As seen with the
    Poarch Band, these implications can lead to litigation, which
    is often time-consuming and costly for all of the parties
    involved.
        I am hopeful that conversations such as the one we will
    have today will be a catalyst for a long-term solution across
    the board. I want to take the time to thank our witnesses for
    being here today, and I look forward to a robust conversation.
        The Chair now recognizes the Ranking Minority Member for
    her statement.

    STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REPRESENTATIVE
                IN CONGRESS FROM THE STATE OF NEW MEXICO

        Ms. Leger Fernandez. Thank you, Madam Chairwoman, and thank
    you for holding this hearing. And you can see the interest. We
    have standing room only. And it is because it is such an
    important issue.
        On December 2, 2021, I went to the Floor with this very
    same bill as Chair of the Subcommittee on Indigenous Peoples.
    And it was important to raise then, as it has been important to
    raise every time we re-introduce this bill since that fateful
    Supreme Court decision. That bill passed overwhelmingly, and I
    look forward to us moving this bill, as well, through this
    Congress, because it is such a bipartisan effort to address
    this 2009 Supreme Court ruling in Carcieri.
        In Carcieri, as we have heard, the Supreme Court decided,
    the end of the IRA, the Secretary could take land into trust
    only for those tribes that were under Federal jurisdiction in
    1934. That decision was harmful. It was disrespectful to
    tribes. It essentially said that if you are not federally
    recognized, it didn't matter how long you existed, but if we
    hadn't done our homework and made all the mistakes that we made
    over the years, then you didn't get to re-establish your
    homelands.
        The ability to take land into trust is essential for tribes
    to provide housing, economic development opportunities,
    governmental services, and to protect tribal lands and cultural
    resources.
        The Carcieri ruling upended 75 years of Federal Indian
    policy and administrative practices. It created uncertainty.
    Because of Carcieri, tribes have had to defend themselves in
    court, as we have just heard the Poarch Creek Band has had to
    do. DOI has to provide time-consuming and often unnecessary
    reviews of a tribe's jurisdictional status, and these are
    exactly the kinds of unnecessary and costly steps we should
    address, and that is what H.R. 1208 does.
        I want to thank both Representatives Cole and McCollum for
    their leadership on H.R. 1208 and for their years of leadership
    on this. I am an original co-sponsor of the bill. Their
    bipartisan work to correct the misguided Carcieri ruling
    demonstrates how Democrats and Republicans can work together on
    this Subcommittee for Indian Country.
        Mr. Cole's bill would simply restore the Secretary of the
    Interior's authority to take land into trust for all tribes,
    regardless of their date of Federal recognition.
        Let's be clear. H.R. 1208 is separate from Indian gaming
    law, and does not alter the process for placing land into trust
    for gaming. It does not take away state and local governments'
    input under existing Department of the Interior's land-into-
    trust policies. H.R. 1208 just makes sure there is parity and
    equality for all tribes so they can fully realize the benefits
    of sovereignty, including through acquisition of trust land.
    That means we would not have to enact individual bills to
    return land that the U.S. Government systemically removed from
    tribes, bills like Representative Carl's H.R. 6180, which
    reaffirms the trust status of the lands of the Poarch Band of
    Creek Indians in Alabama, Poarch Band of Creek Indians. I
    apologize for the inversion earlier.
        I believe that we need a clean Carcieri fix. In the 117th
    Congress, we had a hearing like this. We passed it out of the
    Floor, 302 to 127, just like we did in the 116th Congress.
    Congress has introduced legislation for Carcieri in every
    Congress since 2009. And I want to thank once again the
    Chairwoman and the Chair for allowing this hearing to go
    forward so that we can continue that tradition and finally get
    it over the finish line.
        H.R. 1208 isn't a quick fix, as some have said. Tribes,
    Congress, and the Department of the Interior have worked on it
    for over a decade. It is past time to do the right thing for
    Indian Country. It is our role in Congress to pass legislation
    to uphold our treaty obligations and trust responsibility to
    tribes. That is how we promote tribal self-determination and
    self-governance.
        Chairwoman Bryan, I truly appreciated your written
    testimony, where you said we receive blessings and blessings we
    give back. And I think that is so essential to how we look at
    what we are doing here today. I hope we can put politics aside
    and move this bill through the Committee swiftly and to the
    Floor so we do not need individual bills.
        With that, Madam Chair, I yield back.
        Ms. Hageman. Thank you. The Chair now recognizes Chairman
    Westerman for an opening statement.

      STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF ARKANSAS

        Mr. Westerman. Thank you, Madam Chair, and thank you to the
    witnesses for being here today.
        And as the Subcommittee Chair and the Ranking Member
    stated, we are here to look at two different bills, really two
    different approaches that would amend the Indian Reorganization
    Act to address the 2009 Supreme Court decision Carcieri v.
    Salazar. And there is tremendous interest in this, and I think
    it is appropriate that we have a hearing.
        And if you look at the way this hearing is structured,
    there are two pathways: one bill that would do a broad Carcieri
    fix, and another bill that would do kind of a more singled-out
    approach. And going forward, one way would kind of relieve
    Congress from having to deal with it in the future; the other
    way would be individual fixes going forward. So, I think it is
    good that we have this hearing to bring out differences in the
    way to address Carcieri, to hear the concerns, and to figure
    out what is best for our country going forward and for all the
    tribes involved.
        H.R. 1208, sponsored by Representative Cole, would amend
    the Indian Reorganization Act to clarify that the Secretary of
    the Interior has discretionary authority to place land into
    trust for any federally recognized tribe. Currently, a tribe
    must be determined to have been under Federal jurisdiction on
    June 18, 1934 for the Secretary to take land into trust through
    the agency's administrative process.
        H.R. 6180, sponsored by Representative Carl, would also
    amend the Indian Reorganization Act to confirm the Secretary's
    discretionary authority to place land into trust for the Poarch
    Band of Creek Indians, both for land already in trust and
    future parcels that the Tribe could request the Secretary to
    take into trust.
        Tribes place land into trust for many purposes, including
    for tribal housing, economic development projects, and cultural
    and ecological conservation. The trust status gives tribes
    confidence that lands will not be transferred without Federal
    action. This means tribal homelands that anchor tribal
    histories and stories remain a part of their future, as well as
    their past.
        This Committee has worked to pass various land-into-trust
    legislation on a consistent, bipartisan basis, recognizing that
    tribes know what benefits their tribal members best. However,
    tribal trust land can have implications for local and state
    taxation, zoning, and other laws regarding property. Broad
    consensus between tribal, state, and local stakeholders on
    those issues and on those actions are crucial. It not only
    preserves support for placing land into trust, but also
    benefits any further development or use of the land.
        We have seen many examples of local communities benefiting
    from tribal development of trust lands, diversifying economies
    and often providing jobs. We have also seen instances where
    tribes and local stakeholders are not on the same page,
    resulting in costly and lengthy litigation. While consensus
    cannot always be reached, it is vitally important that we
    attempt to find the best way forward for everyone. This
    includes hearing from multiple perspectives on this issue and
    how all stakeholders would be affected if either of these bills
    became law.
        Congress has both plenary power over Federal Indian policy,
    as well as the innate authority to define how we delegate power
    to administrative agencies. Ultimately, Congress can change
    policies and procedures if we think it is in the nation's best
    interest.
        Again, I want to thank the witnesses for being here to
    provide your expertise and testimony on these bills and on this
    important topic.
        I yield back.

        Ms. Hageman. Thank you, Chairman Westerman.
        The votes have just been called. I am going to go ahead and
    introduce our witnesses, and then we will adjourn for a short
    period of time to allow us to go vote, and then we will come
    back and continue with the hearing. I am sorry for the
    disruption, but we have two different vote series today, so we
    have to have one of them this morning.
        Very quickly, I now want to introduce the witnesses for our
    panel.
        Ms. Kathryn Isom-Clause, the Deputy Assistant Secretary for
    Indian Affairs, U.S. Department of the Interior in Washington,
    DC; the Honorable Marshall Pierite, Chairman, Tunica-Biloxi
    Tribe of Louisiana, Marksville, Louisiana; and the Chair now
    recognizes Mr. Carl for 1 minute to introduce the witness from
    his district.
        Mr. Carl. Thank you, Madam Chairwoman. It is going to be a
    confusing day, I can tell already.
        [Laughter.]
        Mr. Carl. I am so pleased to introduce Chairwoman Bryan.
        It is truly an honor to have you here today. I haven't had
    a chance to speak to you yet. Hopefully, you will hang around a
    little while.
        Your leadership both on the Tribal Council and as a Tribe
    CEO demonstrates your dedication to improving the lives of the
    tribal citizens and their families. Your efforts benefit not
    only your community, but also contribute significantly to the
    well-being and the prosperity of the state of Alabama. And we
    appreciate that, we truly do.
        We have worked on so many things together, I feel like we
    are brother and sister.
        Your leadership ensures that the voices of Indian Country
    are heard, and that necessary means are taken to safeguard
    Native-owned lands and uphold tribal rights. Your presence here
    to support this important bill highlights the Tribe's
    commitment to economic growth and prosperity for both the
    Poarch Nation and for all the Nations.
        Thank you for the Tribe's tireless effort and dedication to
    make a positive impact on our state economy and lives of the
    residents.
        I think that is it. Thank you for being here.
        Ms. Hageman. Thank you, Mr. Carl.
        Our final witness of the day is the Honorable David
    Rabbitt, District 2 Supervisor, Sonoma County Board of
    Supervisors, Sonoma, California.
        We are going to go ahead and take our recess now, and when
    we come back we will have Mr. Carl introduce his bill, and then
    we will go directly to the witness statements. Thank you.
        The Committee is in recess until we finish our voting,
    which will probably be in a half an hour, I believe. Thank you.
        [Recess.]
        Ms. Hageman. The hearing of the Subcommittee on Indian and
    Insular Affairs will come back into session, and the Chair now
    recognizes Mr. Carl from Alabama for 5 minutes to speak on his
    legislation.

    STATEMENT OF THE HON. JERRY CARL, A REPRESENTATIVE IN CONGRESS
                       FROM THE STATE OF ALABAMA

        Mr. Carl. Thank you, Madam Chairwoman.
        My bill is pretty simple. The Poarch Band of Creek Indians
    Land Act is a bipartisan, bicameral effort aimed to supporting
    the Poarch Creek Band of Creek Indians, allowing them to
    exercise their sovereignty for the benefit of future
    generations.
        This Act is not just about legitimizing, it is about
    enabling the Tribe to provide essential government services
    effective to the citizens. By clarifying and reaffirming the
    Tribe's rights under the Indian Reorganization Act, IRA, this
    bill will provide stability and a clear path forward for their
    community development.
        The Tribe, a federally recognized entity based in Atmore,
    Alabama, with over 2,700 citizens, has limited trust lands,
    hindering the communities growth. This legislation ensures that
    the IRA applies to the Tribe, enhances their ability to improve
    essential government services, and treating them on par with
    other federally recognized tribes.
        This bill is not only about supporting the Tribe, but it is
    also about the potential to boost Alabama economy by generating
    new revenue and creating thousands of jobs. The Poarch Band
    Creek Indian Land Act aims at reaffirming the Tribe's long-
    standing trust land and brings parties under the IRA.
        Since 2009, the Tribe has faced constant litigation over
    the trust land, stalled critical developments in housing,
    health care, and essential services. This legislation will
    ensure that the Tribe is treated equal and with other federally
    recognized tribes, allowing them to better provide for their
    community.
        The widespread support for this bill at both the local and
    Federal level underscores its importance. Local governments,
    including Elmore County Commission, Escambia County Commission,
    Montgomery County Commission, and others have rallied behind
    this bill, highlighting the collaboration and spirit that has
    unified backing, driving it forwards. This month the Senate
    received a hearing on this revision of this bill, sponsored by
    Senator Katie Britt, which was a positive response, further
    demonstrating the bill's broad appeal and significance.
        With that, Madam Chair, I return my time.

        Ms. Hageman. Thank you, Mr. Carl. We will now turn towards
    witness testimony.
        Let me remind the witnesses that under Committee Rules,
    they must limit their oral statements to 5 minutes. But your
    entire statements will appear in the hearing record.
        To begin your testimony, please press the ``talk'' button
    on the microphone.
        And we use timing lights. When you begin, the light will
    turn green. When you have 1 minute left, the light will turn
    yellow. And at the end of 5 minutes, the light will turn red,
    and I will ask you to please complete your statement.
        I will allow all witnesses on the panel to testify before
    Member questioning.
        The Chair now recognizes Ms. Kathryn Isom-Clause for 5
    minutes.

     STATEMENT OF KATHRYN ISOM-CLAUSE, DEPUTY ASSISTANT SECRETARY
         FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR,
                             WASHINGTON, DC

        Ms. Isom-Clause. Thank you. Good morning Chair Hageman,
    Ranking Member Leger Fernandez, and members of the
    Subcommittee. My name is Kathryn Isom-Clause, and I am Taos
    Pueblo. I serve as the Deputy Assistant Secretary for Policy
    and Economic Development at Indian Affairs at the Department of
    the Interior. Thank you for the opportunity to present
    testimony on two bills before the Subcommittee today.
        Restoring tribal homelands is one of the Administration's
    highest priorities. This Administration has repeatedly stressed
    the importance of and need for a Carcieri fix. Since the Fiscal
    Year 2022 budget request, the President has proposed a sensible
    fix to treat all tribes equally in exercising the fundamental
    responsibility of placing land into trust for tribes.
        The Carcieri v. Salazar decision upset the settled
    expectations of both the Department and Indian Country, and led
    to confusion about the scope of the Secretary's authority to
    acquire land in trust for all federally recognized tribes. As
    many tribal leaders have noted, the Carcieri decision is
    contrary to existing congressional policy and subjects
    federally recognized tribes to unequal treatment under Federal
    law.
        Since the Carcieri decision, the Department must examine
    whether each tribe seeking to have land acquired in trust under
    the Indian Reorganization Act, or IRA, was under Federal
    jurisdiction in 1934. This analysis is done on a tribe-by-tribe
    basis, even for those tribes whose jurisdictional status is
    unquestioned. This analysis is time-consuming and costly for
    tribes and the Department. The Carcieri decision makes it
    likely that the Department will face costly and complex
    litigation over whether applicant tribes were under Federal
    jurisdiction in 1934. Overall, it has made the Department's
    consideration of fee-to-trust applications more complex, and
    created additional burdens.
        H.R. 6180 would address the impacts that the Carcieri
    decision has had on the Poarch Band of Creek Indians by
    ensuring that the Tribe has the ability to restore and protect
    their tribal homelands under the IRA.
        H.R. 1208 would be a universal legislative solution to the
    Carcieri decision for all tribes. The language is identical to
    the proposal contained in the President's budget request for
    several years. This language would clarify Congress' intention
    in enacting the IRA: the acquisition of land into trust for all
    tribes.
        The Department supports H.R. 6180 and H.R. 1208. Tribal
    homelands are at the heart of tribal sovereignty, self-
    determination, and self-governance. The ability to restore and
    protect tribal homelands is an important part of our trust
    responsibility, and has been the policy of the United States
    for nearly a full century.
        The Department urges Congress to enact a legislative fix to
    the Carcieri decision for all tribes to eliminate the need for
    each tribe to seek separate legislation.
        Chair Hageman, Ranking Member Leger Fernandez, and members
    of the Subcommittee, thank you for the opportunity to provide
    the Department's views on these important bills, and I look
    forward to answering any questions you may have.

        [The prepared statement of Ms. Isom-Clause follows:]
     Prepared Statement of Kathryn Isom-Clause, Deputy Assistant Secretary
            for Policy and Economic Development for Indian Affairs,
                    United States Department of the Interior
                           on H.R. 1208 and H.R. 6180

        Good morning, Chair Hageman, Ranking Member Leger Fernandez, and
    members of the Subcommittee. My name is Kathryn Isom-Clause, and I am
    Taos Pueblo and the Deputy Assistant Secretary for Policy and Economic
    Development for Indian Affairs at the Department of the Interior
    (Department). Thank you for the opportunity to present testimony on
    H.R. 1208, ``To amend the Act of June 18, 1934, to reaffirm the
    authority of the Secretary of the Interior to take land into trust for
    Indian Tribes, and for other purposes,'' and H.R. 6180, ``To reaffirm
    the applicability of the Indian Reorganization Act to the Poarch Band
    of Creek Indians, and for other purposes.''
        Restoring Tribal homelands is one of this Administration's highest
    priorities. This Administration has repeatedly stressed the importance
    of and need for a Carcieri fix. Since the FY 2022 Budget Request, the
    President has proposed a sensible fix to treat all Tribes equally in
    exercising the fundamental responsibility of placing land into trust
    for Tribes.

        In Carcieri v. Salazar, the U.S. Supreme Court was faced with the
    question of whether the Department could acquire land in trust under
    section 5 of the Indian Reorganization Act (IRA) on behalf of the
    Narragansett Tribe of Rhode Island for a housing project. The Court's
    majority noted that section 5 permits the Secretary to acquire land in
    trust for federally recognized Tribes that were ``under Federal
    jurisdiction'' in 1934. It then determined that the Secretary was
    precluded from taking land into trust for the Narragansett Tribe, who
    had stipulated that it was not ``under Federal jurisdiction'' in 1934.

        The Carcieri decision upset the settled expectations of both the
    Department and Indian Country and led to confusion about the scope of
    the Secretary's authority to acquire land in trust for all federally
    recognized Tribes--including those Tribes that were federally
    recognized or restored after the enactment of the Indian Reorganization
    Act. As many Tribal leaders have noted, the Carcieri decision is
    contrary to existing congressional policy, and has the potential to
    subject federally recognized Tribes to unequal treatment under Federal
    law.

        Since the Carcieri decision, the Department must examine whether
    each Tribe seeking to have land acquired in trust under the Indian
    Reorganization Act was ``under Federal jurisdiction'' in 1934. This
    analysis is done on a Tribe-by-Tribe basis, even for those Tribes whose
    jurisdictional status is unquestioned. This analysis may be time-
    consuming and costly for Tribes and for the Department. Although the
    Department conducts extensive research into this analysis, if the
    Department decides to take land into trust and provides notice of its
    intent, the Carcieri decision makes it likely that the Department will
    face costly and complex litigation over whether applicant Tribes were
    under Federal jurisdiction in 1934. Overall, it has made the
    Department's consideration of fee-to-trust applications more complex
    and created an additional administrative burden for the Federal
    government and Tribes related to decisions taking land into trust.

        H.R. 6180 would address the impact that the Carcieri decision has
    had on the Poarch Band of Creek Indians by deeming that the Band shall
    be considered as having been under Federal jurisdiction as of June 18,
    1934, for the purposes of the IRA. The bill would also congressionally
    reaffirm previous decisions by the Secretary to take land into trust
    for the Poarch Band of Creek Indians under IRA authorities.

        H.R. 1208 would be a universal legislative solution to the Carcieri
    decision for all Tribes. The language is identical to the proposal
    contained in the President's Budget Request for fiscal year 2025. This
    language would clarify Congress's intention in enacting the IRA--the
    acquisition of land into trust for Tribes to secure a land base on
    which to live and, through self-determination, to develop in their best
    interest.

        The Department supports H.R. 6180 and H.R. 1208. Tribal homelands
    are at the heart of Tribal sovereignty, self-determination, and self-
    governance. The power to acquire lands in trust is an important tool
    for the United States to effectuate its long-standing policy of
    fostering Tribal self-determination. Congress has worked to foster
    self-determination for all Tribes and did not intend to limit this
    essential tool to only one class of Tribes. The Department has
    consistently expressed strong support for a universal legislative
    solution to the Carcieri decision for all Tribes. The President's
    budgets for fiscal years 2022 through 2025 have proposed a simple and
    clean fix to the IRA to ensure the Secretary has the authority to take
    land into trust for all Tribes without the need for a complex review of
    whether a Tribe was ``under Federal jurisdiction'' in 1934. The
    Department urges Congress to enact a legislative fix to the Carcieri
    decision for all Tribes to eliminate the need for each Tribe to seek
    separate legislation.

    Conclusion

        Chair Hageman, Ranking Member Leger Fernandez, and members of the
    Subcommittee, thank you for the opportunity to provide the Department's
    views on these important bills. I look forward to answering any
    questions that you may have.

                                     ______

     Questions Submitted for the Record to Ms. Kathryn Isom-Clause, Deputy
            Assistant Secretary for Policy and Economic Development
              for Indian Affairs, U.S. Department of the Interior

    Ms. Isom-Clause did not submit responses to the Committee by the
    appropriate deadline for inclusion in the printed record.

                Questions Submitted by Representative Westerman

        Question 1. Has the Department of the Interior denied a land into
    trust application in the past 5 years?

        1a) If so, which tribe(s) were denied?

        1b) If so, for what reason?

        Question 2. Has the Department not issued a positive Carcieri
    determination in response to any fee to trust application or any other
    requests submitted by a tribe?

        2a) If so, for which tribe(s)?

        2b) Has the Secretary ever waived the 25 CFR Part 151 regulations
    pursuant to 25 CFR 1.2?

        2c) If so, for which tribe(s) and when has the Secretary waived the
    25 CFR Part 151 regulations for a fee to trust application?

        Question 3. Has the Department been able to act more quickly on
    land-into-trust applications since the Department finalized 25 CFR Part
    151 regulations in December 2023?

        3a) If yes, please provide the average number of days it takes the
    Department to review land-to-trust applications pre- and post-
    rulemaking.

        3b) Additionally, please provide the longest length of time it took
    for a single application to go through the process pre- and post-
    rulemaking.

        Question 4. Prior to the Department finalizing the new 25 CFR Part
    151 regulations, several tribes requested a requirement that the
    Department consult with nearby tribes when an applicant tribe is
    seeking the acquisition of trust lands in another tribe's ancestral
    territory. This request was not implemented.

        4a) Considering the importance this Administration has placed on
    consultation with tribes, why did the Department not include this level
    of consultation?

        Question 5. The new 25 CFR Part 151.11 in the regulations governing
    trust acquisitions located outside and non-contiguous to an existing
    reservation eliminates the previous requirement that the Secretary
    increase scrutiny of a trust application as the distance from a tribe's
    reservation increases. The reasoning for the elimination explained in
    the preamble of the regulations was that the Department no longer
    needed to give greater weight to the concerns of State and local
    governments now that the Department is going to presume that any land
    acquisition benefits an applicant tribe.

        5a) Can you explain whether any tribes specifically asked for the
    Department to eliminate this increased or heightened scrutiny for
    applications as the distance from an existing reservation increases?

        5b) If so, can you tell which tribe(s) asked for this requirement
    to be eliminated?

        Question 6. The new 25 CFR Part 151 regulations governing trust
    acquisitions located outside and non-contiguous to an existing
    reservation do not require that the applicant tribe show any ancestral
    ties to the proposed trust land.

        6a) Can you confirm that the new regulations do not require an
    applicant tribe have any ancestral ties to the proposed trust land?

        6b) Why does the Department believe that tribes should be able to
    acquire trust lands that are outside of their ancestral territories?

        6c) Can you also confirm whether the new regulations allow a tribe
    to acquire lands outside of the state boundaries in which the tribe is
    currently located?

        If this is allowed, why does the Department believe that a tribe
    located in one state should be able to acquire trust lands in another
    state?

        Question 7. Some tribes have reached contacted the committee
    expressing concern that the new 25 CFR Part 151 regulations fail to
    include a requirement that the Department consult with nearby tribes
    when an applicant tribe is seeking to acquire trust lands in another
    tribe's ancestral territory. The preamble to the new regulations
    acknowledges that several tribes made this request to include a
    consultation requirement with potentially impacted tribes, but the
    preamble does not give a clear reason as to why the Department failed
    to include this consultation requirement requested by several tribes.

        7a) Given that this Administration seems to constantly talk about
    how it consults with tribes more than any other Administration, why did
    the Department not include a consultation requirement with nearby
    tribes who may be impacted by another tribe's application to acquire
    trust lands?

        7b) Under these new regulations, would tribes in Oklahoma be able
    to obtain trust lands in states like North Carolina, South Carolina,
    Georgia and Florida, where some of those tribes were originally
    removed?

        7c) If so, would the Department be required to notify and consult
    with federally recognized tribes in those states?

                                     ______

        Ms. Hageman. Thank you very much. I am going to go a little
    bit out of order, and I am going to recognize Mr. Cole from
    Oklahoma for 5 minutes to speak on his legislation.

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

        Mr. Cole. Thank you very much, Madam Chairwoman and Ranking
    Member Leger Fernandez. It is a great pleasure for me to be
    back in this hearing room, where I spent a lot of years earlier
    in my career. I want to thank the Subcommittee for all its hard
    work on behalf of Indian Country, and particularly today for
    holding this hearing on my legislation, H.R. 1208, which would
    amend the Indian Reorganization Act of 1934 and affirm the
    authority of the Secretary of the Interior to take land into
    trust for Indian tribes.
        As many of you know, I have been a champion on this issue
    for the past 15 years, since the Supreme Court's 2009 Carcieri
    v. Salazar decision. As an enrolled member of the Chickasaw
    Nation of Oklahoma, I cannot overstate the importance of tribal
    sovereignty and the relationships that members of tribes have
    with their land, their identity, and their culture.
        Unfortunately, many were forcibly removed to unknown areas
    after the Indian Removal Act, which often resulted in residing
    in lands that provided no opportunity to prosper. However,
    Trust Land does offer tribes the ability to expand economic
    development and provide for their people.
        Tribes use land in trust to build schools, housing, and
    health centers in their communities. In fact, in some rural
    areas, Tribal Nations are often the largest employers and
    health service providers in the community. That is certainly
    true in vast stretches of my district. Tribes also rely on
    their trust land to produce both renewable and conventional
    energy, as well as use the land for agriculture and production
    of various types. In addition, trust land allows tribes to
    provide essential government services like tribal police and
    courts.
        However, in 2009 the Supreme Court uprooted 70 years of
    precedent, and turned the entire notion of tribal sovereignty
    on its head when it ruled that the Indian Reorganization Act
    questioned the authority for the Secretary of the Interior to
    take land into trust because the Court interpreted the statute
    as only applying to the tribes under Federal recognition when
    the law was enacted in 1934.
        This decision created two different classes of Indian
    tribes: those that can have land into trust and those who
    cannot. This two-class system is detrimental to so many Native
    communities, as it excludes so many of them from exercising
    their legal right to act as a sovereign nation and deal
    directly with the United States on a government-to-government
    basis.
        This decision by the Court makes it harder for tribes to
    manage and expand their territory, as well as putting millions
    of dollars' worth of trust land in legal limbo. This is simply
    unacceptable.
        Congress is long overdue to correct the law as the Supreme
    Court interpreted it when the Court made the Carcieri decision.
    Without a legislative fix, tribes' financial resources will be
    drained and spent on litigation and disputes between tribes and
    state and local governments.
        However, those arguing against the legislative fix claim
    that this is all about gaming. Let me be clear: this is false.
    In fact, out of the 961 total pending fee-to-trust
    applications, only 26 are gaming applications; and out of the
    4,349 approved applications from 2009 to 2023, only 48 of them
    were for gaming purposes. That is 1.1 percent.
        Others claim that trust land is undermining states' tax
    base. Again, this is false. Trust land is like all other
    Federal pieces of land, like military bases or national parks
    that are not subject to state taxation. Impact aid and Payments
    in Lieu of Taxes address these shortfalls. In reality, trust
    land is only 8.75 percent of the total Federal land base.
        At the end of the day, there is no reason to oppose the
    Carcieri fix legislation. In fact, Chairman Westerman and
    Chairwoman Hageman, if Congress fails to act, the standard set
    forth in Carcieri v. Salazar will continue to undermine tribal
    sovereignty and devastate economic development in Native and
    non-Native communities. Resolving any ambiguity in the tribe's
    ability to put land into trust, no matter when they were
    federally recognized, is vital to protecting tribal interests
    and avoiding costly and protracted litigation.
        I truly believe this legislation, as well as H.R. 6180,
    introduced with my good friend from Alabama and fellow
    appropriator, Mr. Carl, are vital to preserving many Native
    American communities, and I appreciate the opportunity to
    testify in favor of both these bills.
        Thank you, Madam Chairwoman. I yield back.
        Ms. Hageman. Chairman Cole, thank you for being here today,
    and we appreciate your input and your insight into these
    important issues.
        The Chair will now recognize the Honorable Marshall Pierite
    for 5 minutes.

    STATEMENT OF THE HON. MARSHALL PIERITE, CHAIRMAN, TUNICA-BILOXI
               TRIBE OF LOUISIANA, MARKSVILLE, LOUISIANA

        Mr. Pierite. Thank you, everyone. Good morning, Chair
    Hageman, Ranking Member Leger Fernandez, and members of the
    Subcommittee. Thank you for the privilege and honor for me to
    testify today in support of H.R. 1208. I am Marshall Pierite,
    Chairman of the Tunica-Biloxi Tribe of Louisiana.
        The Supreme Court's ruling in Carcieri v. Salazar casts
    doubt on the sovereign control of tribal lands, and slowed the
    Federal Government's ability to place land into trust for the
    benefit of tribal governments. This not only harms the ability
    of tribes to provide for the welfare of their tribal citizens,
    but it also limits the ability of tribes to bring the benefits
    of their economic development activities to their non-tribal
    neighbors. Until Congress amends the Indian Reorganization Act
    in such a way as to correct the problems created by the
    Carcieri decision, the successes and benefits brought on by
    strong tribal governments will continue to be significantly
    diminished.
        After a long history of injustice, the Tunica-Biloxi Tribe
    and hundreds of other tribes across the country are utilizing
    their own resources to purchase land that has been stolen from
    them. But we don't seek to continue the cycle of mistrust,
    envy, and hard feelings. Instead, we have forged new, positive
    relationships with the local non-tribal communities that have
    grown up around us.
        The Tunica-Biloxi Tribe has created several economic
    development enterprises on our trust land. Because we do not
    have a tax base to supply the revenue necessary to provide
    governmental services to our people, we operate these
    businesses to generate revenue for our tribal government. Using
    this revenue, we protect and enhance the welfare and culture of
    our tribal citizens and their families. These tribal businesses
    also provide major benefits for our non-tribal neighbors, and
    revenues for our state and local governments in the region.
        Our modest tribal enterprises purchased over $10 million
    per year from local, non-tribal vendors, and supply wages in
    excess of $26 million per year to our mostly non-tribal
    employees. This payroll generates state and Federal employment
    taxes and increases the local sales and property tax base.
        In addition, we have donated over $7 million to local
    charities, and have contributed over $30 million to help the
    local parish government cover the costs associated with the
    additional demands placed on the community from the increased
    economic activity.
        When the Tribe began looking at gaming as a means for
    economic advancement in the early 1990s, unemployment rates in
    Avoyelles Parish were as high as 17 percent, almost twice the
    national average at the time. Overnight, we went from a
    surviving community to a thriving community. After our gaming
    facility opened in 1994, the unemployment rate in Avoyelles
    Parish has dropped to about the national average. Home prices
    increased, new roads were paved, schools improved, parish
    government services expanded, and hundreds of new businesses
    sprung up in central Louisiana.
        We in Indian Country are working hard to diversify our
    economies away from gaming and finding new enterprises that can
    provide the revenues we need to support our communities. We
    hope to create new manufacturing facilities, enter the software
    and service industries, and build new, clean energy projects.
    However, we first must repurchase the land that was stolen from
    us in order to have a place to build these new economic
    development projects.
        After 30 years of operation of our gaming facility, our
    neighbors and state and local government partners have come to
    realize that our success is a big contributor to their success.
    For the record, I would like to submit letters and
    proclamations from the state of Louisiana and several local
    area governments recognizing the benefit of our economic
    development activities to their own success and prosperity.
        The Supreme Court decision in Carcieri was a major step
    backward in the walk towards justice, as well as healing. The
    ruling confused both tribal governments and non-Indians alike,
    slowed economic growth and job creation, and continued to spawn
    legal challenges to the recovery of our ancestral homelands for
    the good of the Tribe, for the good of Indian children and
    generations yet to come, and for the good of our non-Indian
    neighbors and the entire nation.
        Congress should act to pass H.R. 1208 to amend the Indian
    Reorganization Act to conform to this original intended
    purpose. Thank you for your time and consideration and
    attention to this matter. Thank you.

        [The prepared statement of Mr. Pierite follows:]
     Prepared Statement of Marshall Pierite, Chairman, Tunica-Biloxi Tribe
                                  of Louisiana
                                  on H.R. 6180

        Chairman Hageman, Ranking Member Leger Fernandez, and distinguished
    members of this Subcommittee, thank you for the privilege and honor of
    inviting me to testify today. I am Marshall Pierite, Chairman of the
    Tunica-Biloxi Tribe of Louisiana.
        The U.S. Supreme Court's 2009 ruling in Carcieri v. Salazar has
    cast doubt on the sovereign control of tribal lands and slowed the
    federal government's ability to place land into trust for the benefit
    of tribal governments. This not only harms the ability of tribes to
    provide for the welfare of their citizens but it also hampers the
    ability of tribes to bring the benefits of their economic development
    activities to their non-Indian neighbors. Until Congress amends the
    Indian Reorganization Act in such a way as to correct the problems
    created by the Carcieri decision, the successes and benefits brought on
    by strong tribal governments will continue to be significantly
    diminished.
        Although the Senate failed to take up the measure, I was very
    pleased that the 117th Congress passed a ``Carcieri Fix'' bill authored
    by Rep McCollum and Rep. Cole by a vote of 302-127. I urge this
    Committee to move expeditiously to pass this bill and have the House of
    Representative send it once again to the Senate for their
    consideration.
        While I do not want to dwell on the sad history of injustice
    against tribes and Native Americans, it is important to recall this
    history to illuminate the justice and healing that tribal land
    reacquisition can engender. Every tribe has stories of loss, and every
    federally recognized tribe once held title to large amounts of land
    that has been stolen from them. Ours is merely one example.
        At the time of the Louisiana Purchase Treaty in 1803, the Tunica-
    Biloxi Tribe held title to well over 50 square miles of land. By 1980,
    however, the tribe controlled less than 200 acres. These lands were
    stolen in hundreds of small ways, but one example stands out.
        In 1841, Tunica Chief Melacon confronted a local landowner whose
    work crew was working to systematically move his fence posts onto
    Tunica land. As the Chief protested and began removing the fence posts
    the landowner shot Chief Melacon in the head in view of several other
    tribal citizens and non-Indians. The common view held at the time by
    non-Indians was that Native Americans were savages who did not farm
    their land ``properly'' and therefore had no right to keep it. As a
    result, the killer was thought to be within his rights and never stood
    trial.
        Against this history of injustice, the Tunica-Biloxi Tribe and
    hundreds of other tribes across the country are utilizing their own
    resources to purchase land that has been stolen from them. But, we do
    not wish to continue the cycle of mistrust, envy and hard feelings.
    Instead, we have forged new positive relationships with the local non-
    Indian communities that have grown up around us.
        Utilizing our status as a sovereign nation, the Tunica-Biloxi Tribe
    has created several economic development enterprises. Because we do not
    have a suitable tax base to supply the revenue necessary to provide
    governmental services to our people, we need these businesses to
    generate revenue for the tribal government so that we may protect and
    enhance the welfare and culture of our tribal citizens. These
    businesses also provide major benefits for our non-Indian neighbors and
    revenues for state and local governments in the region. For example,
    our tribal enterprises purchase over $10 million per year from local
    non-Indian vendors, and supply wages in excess of $26 million dollars
    per year to mostly non-Indian employees, resulting in state and federal
    employment taxes of over $2 million per year. In addition, we have
    donated over $7 million to local charities and have paid the local
    Parish government over $30 million to help cover the costs associated
    with the additional demands placed on the community from the increased
    economic activity.
        When the Tribe began looking at gaming as a means for economic
    advancement in the early 1990s, unemployment rates in Avoyelles Parish
    were as high as 17 percent--almost twice the national average at the
    time. Local governments struggled to provide even the most basic
    services, and it looked as if there was nothing on the horizon that
    might change the dismal forecast for the area.
        Today, I am proud to say that the Tunica-Biloxi Tribe employs over
    1,000 people--the vast majority of them non-Indian. After our gaming
    facility opened in 1994, the direct and indirect jobs created by the
    Tribe caused the unemployment rate in Avoyelles Parish to drop to about
    6 percent. Home prices increased, new roads were paved, schools
    improved, Parish government services expanded, and hundreds of new
    businesses sprung up in Central Louisiana. Of course, our tribal
    citizens who had previously suffered greatly from economic hardship
    were helped as well, but the full story is one of renewal for the
    entire region and all of our citizens and neighbors.
        30 years ago, prior to the opening of our gaming operation, the
    largest private employer in our area was a textile manufacturing
    facility. That facility, along with hundreds of others like it, closed
    when U.S. manufacturers found less expensive options overseas, leaving
    hundreds of people in Central Louisiana without work. The community was
    in great distress and there were no prospects on the horizon with
    potential to renew the local economy. Today, I am happy to say that the
    Tribe is working with local economic development organizations to
    reopen that facility to supply American-made textiles to tribal hotels
    and others who have a mandate to buy American-made goods. We will re-
    create those lost jobs and use this facility to launch new businesses
    and innovations.
        My tribe, and hundreds of other tribal governments across the
    country, are working hard to diversify our economies away from gaming
    and find new enterprises that can provide the revenues we need to
    support our communities. We hope to create new manufacturing
    facilities, enter the software and services industries, and build new
    clean energy projects. However, we must first repurchase the land that
    was stolen from us in order to have a place to build these new economic
    development projects.
        Further, in order to take advantage of the benefits of our
    sovereignty, this land must be added back under the federal trust
    status from which it was originally removed. Often, purchasing the
    tribe's original land is not an option. In some cases, this is because
    the tribe was forced to move a long way from their traditional
    homelands. In other cases, the current owners are simply not willing to
    sell, or the land is no longer suitable for the intended purpose due to
    other development, environmental damage, or any number of other
    reasons. Regardless of the location of the repurchased land, the
    inability of tribes to swiftly have these lands placed into trust by
    the U.S. Department of the Interior has dramatically decreased the
    ability of tribal governments to create new jobs for our own tribal
    citizens and our neighbors. We realize that we cannot fully recreate
    what was lost. We can strive, however, to create a better world and
    better lives for our children.
        In light of the complicated and often brutal history of
    relationships between tribes and their neighbors, the level of acrimony
    we often hear from non-Indians who are opposed to tribal economic
    development projects is not entirely surprising. What I hope all of us
    will come to recognize, however, is that tribes and their neighbors are
    in this together. I am hopeful that the lessons we are learning today
    will yield a new spirit of cooperation, and that non-Indians who are
    fearful of tribal economic development will come to realize that what
    is good for our tribal communities is good for them as well.
        After 30 years of operation of our gaming facility in Central
    Louisiana, our neighbors and state and local governmental partners have
    come to realize that our success is a big contributor to their success.
    To demonstrate this support, I would like to submit for the record
    letters and proclamations from the State of Louisiana, and several
    local area governments who recognize the benefit of our economic
    development activities to their own success and prosperity.
        The Supreme Court decision in Carcieri v. Salazar was a major step
    backward in the process of justice and healing. The ruling confused
    both tribal governments and non-Indians alike, slowed economic growth
    and job creation, and continues to spawn legal impediments to the
    repatriation of Indian homelands. For the good of tribes, for the good
    of Indian children and generations yet to come, and for the good of our
    non-Indian neighbors and the nation as a whole, Congress should act to
    pass H.R. 1208 to amend the Indian Reorganization Act to conform to its
    original intended purpose.

                                     *****

    The following documents were submitted as supplements to Mr. Pierite's
    testimony.

                           AVOYELLES PARISH POLICE JURY

                                 Marksville, LA

        To: The House Natural Resources Subcommittee on Indigenous People:

        On behalf of the Avoyelles Parish Police Jury, I am writing to
    share the profound, positive impact that tribal economic development
    has on our community. As a life-long resident of Avoyelles, I have
    observed first-hand how the initiatives by the Tunica-Biloxi Tribe of
    Louisiana have significantly contributed to the economic, social, and
    cultural vitality of our region.

        Economic development projects led by the Tribe, such as the Paragon
    Casino Resort, have become pillars of our local economy. Not only did
    it generate substantial revenue, but also create employment
    opportunities for hundreds of community members. Currently, the Paragon
    Casino Resort employs over 700 individuals, offering stable, well-
    paying jobs that support families and stimulate local economic
    activity. These jobs are crucial for many, providing a pathway to
    financial security and professional growth.

        The Tunica-Biloxi Tribe also exemplifies a strong commitment to
    social responsibility. Through generous monetary donations, the Tribe
    has significantly contributed to our critical infrastructure that
    benefits the entire parish.

        The Tribe's economic ventures serve as a driving force for broader
    regional development. The Paragon Casino Resort, for example, attracts
    visitors from across the state and beyond, boosting tourism and
    supporting local businesses. Hotels, restaurants, and retail
    establishments in the area benefit from the influx of visitors,
    creating a ripple effect that stimulates further economic growth and
    diversification.

        The long-term vision and strategic planning demonstrated by the
    Tunica-Biloxi Tribe will ensure that their economic development
    initiatives are sustainable and beneficial for future generations.
    Their approach not only addresses immediate needs but also lays the
    foundation for continued prosperity and community resilience.

        In summary, tribal economic development has a multifaceted and
    profoundly positive impact on our community. It drives economic growth,
    provides vital employment opportunities, supports public services,
    enriches our cultural landscape, and creates a spirit of collaboration
    and mutual benefit. The Tunica-Biloxi Tribe's dedication to economic
    and social progress serves as a model of how strategic development can
    uplift and transform a community.

        I am confident that the continued success of the Tribe's economic
    initiatives will lead to even greater benefits for our community, and I
    look forward to supporting and celebrating their efforts in the years
    to come.

                Best regards,

                                              Darrell G. Wiley,
                                                              President

                                     ______

                         MARKSVILLE CHAMBER OF COMMERCE

                                                      June 11, 2024

    House Natural Resources Subcommittee on Indigenous Peoples
    U.S. House of Representatives
    1324 Longworth House Office Building
    Washington, DC 20515

        Dear Chairman and Members of the Subcommittee:

        As President of the Marksville Chamber of Commerce, I am writing to
    express our strong support for the Carcieri Fix bill (H.R. 1208). This
    legislation is crucial for the sustained economic development and
    growth of tribal communities, and it holds significant positive
    implications for our broader community in Marksville and the
    surrounding regions.

        Chairman Pierite's upcoming testimony on June 26th is a pivotal
    moment for highlighting the far-reaching benefits that tribal economic
    initiatives, such as our local casino, bring to our community. The
    economic contributions of the tribal enterprises extend beyond the
    boundaries of tribal lands, creating jobs, fostering local business
    growth, and enhancing the quality of life for residents.

        The Marksville Chamber of Commerce has witnessed firsthand the
    transformative impact of tribal economic development. The casino has
    become a cornerstone of our local economy, providing employment
    opportunities for hundreds of individuals, including many non-tribal
    members. These jobs offer stable incomes, benefits, and professional
    growth opportunities, which are vital for the economic stability of our
    community.

        Additionally, the casino and other tribal enterprises contribute
    significantly to the local tax base. These contributions support public
    services such as education, healthcare, and infrastructure
    improvements, benefiting all residents of our region. The presence of
    the casino has also spurred the growth of ancillary businesses,
    including hotels, restaurants, and retail establishments, further
    diversifying and strengthening our local economy.

        In conclusion, the Marksville Chamber of Commerce fully supports
    Chairman Pierite's testimony and the passage of H.R. 1208. We urge the
    Subcommittee and Congress to recognize the substantial and positive
    impact that tribal economic development has on our community and to
    support the Carcieri Fix bill.

        Thank you for your attention to this critical matter.

                Sincerely,

                                               Melissa Goudeau,
                                                              President

                                     ______

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     ______

                            AVOYELLES PARISH SCHOOLS

                                 Marksville, LA

                                                      June 13, 2024

        To Whom It May Concern:

        I'm writing this letter in support of The Tunica-Biloxi Tribe of
    Louisiana. As a lifelong resident and active member of Avoyelles
    Parish, I have observed and benefited from the impact that the tribal
    economic development has on our community. They have significantly
    contributed to the economic, social, and cultural development of our
    region.

        Through the combination of both Tribal and Paragon Casino Resort,
    they have become the pillars of our local economy. This initiative
    generates a substantial amount of revenue and employment opportunities
    for hundreds of community members. Currently, the Paragon Casino Resort
    employs over 700 employees, offering stable, well-paying jobs that
    support families and stimulate the local economy.

        The Tunica-Biloxi Tribe also exemplifies a strong commitment to
    philanthropy and social responsibility. Beyond providing job
    opportunities, the Tribe and Paragon Casino have helped to fund many of
    our schools' activities such as providing a space for teachers to meet,
    offering recognition and prizes for teachers during Teachers'
    Appreciation Week, providing scholarships, funds for needed programs in
    the schools and assisting to purchase pieces of equipment for our
    athletic department. We are so grateful for all that the Tribe and
    Paragon Casino have supported the school system with.

        In summary, tribal economic development has a multifaceted and
    profoundly positive impact on our community. It drives economic growth,
    provides vital employment opportunities, and supports public services.
    I am confident that the continued success of the Tribe's economic
    initiatives will lead to even greater benefits for our community, and I
    look forward to supporting and celebrating their efforts in the years
    to come.

                Sincerely,

                                              Thelma J. Prater,
                                    Assistant Superintendent of Schools

                                     ______

       Questions Submitted for the Record to the Hon. Marshall Pierite,
                Chairman & CEO, Tunica-Biloxi Tribe of Louisiana

                Questions Submitted by Representative Westerman

        Question 1. Your written testimony discussed the complicated
    history tribal nations can have with their neighboring localities. You
    also mentioned how your tribe has received support from the state of
    Louisiana and several local governments recognizing the benefit of the
    economic development the tribe has brought to the area.

        1a) Can you expand on how your tribe was able to build and maintain
    these relationships?

        Answer. The Tunica-Biloxi Tribe has built strong working
    relationships with the state and local governments through many years
    of hard work to establish trust and an understanding of mutual respect.
    At every opportunity, we discuss and demonstrate how benefits to the
    Tribe result in benefits to our non-tribal neighbors. This has been a
    long journey which required tribal and non-tribal leaders to put aside
    the long history of injustice, forgive past wrongdoings and recognize
    the power of hope and healing.

        1b) How can Congress help to promote congenial relationships?

        Answer. Congress can do its part by protecting tribal governments
    from encroachment from state and local governments and recognizing the
    history of how tribes lost their land, while also extolling the virtues
    of tribal economic development for the benefits it brings to both
    tribal and non-tribal communities. The balance of power between tribes
    and their non-tribal neighbors has always been overwhelmingly skewed
    toward the non-tribal communities. Congress can provide the necessary
    backstop to appropriately balance these rights. Through this renewed
    justice, and the power of economic development, tribes can demonstrate
    mutual benefits which can then spawn a renewed and positive
    relationship. The good news is that we have seen this play out over the
    last 30+ years of tribal gaming. The old doubts and fears from the non-
    tribal community have proven to be largely unfounded and the benefits
    of tribal landownership overwhelmingly positive for everyone. Passing
    H.R. 1208 would help in providing a pathway to these more positive
    relationships.

        Question 2. Are there lands your tribe is currently seeking to have
    taken into trust?

        Answer. Yes. The Tunica-Biloxi Tribe is continually working to
    regain the land that was illegally taken from us. We do so primarily by
    buying land from willing sellers and then working to have that land
    placed into trust by the federal government.

        2a) If so, how long has this process taken and have you seen any
    opposition to these applications?

        Answer. The timeline for the land to trust process has varied over
    the years for numerous reasons--mostly due to backlogs at the
    Department that occur when political decisions are made by various
    administrations to change the process, increase scrutiny, or reduce or
    delay funding for the offices within the department charged with
    advising the Secretary on specific land to trust determinations. We are
    pleased that the backlog has been considerably decreased and
    applications are now being processed in a more timely manner. At points
    in our recent history, it has taken many years in the process to gain
    trust approval. The Department's new regulations are certain to further
    streamline the process.

        Question 3. Is there anything else you would like to add to your
    testimony on how the Department of the Interior's fee-to-trust process
    could be reformed to benefit tribes and state and local governments?

        Answer. It is important to note that when a tribe seeks to have the
    federal government take land into trust, the tribal government might or
    might not have immediate plans for the use of that land. Moreover, in
    much the same way that local governments operate, elected tribal
    governments might change their land use plans over time. Therefore, it
    should be recognized that the request from Mr. Rabbitt in his testimony
    to the Subcommittee on this point is largely unworkable. While it might
    be possible for tribal and non-tribal area governments to agree on a
    path forward for immediate land use planning, such agreements might not
    survive local or tribal elections and resulting changes in governing
    decisions. Land use negotiations between tribes and non-tribal
    governments, therefore, should not be used as a gateway for the federal
    government to make land to trust decisions that last in perpetuity. It
    is also important to note that when land was stolen from tribes
    (sometimes at the end of a gun barrel) tribes were not offered the same
    level of comment options as the current DOI regulations provide to
    local governments. That said, once justice is restored through tribal
    land re-acquisition, local and tribal governments can and do work
    together for their and mutual benefit.

        Question 4. The new 25 CFR Part 151 regulations governing lands
    into trust provide no geographic boundaries within which tribes can
    acquire trust lands, fails to include any requirement that a tribe have
    ancestral ties to the proposed trust land, eliminates the previous
    requirement that the Secretary use heightened scrutiny the further a
    tribe goes from its existing reservation to seek new trust lands, and
    failed to include a consultation requirement with nearby tribes for any
    new trust land acquisitions.

        4a) Given this and that Louisiana has 4 federally recognized
    tribes, does the Tunica-Biloxi Tribe support the portions of the new
    regulations that eliminate the heightened scrutiny for applications
    that seek to acquire lands far from a tribe's existing reservation?

        Answer. It is important to note that the land that was illegally
    taken from tribes is, in most cases, no longer accessible by tribes to
    be taken back into possession nor to be taken into trust. Much of what
    can be considered ``tribal homelands'' is now developed and might only
    be available for purchase in very small parcels if at all. So, in order
    for tribes to reestablish a meaningful land base, they must often look
    to areas that might not align to what was lost, say, in the 1800s or
    earlier. Moreover, federal policy has, over the last 200 years, made a
    complete mess of tribal lands. Tribes have not only had their land
    stolen, but they have also been moved by force in groups, and their
    citizens have been incentivized under false pretense to move
    individually, often hundreds of miles away from their traditional
    homelands. The use of the term ``ancestral homelands'' is also
    problematic as it does not provide a specific time frame for ancestry.
    Given that many tribal citizens were forced or coerced to leave their
    homes, do these ``new'' areas where they currently reside constitute
    ``ancestral homelands'' if they have now been there for 50 years, or
    100 years? What happens in another 50 years once these families have
    been in those locations for 150 years or more. When is an area
    considered ``ancestral?''

        4b) Would you want the Interior Secretary to be mandated to consult
    with you if any other tribe applies for trust lands within your
    ancestral territory in the State?

        Answer. Of course, the Department should and does take into account
    the concerns of other tribes and state and local governments--
    especially when taking land into trust apart from an existing
    reservation. Tribes and local governments are provided an opportunity
    to raise concerns in the trust process. Moreover, as taking land into
    trust is a ``major federal action'' other laws apply including the
    National Historic Preservation Act which provides rights in the process
    for tribes to protect their sacred places on and off current
    reservation land.

                                     ______

        Ms. Hageman. Thank you for your testimony. The Chair now
    recognizes the Honorable Stephanie Bryan for 5 minutes.

      STATEMENT OF THE HON. STEPHANIE BRYAN, TRIBAL CHAIR, POARCH
                     CREEK INDIANS, ATMORE, ALABAMA

        Ms. Bryan. Good morning Chair Hageman, Ranking Member Leger
    Fernandez, Chairman Cole, and members of the Subcommittee. My
    name is Stephanie Bryan, and I am honored to serve as the Chair
    and CEO for the Poarch Band of Creek Indians located in lower
    Alabama.
        We appreciate this opportunity to testify, but most
    importantly we thank Congressman Jerry Carl for introducing
    this bill. We also thank the counties and cities that border
    our trust lands for their partnership and support.
        The Poarch Band of Creek Indians has been a leading
    advocate to clarify that the Indian Reorganization Act applies
    to all federally recognized tribes. We offer our full support
    of Chairman Cole's bill, H.R. 1208, which would accomplish this
    goal. We will continue to work to pass a national fix, but our
    Tribe is taking a parallel approach by working with our
    Congressional Delegation to clarify that the IRA applies to our
    Tribe.
        For decades, Poarch leaders have balanced the desire to
    preserve our Tribe's history and culture with the need to
    rebuild our community and provide basic services to our
    citizens. Today, we are blessed to be able to provide our
    tribal citizens and neighbors with essential services that
    include police, fire protection, health care, elder care,
    education, and infrastructure.
        We have made careful decisions about how best to use our
    resources and property, but we have limited trust lands, and we
    can't meet the growing needs for housing and other basic
    services for our citizens. For example, in 2018 it became clear
    that we needed to expand our Boys and Girls Club. There was no
    more buildable trust land, and we were forced to fill ponds
    around the community center on existing trust lands, which
    added $1 million to our construction cost.
        We are not alone. Tribal governments nationwide have a
    shortage of usable trust land, and seek to acquire trust lands
    to serve their citizens.
        The Supreme Court's 2009 Carcieri decision upended the
    Interior Department's land-into-trust process. That decision
    placed a cloud of uncertainty over tribal trust lands, impeding
    investment and economic development in Indian Country. These
    lawsuits have cost American taxpayers a significant amount of
    money.
        The Interior Department and DOJ have had to defend not only
    our trust lands, but also the lands of other tribes. The Tribe
    alone has spent more than $10 million to defend ourselves from
    legal challenges attacking the status of our trust lands.
    Thankfully, every court reviewing these frivolous cases against
    us has upheld the status of our lands, which the Interior
    Department placed in trust decades ago. However, these lawsuits
    have taken a real toll, and that is why our Tribe is seeking a
    legislative solution that will provide us with much-needed
    certainty.
        The bill affirms that the IRA applies to our Tribe, and
    brings us into parity with other federally recognized tribes.
    This bill has strong support from the Alabama Congressional
    Delegation and the cities and counties that surround us. I
    respectfully ask the Full Committee to mark up H.R. 6180, and
    please pass this bill this year.
        On behalf of our Tribe, I am honored to speak to you today,
    and I am happy to answer any questions you may have.

        [The prepared statement of Ms. Bryan follows:]
         Prepared Statement of Stephanie Bryan, Chairwoman, Poarch Band
                                of Creek Indians
                                  on H.R. 6180

        Good afternoon, Chair Hageman, Ranking Member Leger Fernandez, and
    Members of the Subcommittee. My name is Stephanie Bryan, and I am
    honored to serve as the Chair and CEO of the Poarch Band of Creek
    Indians. Thank you for this opportunity to testify today about H.R.
    6180, the Poarch Band of Creek Indians Lands Act. On behalf of the
    Tribal Council, I extend our great thanks to Rep. Carl for introducing
    this bill.
    History of the Poarch Band of Creek Indians

        I want to begin by sharing some history about the Poarch Band of
    Creek Indians. ``The Poarch Band of Creeks of today originated in the
    aboriginal and historical Creek Nation.'' \1\ At the time of our
    Nation's founding, the Creek Confederacy governed an expansive
    territory. Creek lands--guaranteed in the Treaty of New York in 1790--
    covered most of modern-day Georgia and Alabama, as well as parts of
    Florida. That territory was reduced twice via treaty over the ensuing
    two decades, and then again as a result of the War of 1812, when the
    Creek Confederacy was divided between those who joined with the British
    and those who remained friendly to the United States. After the war,
    however, the United States continued to recognize land rights of Creeks
    who had allied with it. In 1814, the United States granted those Creeks
    the right to occupy individual reservations in Southern Alabama under
    the Treaty of Fort Jackson.\2\
    ---------------------------------------------------------------------------
        \1\ Memorandum from Deputy Assistant Secretary--Indian Affairs
    (Operations), U.S. Dep't of Interior, to Assistant Secretary--Indian
    Affairs, on Recommendation and Summary of Evidence for Proposed Finding
    for Federal Acknowledgement of the Poarch Band of Creeks of Alabama
    pursuant to 25 C.F.R. Sec. 83, at 3 (Dec. 29, 1983).
        \2\ 7 Stat. 120 (Aug. 9, 1814).
    ---------------------------------------------------------------------------
        Little time passed before the United States' policy toward the
    Creeks began to change. In 1817, Congress provided that fee simple
    patents to Creek reservation lands should be issued upon the death of
    the original reservation grantees. Moreover, in what came to be known
    as the Trail of Tears, the United States decided to pursue a policy of
    forced removal of the Creeks and other tribal nations in the South and
    Eastern United States. Thousands of Native children, women, and men
    died on these forced marches to the Indian Territory--which is now the
    state of Oklahoma. Our Tribe avoided this fate. Like other Indian
    nations located in the South and East today, we were able to do so only
    by fleeing into remote homelands.
        Specifically, our tribe found refuge and settled on the McGhee
    reserve, located now in the Community of Poarch, Alabama. A Creek
    leader, Lynn McGhee, had been granted a reserve pursuant to the 1814
    Treaty. Under the terms of the Treaty, McGhee and his descendants
    retained the right to the reserve as long as they occupied it and were
    to be ``protected by and subject to the laws of the United States.''
    \3\ This land was ``technically individually owned.'' \4\ ``[I]n
    practice,'' however, ``[the McGhee lands] were usable by the entire
    community'' that ``settled there'' during the removal era.\5\
    ---------------------------------------------------------------------------
        \3\ Id.
        \4\ U.S. Dep't of Interior, Office of Federal Acknowledgment,
    Technical Reports regarding the Poarch Band of Creeks of Atmore,
    Alabama, at 28-29 (1983).
        \5\ Id.
    ---------------------------------------------------------------------------
        Unlike other Creek reservations established in the wake of the War
    of 1812, the McGhee reserve was held in trust and never fee patented.
    As noted, in 1817 Congress passed a statute that generally removed
    Creek reservations from trust status. McGhee, however, had been unable
    to enter his claim for a reservation before the deadline set by the
    1814 Treaty of Fort Jackson because of a war injury. For this reason,
    Congress subsequently acted specifically on behalf of McGhee, granting
    him the right to select a reservation under the terms of the 1814
    Treaty after the deadline. In so doing, Congress opted not to subject
    the McGhee reserve to the 1817 Act.
        In the early 1900s, the Department of Justice confirmed the McGhee
    reserve's trust status. Specifically, in 1912, the federal government,
    acting in its role as trustee, sued a timber company for trespass on
    the McGhee reserve. This action was accompanied by a series of internal
    memoranda within the Department of Justice, which analyzed whether the
    land remained in trust and concluded that it did.\6\
    ---------------------------------------------------------------------------
        \6\ Letter from Attorney General McReynolds to Senator Joseph
    Johnson, at 6-7 (Apr. 23, 1913).
    ---------------------------------------------------------------------------
        Despite this confirmation of trust status, the Government Land
    Office improperly issued a fee patent to the McGhee heirs in 1924.
    However, because these fee grants were unlawful, they did not erode the
    protections owed to our Tribe. Later analysis by the Commissioner of
    Indian Affairs concluded that the descendants of McGhee ``who to this
    day occupy his reserve continue to be `protected by and subject to the
    laws of the United States.' '' \7\
    ---------------------------------------------------------------------------
        \7\ Memorandum from Morris Thompson, Commissioner of Indian
    Affairs, to Mr. Keep, Associate Solicitor, Indian Affairs on the
    Eligibility of the Poarch Creek Band Under the Indian Reorganization
    Act (Mar. 23, 1976).
    ---------------------------------------------------------------------------
        In 1984, after years of living in obscurity and abject poverty, the
    Reagan Administration reaffirmed the status of the Poarch Band of Creek
    Indians as a federally recognized Tribe. The United States acknowledged
    that Poarch has been an autonomous, distinct tribal community for
    centuries, that we have maintained governing authority over our tribal
    citizens, and that our citizens descend from a historical Indian Tribe.
    We remain based on the McGhee reserve, which was never
    disestablished.\8\
    ---------------------------------------------------------------------------
        \8\ History, Poarch Band of Creek Indians, https://pci-nsn.gov/our-
    story/history/ (last visited June 7, 2024).
    ---------------------------------------------------------------------------
        Our Tribe is also a successor to the pre-Removal Creek treaties and
    as such we have at all times since then enjoyed a treaty relationship
    with the United States. Our ancestors were part of the Creek Nation
    before the removal era. We were recognized by the United States as
    autonomous, and our ancestors signed the pre-removal Creek treaties as
    a subset of the Creek Confederacy.\9\ The Department of the Interior
    has accordingly recognized that we are a ``successor of the Creek
    Nation of Alabama prior to its removal.'' \10\
    ---------------------------------------------------------------------------
        \9\ Id.
        \10\ Final Determination for Federal Acknowledgment of the Poarch
    Band of Creeks, 49 Fed. Reg. 24083, 24083 (June 11, 1984).
    ---------------------------------------------------------------------------
        Acknowledgement as a federally recognized Indian Tribe was a
    turning point for our government. In 1984, we began working with the
    Interior Department to establish a small land base for our community.
    Using authority provided in the Indian Reorganization Act of 1934, the
    Tribe worked with Interior to place approximately 389 acres of fee
    lands into trust from 1985 to 1995. The majority of these trust lands
    (229.5 acres) were approved by Interior on April 18, 1985.\11\
    ---------------------------------------------------------------------------
        \11\ See Establishment of Poarch Band of Creek Indians Reservation
    (50 Fed. Reg. 15502 (April 18, 1985)), and Poarch Band of Creeks-
    Establishment of Reservation: Correction (50 Fed. Reg. 19813 (May 10,
    1985)).
    ---------------------------------------------------------------------------
        Over the past four decades, Poarch Creek leaders have balanced the
    preservation of our Tribe's history and culture with the need to
    rebuild our community. Today, we are blessed to be able to provide our
    tribal citizens and neighbors with essential services, including
    functioning infrastructure, police and fire protection, healthcare, and
    eldercare.
        The Tribe has developed positive working relationships with our
    neighboring counties of Elmore, Escambia, and Montgomery. We have
    engaged in dozens of MOUs and intergovernmental agreements with these
    and other local governments that have helped upgrade fire and rescue
    stations, conduct miles of road repairs and upgrades including lighting
    installations, provide resources to improve health care and education,
    and much more. We are also the first responders for 15 miles north and
    south of the Reservation on Interstate 65. These agreements and
    services far exceed revenue from any potential tax receipts these
    neighboring governments would receive if our lands remained in fee. As
    Alabama Natives and Alabama Neighbors, we are driven to give back to
    these communities by our belief that working together and giving back
    makes us all stronger, together. We are proud that our neighboring
    Counties, mayors, and state representatives have pledged their support
    for H.R. 6180, the Poarch Band of Creek Indians Parity Act. Attached to
    my written testimony is a letter of support from our neighboring local
    governments.
        We have been able to improve the economic condition of not only
    Poarch, Alabama, where we are headquartered, but also in other parts of
    the State. Our Tribe operates more than 40 companies that do work
    worldwide and generate 9,000 jobs. I am proud to say that we generate
    more than 4,000 jobs for families in Alabama. Beyond these enterprises,
    we also welcome people to visit our lands, especially the Magnolia
    Branch Wildlife Reserve, which welcomes 30,000 visitors annually. It is
    one of the prettiest places you can imagine to go fishing, tubing,
    horseback riding, and camping.
        We honor our blessings by giving back to local non-profits and
    community organizations. We donate nearly $8 million annually to local
    governments, educational institutions, health care systems, and other
    philanthropic causes. During the COVID-19 pandemic, we were able to
    give back to the State of Alabama with a $500,000 donation to the
    Alabama Department of Health for COVID-19 vaccine storage and
    administration. In fact, knowing how important protecting rural Alabama
    is to us, the State asked us to run clinics to vaccinate rural
    Alabamians.
        We have made careful decisions about how to best use our resources
    and property. However, we have a limited land base, and at this point,
    we are no longer able to meet the growing housing and many other needs
    of our nearly 2,900 citizens. For example, when it became clear we
    needed to expand our Boys and Girls club in 2018, we were forced to
    fill in the ponds around our community center at a cost of more than $1
    million because there was no more buildable trust land.
        As our population ages, the Tribal Council has prioritized
    providing the best healthcare and eldercare available. We have an
    Assisted Living Facility (ALF) but will soon need a nursing home. We do
    not have the current land available to provide this service, and the
    passage of H.R. 6180 will allow us to make this dream of a nursing home
    a reality. As our community grows, enhancing our governing land base is
    a not only a need, it is a must.
        We are not alone. Tribal governments nationwide have a shortage of
    usable land, and many--like us--have made land restoration a priority.
    The Indian Reorganization Act: Restoration of the Tribal Government
            Land Base

        Congress has repeatedly examined the history of tribal government
    land tenure, documenting impacts of the federal policies of Removal,
    Allotment and forced Assimilation, and Termination, all of which
    displaced many tribal governments, leaving some tribes completely
    landless. Former Senate Committee on Indian Affairs Chairman Byron
    Dorgan acknowledged that ``Tribes ceded close to 200 million acres of
    land during the treaty-making and removal periods prior to 1881. Tribes
    lost an additional 90 million acres through the Allotment period
    between 1881 and 1934.'' \12\
    ---------------------------------------------------------------------------
        \12\ Examining Executive Branch Authority to Acquire Trust Lands
    for Indian Tribes, S. Hrg. 111-136 at 2 (May 21, 2009) (opening
    statement of Chairman Byron Dorgan) (online at https://
    www.indian.senate.gov/wp-content/uploads/documents/CHRG-
    111shrg52879.pdf).

    ---------------------------------------------------------------------------
        The late Professor William Rice testified that:

            By 1934, Indian landownership had been reduced . . . to
            48,000,000 acres. But this did not tell the whole story. Even
            these shocking figures were misleading. Of the 48,000,000
            remaining acres, some 20,000,000 acres were in unallotted
            reservations, another 20,000,000 acres were desert or semi-
            desert lands, and some 7,000,000 were in fractionated heirship
            status awaiting sale to non-Indians.\13\
    ---------------------------------------------------------------------------
        \13\ See The IRA--75 Years Later: Renewing our Commitment to
    Restore Tribal Homelands and Promote Self-Determination, S. Hrg. 112-
    113 at 14 and fn.12 (June 23, 2011) (statement of Prof. William Rice,
    citing Indian Affairs Committee hearings on the ``Wheeler-Howard Indian
    Reorganization Act'') (online at https://www.govinfo.gov/content/pkg/
    CHRG-112shrg68389/pdf/CHRG-112shrg68389.pdf).

        The policy of forced Allotment and Assimilation (1881-1934) sought
    to destroy tribal governments by mandating the division of communally
    held tribal government homelands to individual tribal members. After
    allotments were made, remaining Indian lands were deemed ``surplus''
    and opened to settlement. As noted above, the Allotment policy resulted
    in the taking of more than 90 million acres of Indian lands, and led to
    the checkerboard landownership of many tribal communities and the land
    fractionation problems that continue to this day. Allotment and
    Assimilation also devastated tribal government economies, tribal
    culture, and Indigenous social systems.\14\
    ---------------------------------------------------------------------------
        \14\ Allotment and its authorized takings of ``surplus'' Indian
    lands stripped tribal governments of untold natural resources. In
    addition, the policy of Assimilation authorized the government to take
    Indian children from their homes, forcing them into federal boarding
    schools where they were forbidden from speaking their language or
    practicing their religion. We commend the Committee for advancing S.
    1723, which would establish a Truth and Healing Commission on Indian
    Boarding School Policies, and strongly support its final passage.

        Since the Supreme Court's 2009 decision in Carcieri v. Salazar,
    this Subcommittee and your Senate counterpart have also frequently
    examined the history, purposes, and impacts of the Indian
    Reorganization Act of 1934 (``IRA''). The primary purposes of the IRA
    were to put a stop to the unilateral allotment of Indian lands and to
    authorize the Interior Department to rebuild the tribal government land
    base.\15\ Section 5 of the IRA provides:
    ---------------------------------------------------------------------------
        \15\ 25 U.S.C. Sec. Sec. 5101 et seq.

            The Secretary of the Interior is hereby authorized, in his
            discretion, to acquire through purchase, relinquishment, gift,
            exchange, or assignment, any interest in lands, water rights or
            surface rights to lands, within or without existing
            reservations, including trust or otherwise restricted
            allotments whether the allottee be living or deceased, for the
            purpose of providing land for Indians.\16\
    ---------------------------------------------------------------------------
        \16\ 25 U.S.C. Sec. 5108.

        The IRA also sought to limit the often-unchecked authority of the
    Interior Department over local tribal government decision-making. To
    reverse the Allotment policy's efforts to undermine Tribal governments,
    Section 16 of the IRA sought to empower Tribes to organize their own
    governing structures by establishing Tribal constitutions and bylaws
    that fostered the enactment and enforcement of Tribal laws to govern
    their lands.\17\
    ---------------------------------------------------------------------------
        \17\ See The IRA--75 Years Later: Renewing our Commitment to
    Restore Tribal Homelands and Promote Self-Determination, S. Hrg. 112-
    113 at 15-16 (June 23, 2011) (statement of Prof. William Rice, quoting
    Indian Affairs Commissioner and architect of the IRA, John Collier, in
    his testimony before the Senate Committee on Indian Affairs in the run-
    up to passage of the IRA: ``Paralleling this basic purpose [of
    reversing the allotment system] is another purpose just as basic. The
    bill stands on two legs. At present the Indian Bureau is a czar. It is
    an autocrat. It is an autocrat checked here and there by enactments of
    Congress; but, in the main, Congress has delegated to the Indian Office
    plenary control over Indian matters. It is a highly centralized
    autocratic absolutism. Furthermore, it is a bureaucratic absolutism.'')
    (online at https://www.govinfo.gov/content/pkg/CHRG-112shrg68389/pdf/
    CHRG-112shrg68389.pdf).
    ---------------------------------------------------------------------------
        For 75 years, from 1934 to 2009, the Department of the Interior
    restored approximately 8 million acres of tribal government fee lands
    into trust status. Interior Departments of presidents of both political
    parties used the IRA to place land into trust for federally recognized
    Indian tribes regardless of whether they were formally acknowledged as
    a tribe before or after 1934. Tribes have used their trust lands to
    build schools, health centers and housing to serve their communities.
    These lands are also used for tribal enterprises to promote economic
    development in mostly rural communities that are all too often
    underserved and overlooked.\18\
    ---------------------------------------------------------------------------
        \18\ There is a common misperception that the Interior Department's
    fee to trust process serves to expand Indian gaming. The IRA authorizes
    Interior to place tribal government-owned fee land into trust and
    nothing more. Nothing in the IRA authorizes or regulates Indian gaming.
    The question of whether Indian trust lands are eligible to be used for
    gaming is governed solely by the Indian Gaming Regulatory Act and the
    National Indian Gaming Commission and Interior Department regulations
    developed to implement that separate law. Admittedly, some Tribes do
    submit land into trust applications for gaming purposes. However, those
    relatively few applications must not only meet the requirements of the
    IRA's Part 151 regulations to have land placed into trust, but they
    must also separately meet the requirements of the Interior Department's
    Part 292 IGRA regulations in order to use the lands for gaming
    purposes. As former Assistant Secretary Kevin Washburn noted, of the
    1,300 trust acquisitions submitted to Interior from 2008-2013, fewer
    than 15 were for gaming purposes. See testimony of Kevin Washburn
    before the House Resources Committee's Subcommittee on Indian and
    Alaska Native Affairs, at 2 (Sept. 19, 2013) (online at https://
    naturalresources.house.gov/uploadedfiles/washburn testimony09-19-
    13.pdf).
    ---------------------------------------------------------------------------
    The 2009 Carcieri v. Salazar Decision and its Impacts

        The Supreme Court, in Carcieri v. Salazar, reversed these 75 years
    of practice and precedent. The Court tied the Interior Secretary's IRA
    Section 5 authority to place land into trust for Indian tribes to the
    Act's definition of ``Indian'', which provides that:

            The term `Indian' as used in this Act shall include all persons
            of Indian descent who are members of any recognized Indian
            tribe now under Federal jurisdiction, and all persons who are
            descendants of such members who were, on June 1, 1934, residing
            within the present boundaries of any Indian reservation, and
            shall further include all other persons of one-half or more
            Indian blood.\19\
    ---------------------------------------------------------------------------
        \19\ 25 U.S.C. Sec. 5129 (emphasis added).

        The Court held ``that the term `now under Federal jurisdiction' in
    [the IRA] unambiguously refers to those tribes that were under the
    federal jurisdiction of the United States when the IRA was enacted in
    1934.'' However, Court's decision provided no guidance to determine the
    meaning of the phrase ``under federal jurisdiction'', and nothing in
    the text of the IRA or its legislative history defines that phrase.
        In the first Carcieri-related hearing before Congress, former
    Senate Indian Affairs Committee Chairman Dorgan acknowledged--``I just
    want to say that I am concerned about the court's decision in Carcieri
    and the impact it may have on those tribes that were recognized after
    1934. I believe that Congress will likely need to act to clarify this
    issue for tribes and to ensure that the land in trust process is
    available to all tribes regardless of when they were recognized.'' \20\
    He predicted that the decision could impact hundreds of tribes by:
    slowing the land-into-trust process; leading to costly litigation over
    the status of Indian lands; complicating criminal jurisdiction in
    Indian Country; hindering economic development; and creating two
    classes of Indian tribes.\21\ Sadly, each of these predictions have
    come true.
    ---------------------------------------------------------------------------
        \20\ Examining Executive Branch Authority to Acquire Trust Lands,
    S. Hrg. 111-136 at 1 (May 21, 2009) (opening statement of Chairman
    Byron Dorgan) (online at https://www.indian.senate.gov/wp-content/
    uploads/documents/CHRG-111shrg52879.pdf).
        \21\ Id. at 2-3.
    ---------------------------------------------------------------------------
    Costly and Time-Consuming Litigation

        We know the effects of the Carcieri decision all too well. Our
    Tribe has been forced to defend the status of our trust lands in
    several federal court cases. In 2013, the State of Alabama relied on a
    Carcieri-based argument in seeking to enjoin federally approved gaming
    on Poarch Creek trust lands. The United States, while not named as a
    defendant in the proceedings, filed amicus curiae briefs in support of
    the Tribe's successful motion to dismiss the case and again when the
    State unsuccessfully appealed dismissal of its claims to the Eleventh
    Circuit Court of Appeals.\22\ While both the trial and appellate courts
    rejected the State of Alabama's Carcieri challenge, the Tribe was
    forced to spend hundreds of thousands of dollars and the federal
    government was forced to devote limited funding an attorney resources
    to secure that result.
    ---------------------------------------------------------------------------
        \22\ Alabama v. PCI Gaming Auth., 801 F.3d 1278 (11th Cir. 2015).
    ---------------------------------------------------------------------------
        Similarly, the Tribe was forced to file its own federal lawsuit in
    2015 in response to the Escambia County, Alabama, tax assessor's
    attempt to assess state taxes on Poarch Creek trust lands in erroneous
    reliance on the Carcieri decision. The Tribe again prevailed before the
    federal district court and the Eleventh Circuit Court of Appeals, with
    the United States filing an appellate amicus curiae brief in support of
    the Tribe's position.\23\ And once again, Poarch Creek and the United
    States were forced to devote limited, valuable time and financial
    resources to litigating spurious claims that resulted directly from the
    uncertainty generated by the Carcieri decision.
    ---------------------------------------------------------------------------
        \23\ Poarch Band of Creek Indians v. Hildreth, 656 F. App'x 934
    (11th Cir. 2016).
    ---------------------------------------------------------------------------
        These are but two examples. We have seen specious Carcieri
    arguments raised in numerous other cases filed in state and federal
    courts, many of which have nothing whatsoever to do with the trust
    status of Poarch Creek lands, but where the Carcieri argument is
    nonetheless raised either out of lack of understanding or in an attempt
    to extort an unwarranted settlement from the Tribe.
        The impacts of Carcieri of course go far beyond our Tribe. Many
    dozens of cases making Carcieri-based arguments have been filed in
    federal and state courts by state and local governments and individuals
    throughout the United States. In addition, the Interior Board of Indian
    Appeals has been bogged down for more than 15 years now with Carcieri-
    related challenges to the BIA's IRA fee to trust decisions.\24\ It is
    difficult to fathom the hours and legal fees related to these cases,
    not only to the tribal governments forced to defend the attacks on
    their land, but also to the teams of attorneys at the U.S. Department
    of the Interior's Solicitor's Office and the U.S. Department of
    Justice's Environment and Natural Resources Division.
    ---------------------------------------------------------------------------
        \24\ See e.g., Legislative Hearing on H.R. 312, Mashpee
    Reaffirmation Act; H.R. 375, National Carcieri Fix; and Discussion
    Draft of the RESPECT Act, at 28-29 (April 3, 2019) (Testimony of
    Professor Colette Routel) (online at https://www.congress.gov/116/chrg/
    CHRG-116hhrg35971/CHRG-116hhrg35971.pdf).
    ---------------------------------------------------------------------------
        Thankfully, every court reviewing the issue has upheld the Interior
    Department's decisions to place our land in trust. However, these
    lawsuits have taken a toll, and that is why our Tribe is seeking a
    legislative solution that will provide us with long needed legal
    certainty.
    Two Classes of Tribes

        In addition, as Senator Dorgan anticipated, the Carcieri decision
    has created two classes of tribes: those able to prove that they were
    ``under federal jurisdiction'' in 1934, and those that cannot. This
    result directly conflicts with Congress' 1994 amendments to the IRA,
    which mandated that all federally recognized Indian tribes be treated
    the same for all purposes under the Act.

        The 1994 amendments were passed in direct reaction to efforts at
    the Bureau of Indian Affairs to use Section 16 of the IRA to classify
    Indian tribes as being either ``created'' or ``historic''. Senator John
    McCain, then Vice Chairman of the Senate Indian Affairs Committee,
    offered the amendment, in part, in response to the BIA's treatment of
    the Pascua Yaqui Tribe of Arizona. In his floor statement that led to
    passage of the amendment, Senator McCain shared the following:

            According to the Department, created tribes are only authorized
            to exercise such powers of self-governance as the Secretary may
            confer on them . . .. I can find no basis in law or policy for
            the manner in which section 16 has been interpreted by the
            Department of the Interior . . ..

            The recognition of an Indian tribe by the Federal Government is
            just that--the recognition that there is a sovereign entity
            with governmental authority which predates the U.S.
            Constitution and with which the Federal Government has
            established formal relations. Over the years, the Federal
            Government has extended recognition to Indian tribes through
            treaties, executive orders, a course of dealing, decisions of
            the Federal courts, acts of Congress and administrative action.
            Regardless of the method by which recognition was extended, all
            Indian tribes enjoy the same relationship with the United
            States and exercise the same inherent authority. All that
            section 16 was intended to do was to provide a mechanism for
            the tribes to interact with other governments in our Federal
            system in a form familiar to those governments through tribal
            adoption and Secretarial approval of tribal constitutions for
            those Indian tribes that choose to employ its provisions.

            Clearly the interpretation of section 16 which has been
            developed by the Department is inconsistent with the
            [principal] policies underlying the IRA, which were to
            stabilize Indian [tribal] governments and to encourage self-
            government. These policies have taken on additional vitality in
            the last 20 years as the Congress has repudiated and repealed
            the policy of termination and enacted the Indian Self-
            Determination and Education Assistance Act and the Tribal Self-
            Governance Demonstration Project. The effect of the
            Department's interpretation of section 16 has been to
            destabilize Indian tribal governments and to hinder self-
            governance of the Department's unilateral and often arbitrary
            decisions about which powers of self-governance a tribal
            government can exercise.\25\
    ---------------------------------------------------------------------------
        \25\ 140 Cong. Rec. 11234 (May 19, 1994).

        Senator Inouye, then-Chair of the Committee, who also co-sponsored
    ---------------------------------------------------------------------------
    the amendment, made the following statement to clarify its purpose:

            [O]ur amendment will correct any instance where any federally
            recognized Indian tribe has been classified as `created' and
            that it will prohibit such classifications from being imposed
            or used in the future. Our amendment makes it clear that it is
            and has always been Federal law and policy that Indian tribes
            recognized by the Federal Government stand on an equal footing
            to each other and to the Federal Government . . .. Each
            federally recognized Indian tribe is entitled to the same
            privileges and immunities as other federally recognized tribes
            and has the right to exercise the same inherent and delegated
            authorities. This is true without regard to the manner in which
            the Indian tribe became recognized by the United States or
            whether it has chosen to organize under the IRA. By enacting
            this amendment to section 16 of the IRA, we will provide the
            stability for Indian tribal governments that the Congress
            thought it was providing 60 years ago when the IRA was
            enacted.\26\
    ---------------------------------------------------------------------------
        \26\ 140 Cong. Rec. 11235 (May 19, 1994).

        The amendment, enacted on May 31, 1994, added subsections (f) and
    (g) to the Section 16 of the IRA. Subsection (f), titled ``Privileges
    and Immunities of Indian Tribes'' prohibited all federal agencies from
    promulgating regulations or making decisions ``that classifies,
    enhances, or diminishes the privileges and immunities available to the
    Indian tribe relative to other federally recognized tribes by virtue of
    their status as Indian tribes.'' Subsection (g) accomplished this same
    goal, but retroactively, by proclaiming that any regulation or
    administrative decision that treated tribal governments in a disparate
    manner ``shall have no force or effect.'' \27\
    ---------------------------------------------------------------------------
        \27\ P.L. 103-263 (May 31, 1994), codified at 25 U.S.C.
    Sec. 5123(f), (g). Given the background of Section 16 of the IRA
    detailed by Professor Rice, it is beyond comprehension why or how the
    Interior Department undertook this effort.

        One of many tragic results of the Carcieri decision is that it has
    breathed life back into this misguided argument that Tribal governments
    are either ``historic'' or ``created''. Former Assistant Secretary for
    Indian Affairs, Kevin Washburn, testifying in his capacity as a
    Professor of the University of Iowa College of Law, attempted to refute
    ---------------------------------------------------------------------------
    this line of thinking:

            Since the 1990s, there has been a requirement that each year
            the Federal Government publish the list of tribes that are
            recognized. It would have been nice if we had had that in 1934.
            That would have saved a lot of this work for tribes. But the
            fact is there is no tribe that exists today that did not exist
            in 1934. We don't create tribes out of whole cloth in this
            country. We spend a lot of time working on the reformation of
            that tribal recognition process, and those tribes have always
            existed and so they deserve to have land if they have existed.
            So, I would respectfully urge the Committee to try to move H.R.
            375 through the House.\28\
    ---------------------------------------------------------------------------
        \28\ Legislative Hearing on H.R. 312, Mashpee Reaffirmation Act;
    H.R. 375, National Carcieri Fix; and Discussion Draft of the RESPECT
    Act, at 17 (April 3, 2019) (Testimony of Professor Kevin Washburn)
    (online at https://www.congress.gov/116/chrg/CHRG-116hhrg35971/CHRG-
    116hhrg35971.pdf).
    ---------------------------------------------------------------------------
    Administrative Attempts to Address the Carcieri Decision

        In the wake of the Carcieri decision, the Interior Department was
    forced to make determinations of whether a Tribe that filed an IRA
    application to place land into trust was under federal jurisdiction on
    a case-by-case basis. Tribal governments were given little guidance
    about what factors would be considered in this determination.
        To provide Tribes and the public with some guidance, the Interior
    Department's Office of the Solicitor issued an official M-Opinion on
    March 12, 2014, that provided a framework of how the agency would
    determine whether an Indian tribe was ``under federal jurisdiction'' in
    1934 for purposes of the administrative fee to trust process. The M-
    Opinion set forth a two-part test. The first factor requires a
    sufficient showing that ``the United States had, in 1934 or at some
    point in the tribe's history prior to 1934, an action or series of
    actions--through a course of dealings or other relevant acts for or on
    behalf of the tribe or in some instance tribal members--that are
    sufficient to establish, or that generally reflect federal obligations,
    duties, responsibility for or authority over the tribe by the Federal
    government.'' The second question is to ``ascertain whether the tribe's
    jurisdictional status remained intact in 1934.'' \29\
    ---------------------------------------------------------------------------
        \29\ The Meaning of Under Federal Jurisdiction for Purposes of the
    Indian Reorganization Act, M-37029 at 19 (Mar. 12, 2014).
    ---------------------------------------------------------------------------
        While the M-Opinion provided some needed transparency to the land
    into trust process post-Carcieri, it required extensive analysis and
    work by attorneys and historians from both the applicant Tribe and the
    Interior Department. Some ``under federal jurisdiction'' determinations
    took years to achieve. Often, when a land into trust decision was
    finalized pursuant to the M-Opinion, the Tribe had to wait additional
    years for the land to be placed into trust by wading through the
    federal court process. However, federal courts have generally upheld
    Interior's determinations pursuant to the 2014 M-Opinion.
        On March 9, 2020, then-Solicitor Daniel Jorjani issued a new M-
    Opinion withdrawing the 2014 M-Opinion, replacing it with two
    memoranda. The first examines the recognition and jurisdiction elements
    of the phrase ``any recognized tribe now under federal jurisdiction''.
    The second established a four-part test that replaced the test
    established in the 2014 M-Opinion. Step 1 acknowledged that if Congress
    enacted a law after 1934 making Section 5 of the IRA applicable to the
    Tribe, then no ``under federal jurisdiction'' determination would be
    necessary.\30\ In the absence of post-IRA legislation, Step 2 required
    a Tribe to show evidence that it was subject to ``the federal
    government's administration of its Indian affairs authority with
    respect to that particular group of Indians.'' If there is sufficient
    evidence ``presumptively demonstrat[ing]'' federal jurisdiction, the
    trust acquisition may proceed. Step 3 required a Tribe to show that it
    was recognized prior to 1934 and remained under federal jurisdiction in
    1934. Examples meeting Step 3 include ``ratified treaties still in
    effect in 1934; tribe-specific Executive Orders; tribe-specific
    legislation, including termination legislation enacted after 1934,
    which acknowledges the existence of a government-to-government
    relationship with a tribe at the time it is enacted.'' \31\ If a Tribe
    did not meet Steps 1-3, Step Four asks whether the ``totality of an
    applicant tribe's non-dispositive evidence . . . is sufficient to show
    that the tribe was `recognized' in or before 1934 and remained `under
    federal jurisdiction' through 1934 [notwithstanding gaps in the
    historical record].'' Step 4 also stated that applicant tribes
    recognized after 1934 or acknowledged after 1978 under the
    administrative procedures at Part 83 could also show evidence of
    ``political-legal `recognition' in or before 1934.'' \32\
    ---------------------------------------------------------------------------
        \30\ Memorandum from Interior Solicitor Jorjani to Regional and
    Field Solicitors, Procedure for Determining Eligibility for Land-Into-
    Trust under the First Definition of ``Indian'' in Section 19 of the
    IRA, at 2 and fn. 4-6 (Mar. 10, 2020).
        \31\ Id. at 6-8.
        \32\ Id. at 8-10.
    ---------------------------------------------------------------------------
    Regulatory Improvements to the Land into Trust Process

        Recognizing the limited shelf life of Interior M-Opinions, in
    October 2021, the Interior Department initiated an effort to amend its
    Part 151 regulations that implement the IRA's Section 5 land into trust
    provision. On December 12, 2023, the Interior Department published a
    final rule to amend these regulations governing the discretionary
    acquisition of tribal fee to trust applications at 25 C.F.R. Part
    151.\33\
    ---------------------------------------------------------------------------
        \33\ Land Acquisitions, 88 Fed. Reg. 86,222 (Dec. 12, 2023) (to be
    codified at 25 C.F.R. pt. 151).
    ---------------------------------------------------------------------------
        This is the first substantive update of the administrative Tribal
    fee into trust process since 1995. The regulatory changes streamline
    the land into trust process by establishing a 120-day deadline for the
    Department to make a final determination on trust land applications.
    Importantly, the new regulation establishes criteria for a Tribal
    Government's eligibility to use the regulation by clarifying the
    Department's process to determine whether a Tribe was ``under federal
    jurisdiction'' in 1934, as required by the Supreme Court's Carcieri
    decision.\34\
    ---------------------------------------------------------------------------
        \34\ In October 2021, Interior held Tribal Leader consultation
    sessions that discussed the need to improve the administrative process
    to restore tribal homelands. On March 28, 2022, the Department released
    draft revisions to Part 151, and held four Tribal Leader consultations,
    which led to a proposed rule that was published on December 6, 2022.
    The Interior Department held several consultations on the proposed
    rule, and accepted verbal and written comments through March 1, 2023.
    ---------------------------------------------------------------------------
        Our Tribe truly appreciates the Interior Department's efforts to
    improve the administrative land into trust process, and we fully
    support these changes. While the updated regulations make the process
    for a Tribe to prove that it was ``under federal jurisdiction'' much
    clearer, the updated process still requires teams of attorneys and
    historians from both the Tribe and the Interior Department to navigate
    through the regulatory process. If the prior M-Opinions are any
    indication, even the streamlined process could take years to come to
    resolution.
        In addition, we remain concerned that the regulations will be the
    subject of future litigation. Just as the Department's recent land into
    trust decisions made pursuant to the various M-Opinions have been
    challenged in court, decisions made pursuant to the updated regulations
    will likewise be challenged. The ensuing legal process will also take
    many years to achieve a final ruling. The legal challenges will most
    likely start at the Interior Board of Indian Appeals, which is already
    backlogged with dozens of tribal trust land acquisition appeals and
    faces multiple administrative judicial vacancies. Claims will then have
    to wind their way through the federal district and appellate courts,
    again consuming countless hours and resources.
        As a result, our Tribe is taking what for us is a new approach to
    addressing our government's need for additional trust lands by working
    with our congressional delegation and nearby local governments to gain
    support and passage of the Poarch Band of Creek Indians Lands Act,
    which would clarify that our Tribe was under federal jurisdiction in
    1934 for purposes of the IRA. Our approach is consistent with the
    Interior Department's updated land to trust regulations and past and
    recent precedent in Congress.

        Section 151.4(b) of Interior's updated regulation clarifies that if
    Congress enacted legislation after 1934 making the IRA's land into
    trust provisions applicable to a specific Tribe, no ``under federal
    jurisdiction'' analysis is needed. Section 151.4(b) of the final rule
    provides,

            (b) For some Tribes, Congress enacted legislation after 1934
            making the IRA applicable to the Tribe. The existence of such
            legislation making the IRA and its trust acquisition provisions
            applicable to a Tribe eliminates the need to determine whether
            a Tribe was under Federal jurisdiction in 1934.\35\
    ---------------------------------------------------------------------------
        \35\ 88 Federal Register 86251 (Dec. 12, 2023).

        While new to our Tribe, this approach simply follows the approach
    that Congress has taken since the 1970s for Tribes that were restored
    to federal recognition through an act of Congress.\36\
    ---------------------------------------------------------------------------
        \36\ Legislative Hearing on H.R. 312, Mashpee Reaffirmation Act;
    H.R. 375, National Carcieri Fix; and Discussion Draft of the RESPECT
    Act, at 32 and fn. 5 (April 3, 2019) (Testimony of Professor Colette
    Routel) (online at https://www.congress.gov/116/chrg/CHRG-116hhrg35971/
    CHRG-116hhrg35971.pdf).
    ---------------------------------------------------------------------------
    Legislative Efforts to Address the Carcieri Decision

        February 24, 2024, marked the 15-year anniversary of the Carcieri
    decision. Congress has considered national Carcieri fix bills every
    year for the past 15 years.\37\ With some minor differences, each of
    these bills sought to amend the IRA to eliminate the phrase ``under
    federal jurisdiction'' and clarify that the IRA's land to trust
    provision applies to all federally recognized Indian tribes. The House
    of Representatives passed a national Carcieri fix in the 116th and
    117th Congresses with broad bipartisan support each time under
    suspension of the rules.\38\ However, those bills did not reach final
    passage.
    ---------------------------------------------------------------------------
        \37\ 117th Congress--H.R. 4352 (McCollum), S. 1901 (Tester); 116th
    Congress--H.R. 375 (Cole), S. 2808 (Tester); 115th Congress--H.R. 130
    (Cole), H.R. 131 (Cole)(reaffirmation); 114th Congress--H.R. 407
    (McCollum), H.R. 249 (Cole), S. 732 (Tester), H.R. 3137
    (Cole)(reaffirmation); 113th Congress--H.R. 666 (Markey), H.R. 279
    (Cole), S. 2188 (Tester); 112th Congress--H.R. 1234 (Kildee), H.R. 1291
    (Cole), S. 767 (Akaka); 111th Congress--H.R. 3742 (Kildee), H.R. 3697
    (Cole), S. 1703 (Dorgan).
        \38\ Roll call vote on H.R. 4352, passed 302-127 (Dec. 1, 2021)
    (online at https://clerk.house.gov/Votes/2021393); Roll call vote on
    H.R. 375, passed 323-96 (May 15, 2019) (online at https://
    clerk.house.gov/Votes/2019208).
    ---------------------------------------------------------------------------
        The Poarch Band of Creek Indians has been one of the leading
    advocates for a national ``Carcieri fix.'' Today, I again offer our
    full support for Chairman Cole's bipartisan bill, H.R. 1208, which
    would accomplish this goal.
        In the 118th Congress, however, we are taking a parallel track
    similar to the strategy taken by dozens of Tribes who have worked with
    their congressional delegation to enact bills to mandate fee-to-trust
    actions, reaffirm trust lands, or clarify that the IRA applies to their
    individual tribe.\39\
    ---------------------------------------------------------------------------
        \39\ See e.g., NDAA for FY'2020, P.L. 116-92 (Dec. 20, 2019) (as
    enacted included the Santa Ynez Band of Chumash Indians Land
    Affirmation Act (Sec. 2868), the Lytton Rancheria Homelands Act
    (Sec. 2869), the Little Shell Tribe of Chippewa Indians Restoration Act
    (Sec. 2870)); Thomasina E. Jordan Indian Tribes of Virginia Federal
    Recognition Act of 2017, P.L. 115-121 (Jan. 29, 2018); Gun Lake Trust
    Land Reaffirmation Act, P.L. 113-590 (July 30, 2013).
    ---------------------------------------------------------------------------
        We are grateful to Rep. Carl for introducing the Poarch Band of
    Creek Indians Lands Act, H.R. 6180, which would clarify that the IRA's
    land-into-trust process applies to our Tribe. H.R. 6180 will enable us
    to work with the Interior Department and local governments restore and
    protect our lands to meet the acute needs of our growing community.
    This bill is targeted and tailored, and it has the strong support of
    the Alabama congressional delegation and the cities and counties
    surrounding our trust land, including Elmore County, Escambia County,
    and Montgomery County.
        I respectfully ask the full Committee to bring H.R. 6180 to a
    markup and advance the bill to final passage in the 118th Congress. On
    behalf of the Poarch Band of Creek Indians, I am honored to speak to
    you today, and I am happy to answer any questions. Thank you.

                                     *****

    The following documents were submitted as supplements to Ms. Bryan's
    testimony.

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    In Support of Poarch Band of Creek Indians Parity Act--Legislation
      to clarify the Land Into Trust Process for the Poarch Band of Creek
                                    Indians
                                October 12, 2023

    To: Members of the U.S. Senate and House of Representatives
    RE: Support for the Poarch Band of Creek Indians Parity Act

        On behalf of the undersigned, we write in strong support of the
    Poarch Band of Creek Indians Parity Act, legislation to clarify the
    Land Into Trust Process for the Poarch Band of Creek Indians (Tribe.)

        The Tribe is a major economic driver in our counties and cities and
    throughout Alabama, and employs over 3500 Alabamians, 90 percent of
    whom are not Tribal members. Additionally, with over 2,700 enrolled
    Poarch Creek tribal members who are citizens of our state, we feel a
    duty to do our small part to ensure the Tribe can exercise its inherent
    sovereignty to provide for future generations.

        This legislation is necessary because the Supreme Court ruled in
    2009 that the Department of Interior's (DOI's) tribal fee-to-trust
    authority is limited to only those tribal governments that were ``under
    federal jurisdiction'' as of June 18, 1934, the date of enactment of
    the Indian Reorganization Act (IRA). DOI has struggled to consistently
    define the term ``under federal jurisdiction.'' The term ``under
    federal jurisdiction'' is not defined in the IRA and there is no
    legislative history to discern congressional intent of the term. Since
    2009, DOI has relied on multiple Solicitor M-opinions to determine
    whether a tribe is under federal jurisdiction. This ambiguity has made
    the process subject to litigation based on unfounded legal claims and
    has resulted in heavy legal/administrative burdens for tribes. As such,
    the Tribe has been subjected to unnecessary litigation over the status
    of its lands since 2009. Further, the U.S. must commit significant
    resources from the Departments of Justice and Interior to do archival
    analysis, legal research, and litigation support for these decisions at
    great taxpayer expense.

        Fortunately, the Tribe has prevailed in these cases, but these
    constant attacks have taken an unnecessary toll on the Tribe--stalling
    development for improved housing, health care, and other essential
    services to the community. The Tribe is a great community partner, and
    it is important that we support their efforts to correct this legal
    ambiguity. This legislation would allow the Tribe to strengthen its
    capacity to better provide for its nation and the surrounding
    communities. We offer our full support of the Poarch Band of Creek
    Indians Parity Act.

                Sincerely,

            Greg Albritton                Alan Baker
            Alabama Senate District 22    Alabama House of Representatives
                                          District 66
            Jim Staff, Mayor              Jerry Willis, Mayor
            City of Atmore                City of Wetumpka

            Steven Reed, Mayor            Charles W. Jinright, President
            City of Montgomery            Montgomery City Council

            Doug Singleton, Chairman      Bart Mercer, Chairman
            Montgomery County
            Commission                    Elmore County Commission

            Mack Daugherty                Dennis Hill
            Elmore County Commission      Elmore County Commission

            Henry Hines                   Desirae Lewis Jackson
            Elmore County Commission      Elmore County Commission

            Raymond Wiggins, Chairman     Steven Dickey
            Escambia County Commission    Escambia County Commission

            Larry White                   Karean L. Reynolds
            Escambia County Commission    Escambia County Commission

            Brandon Smith
            Escambia County Commission

                                     ______

    Questions Submitted for the Record to the Hon. Stephanie Bryan, Tribal
                       Chair & CEO, Poarch Creek Indians

                Questions Submitted by Representative Westerman

        Question 1. Your written testimony described your tribal history in
    the state of Alabama and the tribe's current relationships with many
    local governments. Can you expand on how your tribe was able to build
    and maintain these relationships?

        1a) How can Congress help to promote congenial relationships
    between tribes and localities?

        Answer. When we first went through the Interior Department's land
    into trust process, our Tribe did not have much in the way of
    resources. Over the years, as our economy developed and the Tribe's
    enterprises grew and diversified, we were able to strengthen our
    relationships with nearby counties and local governments, entering into
    dozens of MOUs and intergovernmental agreements as noted in my written
    statement. However, far too many tribal governments lack resources to
    meet the most basic needs of their citizens. As a result, they are not
    able to help their neighboring state or local governments.
        One proposal that would help foster relationships between tribes
    and local units of government would be to include tribal trust lands in
    the Payment In Lieu of Taxes (``PILT'') program. Congress established
    the PILT program in 1976 to help local governments offset losses in
    property taxes due to the existence of nontaxable Federal lands within
    their boundaries. PILT payments are made annually for tax-exempt
    Federal lands administered by Department of the Interior agencies,
    including the Bureau of Land Management, the National Park Service, the
    U.S. Fish and Wildlife Service, and the Bureau of Reclamation. In
    addition, PILT payments cover Federal lands administered by the U.S.
    Forest Service, the U.S. Army Corps of Engineers, and the Utah
    Reclamation Mitigation and Conservation Commission.
        Many local government concerns with tribal government land-into-
    trust applications relate to potential losses of tax revenue. Including
    tribal trust lands in the PILT program would resolve these concerns.
    While Indian trust lands are not public lands owned by the United
    States, the government does hold legal treaty and trust obligations to
    make existing Indian lands livable homes to tribal citizens and to help
    restore the tribal government land base.
        Question 2. You mentioned in your testimony that several litigation
    challenges continually use the Carcieri decision reasoning, even after
    cases have been resolved.

        2a) Is there any litigation still ongoing?

        2b) If so, what is the status of the litigation?

        Answer. Fortunately, our Tribe, often with the support of the
    federal government, has been successful in defeating most Carcieri-
    based arguments in court during the early stages of litigation. We have
    also settled a handful of lawsuits where Carcieri arguments were raised
    in connection with alleged injuries involving our various businesses
    and facilities. The U.S. Court of Appeals for the Eleventh Circuit has
    already rejected challenges to the status of our trust lands on two
    separate occasions. See Poarch Band of Creek Indians v. Hildreth, 565
    F. App'x 934, 942-44 (11th Cir. 2016); Alabama v. PCI Gaming Authority,
    801 F.3d 1278, 1291-93 (11th Cir. 2015). The United States filed brief
    in support of our Tribe in both of these cases, expending valuable
    federal resources.
        The only ongoing litigation where a Carcieri challenge has been
    raised is a lawsuit brought by the Muscogee (Creek) Nation challenging
    our right to develop our trust land in Wetumpka, Alabama. The United
    States District Court for the Middle District of Alabama dismissed all
    of Muscogee's claims against our Tribe and the United States in March
    2021, but Muscogee has appealed that ruling to the Eleventh Circuit
    Court of Appeals. Muscogee's Carcieri claims ignore the two prior
    decisions on this now well-settled legal question, and further prove
    our point that our Tribe will be forced to litigate these baseless
    legal claims time and again without enactment of H.R. 6160. And
    Muscogee's lawsuit, which names various federal officials and entities
    as defendants, has forced the federal government to once again expend
    taxpayer funds to relitigate this twice-decided issue. After Muscogee
    filed its appeal, our two tribal nations engaged in a lengthy mediation
    process in an effort to amicably resolve the dispute, but it proved
    unsuccessful, and the appeal is moving forward. The only question on
    appeal is whether the Poarch Band of Creek Indians can be sued in
    federal court without our consent; the district court dismissed
    Muscogee's claims without even needing to reach the Carcieri argument.
    All appellate briefs have been filed, and oral argument before a panel
    of the Eleventh Circuit is set for September of this year.

        Question 3. In your written testimony, you mentioned that your
    tribe is looking to develop a nursing home but needs additional land.

        3a) Are there lands your tribe is seeking to have taken into trust
    currently?

        3b) Have you seen any opposition to these applications?

        Answer. Currently, we do not have any pending trust land
    applications due to the concerns the Tribe has regarding the definition
    of ``under federal jurisdiction'' in 1934. As previously stated the
    Poarch Band of Creek Indians has already spent millions of dollars
    defending our existing trust lands. While we are confident that our
    Tribe qualifies to have land taken into trust under current law, as the
    federal government has repeatedly concluded, we are equally confident
    that any trust land application by our Tribe will lead to costly,
    extended litigation that will frustrate the purpose and value of any
    potential trust acquisition. Until the Department of Interior's
    authority to take land into trust for our Tribe is unequivocally
    affirmed, we cannot risk facing additional costly challenges that may
    arise due to the lack of clarity on the definition of `under federal
    jurisdiction' as required by the Indian Reorganization Act.

        Question 4. Is there anything else you would like to add to your
    testimony on how the Department of the Interior's fee-to-trust process
    could be reformed to benefit tribes and state and local governments?

        Answer. As noted in my written testimony, the Poarch Band of Creek
    Indians generally supports the amendments to the Part 151 regulations.
    We support the clarification to the process for a Tribe to prove that
    it was ``under federal jurisdiction.'' However, as noted below, upon
    further review of new Part 151.11, the Tribe does not support the
    elimination of the ``bungee cord'' approach, which had been employed
    since at least 1995.

        Question 5. The new 25 CFR Part 151 regulations governing lands
    into trust provide no geographic boundaries within which tribes can
    acquire trust lands, eliminates the previous requirement that the
    Secretary use heightened scrutiny the further a tribe goes from its
    existing reservation to seek new trust lands, and failed to include a
    consultation requirement with nearby tribes for any new trust land
    acquisitions. In fact, the regulations do not even require the
    Department to notify a tribe if another tribe applies for trust lands.
    The Interior Secretary would be able to review such an application with
    complete discretion and no requirement to notify or consult affected
    tribes.

        5a) Does Poarch Band support this part of the new regulations that
    eliminate the heightened scrutiny for applications that seek to acquire
    lands far from a tribe's existing reservation?

        5b) Would you want the Interior Secretary to be mandated to consult
    with you if any other tribe applies for trust lands within your
    ancestral territory in Alabama?

        Answer. The updated regulations to Part 151.11, now listed under
    the question ``How will the Secretary evaluate a request involving land
    outside of and noncontiguous to the boundaries of an Indian
    reservation?'', eliminate the requirement that as the distance between
    the applicant-tribe's reservation and the land sought to be placed in
    trust increases, ``the Secretary shall give greater scrutiny'' to
    application.
        As noted in my written testimony, our Tribe appreciates the
    Interior Department's efforts to improve the administrative land into
    trust process. We generally support the changes at Part 151.4 to
    clarify the process for a Tribe to prove that it was ``under federal
    jurisdiction.'' However, upon further review of new Part 151.11, the
    Tribe does not support the elimination of the requirement that the
    Secretary give greater scrutiny to off-reservation land into trust
    applications as the distance between the applicant tribe's current
    lands increases, also known as the ``bungee cord'' approach, which had
    been employed since at least 1995.
        Yes, we would want the Interior Secretary to consult if any other
    tribe applied for trust lands within our ancestral territory in
    Alabama. Failure to require consultation with nearby federally
    recognized Indian tribes has been a long-standing gap in the fee to
    trust process. While the regulations in place from at least 1995 to
    2024 required Interior to provide notice and comment to state and local
    governments, it did not provide similar outreach to federally
    recognized Indian tribes that have existing trust lands nearby the
    proposed land into trust application and have never required meaningful
    consultation with nearby federally recognized Indian tribes.

                                     ______

        Ms. Hageman. Thank you, Ms. Bryan. The Chair now recognizes
    the Honorable David Rabbitt for 5 minutes.

      STATEMENT OF THE HON. DAVID RABBITT, DISTRICT 2 SUPERVISOR,
         SONOMA COUNTY BOARD OF SUPERVISORS, SONOMA, CALIFORNIA

        Mr. Rabbitt. Chair Hageman, thank you very much. Ranking
    Member Leger Fernandez, thank you, as well. And members of the
    Subcommittee, thank you for the opportunity to participate in
    today's hearing. My name is David Rabbitt. I am an elected
    supervisor from Sonoma County, California and current Chair.
    The testimony that I am delivering is on behalf of the National
    Association of Counties, or NACo, which represents America's
    3,069 counties, nearly 40,000 county elected officials, and
    over 3.6 million county employees. I am an active member of
    NACo, formerly serving on its board of directors, and have been
    a leading voice in county and tribal relations.
        Incidentally, I am from Sonoma County, a county that has
    five federally recognized tribes. A sixth is also looking to
    move into the county. Three of those tribes currently operate
    casinos: two within the county, one within the Bay area. But I
    will say this, that we have agreements with all five of our
    federally recognized tribes, and that is what I am here today
    to hope that you also agree that that is a great way to go
    forward.
        Counties play, as you know, a critical role in everyday
    life of the nation's residents. Strong intergovernmental
    partners, county support, government-to-government relations
    that recognize the unique role and interests of tribes, state,
    counties, and other local governments, all to protect the
    members of our communities.
        It is incumbent upon Congress to fix the long-standing
    systemic defects in the Department of the Interior's broken
    fee-to-trust process. And to be clear, we believe that any
    Carcieri fix or any legislation that would restore the Interior
    Secretary's authority to take land into trust for tribes must
    be coupled with much-needed, long-overdue reforms in the
    Federal Government's deeply flawed trust land decision-making
    process.
        Unfortunately, the so-called clean Carcieri fix would do
    nothing to repair the underlying problems in the trust land
    system, and would only serve to exacerbate and perpetuate the
    inherent conflict and fundamental flaws of the current process,
    a process, incidentally, that is broken for all parties: tribes
    and local governments.
        Existing Federal laws and regulations simply fail to
    address the off-reservation impacts of tribal land development,
    including casinos, and particularly in those instances of local
    land use and health and safety regulations.
        Trust acquisitions often increase demands for critical
    county services and resources such as law enforcement, fire
    protection, transportation, and water, without providing any
    mitigation for these impacts. Not only is mitigation ignored in
    the fee-to-trust process, a county's capacity to address the
    impacts is reduced by eliminating the land from the local tax
    base.
        Nonetheless, although trust acquisitions often result in
    significant off-reservation impacts, the Department of the
    Interior does not provide impacted local governments and
    communities with sufficient notice or meaningful opportunity to
    comment regarding fee-to-trust applications. Furthermore, the
    Department does not accord county concerns in off-reservation
    impacts adequate weight in the land-to-trust process.
        The Federal process is also flawed in that it does not
    provide an avenue for tribes to engage in good faith
    discussions regarding mitigation of environmental impacts of
    tribal development, nor is there any incentive for tribes to
    enter into mitigation agreements with local governments. It
    should be noted that an approach that encourages the
    intergovernment agreements between tribes and local governments
    affected by fee-to-trust applications is required and working
    well under recent California State gaming compacts.
        Again, in Sonoma County we entered into a comprehensive
    intergovernmental agreement to create an over 500-acre homeland
    for the Lytton Band of Pomo Indians, and supported legislation
    by Congressman Huffman to take that land into trust.
        Not only does such a collaborative approach offer the
    opportunity to streamline the application process, it can also
    help us ensure that success of the tribal project within the
    local community. The establishment of a trust land system that
    incentivizes intergovernmental agreements between tribes and
    local governments is at the heart of NACo's fee-to-trust reform
    recommendations.
        I would like to take just a few minutes to talk about that
    further. I can tell you personally I am an architect by
    profession, therefore, involved in development. And every
    development has an impact, an off-site impact, especially the
    smaller pieces of land, lands where that development occurs.
    And it is incumbent upon the developer, or the applicant, or
    the owner of that property to make sure that they are
    mitigating those impacts to the best extent possible. You can't
    eliminate everything, but you certainly can mitigate it. And I
    think, if you don't, what you end up doing is pushing that can
    down the road. And, unfortunately, I think what we have seen in
    the past is that many times leads to litigation.
        Some people think, by having these intergovernmental
    agreements beforehand, that that would delay a process. I
    personally believe, and by evidence with our experiences in our
    county believe, that actually it would speed the process
    because you would eliminate the chances of having litigation in
    the future over things that weren't transparent or fully
    explained prior.
        I think it is really just sitting down with each other,
    like most things are, communicating with one another. We
    totally understand and respect the sovereignty of the Tribal
    Nations. We can't dictate what is going to be built on those
    properties, but we can talk about how people will come and go
    from those properties. We can talk about what water will be
    used for those properties. We can talk about how the fire
    services, the law enforcement services, and so on and so forth.
        And I very much appreciate the board's willingness to hear
    me out today. And certainly, there is more within the written
    testimony.

        [The prepared statement of Mr. Rabbitt follows:]
       Prepared Statement of the Hon. David Rabbitt, Supervisor, Sonoma
     County, California on Behalf of the National Association of Counties
                                     (NACo)
                           on H.R. 1208 and H.R. 6180

        Thank you, Chair Westerman, Chair Hageman, Ranking Member Leger
    Fernandez, and Members of the Subcommittee, for the opportunity to
    testify today. My name is David Rabbitt, and I am a County Supervisor
    in Sonoma County, California and am actively involved in and formerly
    served as a member of the Board of Directors of the National
    Association of Counties (NACo). This testimony is submitted on behalf
    of NACo, which has been a leader in pursuing federal laws and
    regulations that provide the framework for constructive government-to-
    government relationships between counties and tribes.
        Established in 1935, NACo is the only national organization
    representing county governments in Washington, DC. Over 2,600 of the
    3,069 counties in the United States are members of NACo, representing
    over 80 percent of the nation's population. NACo provides an extensive
    line of services including legislative, research, technical and public
    affairs assistance, as well as enterprise services to its members.
        I am also an active member of the California State Association of
    Counties (CSAC), which was founded in 1895, and is the unified voice on
    behalf of all 58 of California's counties. The primary purpose of the
    association is to represent county government before the California
    Legislature, administrative agencies, and the federal government. Along
    with NACo, CSAC has been a leader in actively pursuing federal policies
    aimed at fostering productive tribal-county relationships.
        Counties play a critical role in the everyday lives of our nation's
    residents. Many county responsibilities are mandated by both the state
    and the federal government. While county responsibilities differ
    widely, most states grant their counties significant authority to
    fulfill public services. These authorities include construction and
    maintenance of roads, bridges and critical infrastructure, assessment
    of property taxes, record keeping, administering elections, and
    overseeing jails, court systems and public hospitals. Counties are also
    responsible for child welfare, consumer protection, economic
    development, employment and workforce training, emergency management,
    land use planning and zoning. As strong intergovernmental partners,
    counties support government-to-government relations that recognize the
    unique role and interests of tribes, state, counties and other local
    governments to protect all members of our communities and provide
    governmental services and infrastructure beneficial to all.
        At the outset, I'd like to take this opportunity to reaffirm NACo's
    absolute respect for the authority of federally recognized Indian
    tribes. We reaffirm our support for the right of tribes to self-
    governance and recognize the need for tribes to preserve their heritage
    and to pursue economic self-reliance. Furthermore, NACo recognizes the
    disparity and inequity caused by the Court's 2009 decision in Carcieri
    v. Salazar and believes that it continues to be the responsibility of
    Congress to pass legislation that would put all federally recognized
    tribes on equal footing relative to the opportunity to have land taken
    into trust.
        At the same time, it is absolutely essential that Congress fix the
    long-standing, systemic defects in the Department of the Interior's
    broken fee-to-trust process. To be crystal clear, we believe that any
    Carcieri fix--that is, any legislation that would restore the Interior
    Secretary's authority to take land into trust for tribes--must be
    coupled with much-needed, long overdue reforms in the Federal
    Government's deeply flawed trust land decision-making process.
    Unfortunately, a so-called ``clean Carcieri fix,'' such as the one
    embodied in H.R. 1208, would do nothing to repair the underlying
    problems in the trust-land system and would only serve to perpetuate
    the inherent conflict of the current process--a process, incidentally,
    that is broken for all parties, tribes and local governments.
        Notably, recent action taken by the U.S. Department of the
    Interior--namely a series of updates to the Bureau of Indian Affairs'
    (BIA) fee-to-trust regulations found at 25 CFR Part 151--did nothing to
    repair the underlying flaws in the trust acquisition system. Rather,
    the Department's new regulation, which went into effect in January
    2024, further undercuts counties' already limited ability to
    participate in the fee-to-trust process. Of paramount concern to
    counties, the rule does not adequately account for--or include any sort
    of mechanism to address--the significant impacts to local governments
    and communities that often occur as a result of major tribal
    development projects, including casinos.
    The Deficiencies of the Current Trust-Land Process

        The fundamental problem with the trust acquisition process is that
    Congress has not established objective standards under which any
    delegated trust-land authority is to be applied by the BIA. The
    relevant section of federal law, Section 5 of the Indian Reorganization
    Act of 1934 (IRA), reads as follows: ``The Secretary of the Interior is
    hereby authorized in his discretion, to acquire [by various means] any
    interest in lands, water rights, or surface rights to lands, within or
    without reservations . . . for the purpose of providing land to
    Indians.'' 25 U.S.C. Sec. 465.
        This general and undefined congressional guidance, which was
    codified 90 years ago, has resulted in a trust-land process that fails
    to meaningfully include legitimate interests, provide adequate
    transparency to the public, or demonstrate fundamental balance in
    trust-land decisions. The unsatisfactory process, which is governed by
    the BIA's Part 151 regulations, has created significant controversy,
    serious conflicts between tribes and states, counties and local
    governments--including litigation costly to all parties--and broad
    distrust of the fairness of the system. Tribes deserve an efficient and
    predictable trust acquisition process that is not continually bogged
    down by controversy and legal action. Likewise, states and counties
    also deserve a process that considers their legitimate governmental
    interests.
        With 574 federally recognized tribes across the United States, no
    two fee-to-trust applications are alike. In California, we see this
    diversity firsthand with over 100 federally recognized tribes, all of
    which have unique cultural history and geography. The diversity of
    applications and circumstances across the country reinforces the need
    for both clear, objective standards in the fee-to-trust process and the
    importance of local intergovernmental agreements to address specific
    concerns.
        Notably, many California tribes are located on ``Rancherias,''
    which were originally federal property on which landless Indians were
    placed. No ``recognition'' was extended to most of these tribes at that
    time. Therefore any Carcieri-related legislation must address the
    significant issues raised in states like California and many others
    across the country which did not generally have a ``reservation''
    system and that are now faced with small Bands of tribal people who are
    recognized by the federal government as tribes and who may seek to
    establish large commercial casinos. In particular, legislation must
    ensure improved notice to counties and define the standards by which
    property can be removed from local jurisdiction. Moreover, requirements
    must be established to ensure that the significant off-reservation
    impacts of tribal projects are fully mitigated.
        It should be noted that many of the deficiencies in the trust-land
    process were reaffirmed in a quantitative analysis of all 111 fee-to-
    trust decisions by the Pacific Region BIA Office between 2001 and
    2011.\1\ The analysis found that BIA granted 100 percent of the
    proposed acquisition requests and in no case did any Section 151 factor
    weigh against approval of an application.\2\ The analysis further found
    that because of the lack of clear guidance and objective criteria,
    Pacific Region BIA decisions avoid substantive analysis in favor of
    filler considerations and boilerplate language.\3\
    ---------------------------------------------------------------------------
        \1\ (Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust
    Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law
    Review 250 (2013).
        \2\ Id., pp. 278.
        \3\ Id., pp. 286, 293, 302.

        These same conclusions were reached in a 2006 Government Accounting
    Office Report to Congress on the fee-to-trust process, which determined
    that the regulations do not provide a clear, uniform or objective
    ---------------------------------------------------------------------------
    approach. The Report found:

            [T]he regulations provide wide discretion to the decision maker
            because the criteria are not specific, and BIA has not provided
            clear guidelines for applying them. Given the wide discretion
            that exists and the increased scrutiny that the land in trust
            process has come under with the growth of Indian gaming, it is
            important that the process be as open and transparent as
            possible.\4\
    ---------------------------------------------------------------------------
        \4\ Indian Issues: BIA's Efforts to impose Time Frames and Collect
    Better Data Should Improve the Processing of Land in Trust
    Applications,'' U.S. Government Accounting Office, at pp. 36-38 (July
    2006).

        Unfortunately, the fee-to-trust process remains broken as community
    concerns are ignored or downplayed, applications are rubber-stamped at
    a 100 percent acceptance rate, and tribes and local governments are
    forced into unnecessary and unproductive conflict.\5\ Moreover, the
    deficiencies in the process could soon be amplified by the recent
    revisions to BIA's Part 151 regulations, which further streamline the
    fee-to-trust process by eliminating certain criteria and establishing
    several new presumptions of approval. Additionally, the new regulations
    establish a 120-day time frame for a Tribe to receive a final fee-to-
    trust decision. Currently, this process takes 958 days, on average, and
    while counties agree this is simply too long for Tribes to wait for a
    decision, 120 days is not a sufficient amount of time for BIA to
    comprehensively review and evaluate the impacts of an application.
    ---------------------------------------------------------------------------
        \5\ Id., pp. 292, 295, 297.
    ---------------------------------------------------------------------------
        While there are a number of major flaws in BIA's fee-to-trust
    process, one of NACo's central concerns is the severely limited role
    that state and local governments play. The implications of losing
    jurisdiction over local lands are very significant, including the loss
    of tax base, loss of planning and zoning authority, and the loss of
    environmental and other regulatory power. Yet, in practice, state,
    county and local governments are afforded limited, and often late,
    notice of a pending trust land application, and, under the Part 151
    regulations, are asked to provide comments on two narrow issues only:
    1) potential jurisdictional conflicts; and, 2) loss of tax revenues.
        Moreover, the notice that local governments receive typically does
    not include the actual fee-to-trust application and often does not
    indicate how the applicant tribe intends to use the land. Further, in
    some cases, tribes have identified a non-intensive, mundane use, only
    to change the use to heavy economic development, such as gaming or
    energy projects, soon after the land is acquired in trust.
        One measure of the severe dysfunction is that local governments are
    often forced to resort to Freedom of Information Act (FOIA) requests to
    ascertain if a trust application or a petition for an Indian lands
    determination--a key step in the process for a parcel of land to
    qualify for gaming--has been filed with the BIA. Again, despite the
    significant impact on counties, and the relevant information they hold,
    local governments do not receive notice of the filing of either a trust
    application or Indian Lands determination. Although trust applications
    are often deemed incomplete by the BIA, it is during this time that
    counties and tribes are best positioned to collaboratively address any
    concerns before receiving formal notice of a complete application and
    be given 30 days to decide whether to support or oppose the project.
    The lack of consultation is even worse with Indian lands
    determinations, as counties are not notified of the requests and are
    not allowed to comment or otherwise invited to participate in the
    process. These processes must include local participation in order to
    ensure that there is a complete factual basis upon which objective
    decisions can be made.
        While the Department of the Interior has acknowledged the increased
    impacts and conflicts inherent in recent trust-land decisions, its new
    regulations do not strike a reasonable balance between tribes seeking
    new trust lands and the states and local governments experiencing
    unacceptable impacts. Indeed, the notification process embodied in the
    new Part 151 regulations is insufficient and falls far short of
    providing local governments with the level of detail needed to
    adequately respond to proposed trust-land acquisitions. This point was
    included as a ``Recommendation for Executive Action'' in the GAO
    Report, as the Interior Secretary was recommended to direct BIA to
    revise trust regulations and ``guidelines for providing state and local
    governments more information on the applications and a longer period to
    provide meaningful comments on the applications[.]'' \6\ Regrettably,
    the 2024 regulations do not embody this important recommendation and
    state and local governments continue to have only 30 days to provide
    comments on a pending fee-to-trust application.
    ---------------------------------------------------------------------------
        \6\ GAO Report, supra. at p. 37.

    ---------------------------------------------------------------------------
    Carcieri v. Salazar--An Historic Opportunity

        On February 24, 2009, the U.S. Supreme Court issued its landmark
    decision on Indian trust lands in Carcieri v. Salazar. The Court held
    that the Secretary of the Interior lacks authority to take land into
    trust on behalf of Indian tribes that were not under the jurisdiction
    of the federal government upon enactment of the IRA in 1934.
        Because the Carcieri decision definitively confirmed the
    Secretary's lack of authority to take land into trust for post-1934
    tribes, Congress has the opportunity not just to address the issue of
    the Secretary's authority under the current failed fee-to-trust system,
    but to reassert its primary authority for these decisions by setting
    specific standards for taking land into trust that address the main
    shortcomings of the trust land-process.
        In the 15 years since this significant court decision, varied
    proposals for reversing the Carcieri decision have been generated, some
    proposing administrative action and others favoring a congressional
    approach. Today's hearing, like several hearings before it, is
    recognition of the significance of the Carcieri decision and the need
    to consider legislative action.
        We believe that the responsibility to address the implications of
    Carcieri clearly rests with Congress and that a decision to do so in
    isolation of the larger problems of the fee-to-trust system would
    represent an historic missed opportunity. Indeed, a legislative
    resolution to Carcieri that keeps the current trust-land system in
    place will be regarded as unsatisfactory to counties, local
    governments, and the people we serve. Rather than a ``fix,'' such a
    result would only perpetuate a broken system, where the non-tribal
    entities most affected by the trust acquisition process are without a
    meaningful role. Ultimately, this would undermine the respectful
    government-to-government relationship that is necessary for both tribes
    and neighboring governments to fully develop, thrive, and provide
    critical services to the people dependent upon them for their well
    being.
        Accordingly, our primary recommendation to the Subcommittee and
    Congress is this: Do not advance a congressional response to Carcieri
    that allows the Department of the Interior to continue the flawed fee-
    to-trust process. Rather, Congress should make meaningful,
    comprehensive reforms to the trust-land system that reflect the right
    to self-governance of our Tribal neighbors and which address the
    legitimate concerns of counties and other key stakeholders.
        NACo believes that the Carcieri decision presents Congress with an
    opportunity to carefully exercise its constitutional authority for fee-
    to-trust acquisitions and to define the respective roles of Congress
    and the Executive Branch in trust-land decisions. Additionally, it
    affords Congress with the opportunity to establish clear and specific
    congressional standards and processes to guide trust-land decisions in
    the future. A clear definition of roles is acutely needed regardless of
    whether trust and recognition decisions are ultimately made by
    Congress, as provided in the Constitution, or the Executive Branch
    under a congressional grant of authority.
        As we have urged for years, we respectfully ask Members of this
    Subcommittee to employ a comprehensive approach to addressing the
    implications of the Carcieri decision and the deficiencies in the trust
    land process, , namely: 1) the absence of authority to acquire trust
    lands, which affects post-1934 tribes, and, 2) the lack of meaningful
    standards and a fair and open process, which affects states, local
    governments, businesses and non-tribal communities. As the Subcommittee
    considers potential Carcieri legislation, it should undertake reform
    that is in the interests of all affected parties--both Tribes and non-
    Tribal governments alike.
    Legislative Recommendations

        1. Require Full Disclosure and Fair Notice and Transparency from
    the BIA on Trust Land Applications and Other Indian Land Decisions. The
    Part 151 regulations are not specific and do not require sufficient
    information to be furnished to affected parties regarding tribal plans
    to use the land proposed for trust status. As a result, it is very
    difficult for those parties (local and state governments, and the
    public) to determine the nature of the tribal proposal, evaluate the
    impacts, and provide meaningful comments.
        Federal law should require BIA to ensure that tribes provide
    reasonably detailed information about the intended uses of proposed
    trust land, not unlike the public information required for planning,
    zoning and permitting on the local level. This assumes even greater
    importance since local planning, zoning and permitting are being
    preempted by the trust land decision; accordingly, information about
    intended uses is reasonable and fair to require.
        Legislative changes need to be made to ensure that affected
    governments receive timely notice of fee-to-trust applications and
    petitions for Indian land determinations in their jurisdiction and have
    adequate time to provide meaningful input. Indian lands determinations,
    a critical step for a tribe to take land into trust for gaming
    purposes, is conducted in secret without notice to affected counties or
    any real opportunity for input. As previously indicated, counties are
    often forced to file a FOIA request to even determine if an application
    was filed and the basis for the petition.
        Notice for trust and other land actions for tribes that go to
    counties and other governments is not only very limited in coverage,
    the opportunity to comment is minimal; this must change. A new paradigm
    is needed where counties are considered meaningful and constructive
    stakeholders in Indian land-related determinations. For too long,
    counties have been excluded from providing input in critical Department
    of Interior decisions and policy formation that directly affects their
    communities. NACo believes counties should be provided 120 days to
    respond to land in trust applications and request that BIA provide a
    response explaining the rationale for acceptance or rejection within 90
    days.\7\
    ---------------------------------------------------------------------------
        \7\ National Association of Counties (NACo). 2024. American County
    Platform. https://www.naco.org/resources/2023%E2%80%932024-american-
    county-platform-and-resolutions

        2. Establish Clear and Objective Standards for Agency Exercise of
    Discretion in Making Fee-to-Trust Decisions. The lack of meaningful
    standards or any objective criteria in fee-to-trust decisions made by
    the BIA has been long criticized by the U.S. Government Accountability
    Office and local governments. As previously indicated, BIA requests
    only minimal information about the impacts of such acquisitions on
    local communities and trust land decisions are not governed by a
    requirement to balance the benefit to the tribe against the impact to
    the local community. As a result, there are well-known and significant
    impacts of trust land decisions on communities and states, with
    consequent controversy and delay and distrust of the process.
        Furthermore, the BIA has broad authority and discretion to make
    acquisition decisions in favor of tribes, an authority that was
    affirmed and further broadened through BIA's recent Part 151 revisions.
    To reasonably balance the interests of tribes and local governments,
    Congress should provide the Executive Branch with clear statutory
    standards that take into account the legitimate interests of both
    parties. However any delegation of authority is ultimately resolved,
    Congress must specifically direct balanced standards that ensure that
    trust land requests cannot be approved where the negative impacts to
    other parties outweigh the benefit to the tribe.

        3. Tribes that Reach Local Intergovernmental Agreements to Address
    Jurisdiction and Environmental Impacts Should Have a Streamlined
    Process. The legal framework should encourage tribes to reach
    intergovernmental agreements to address off-reservation project impacts
    by providing a streamlined fee-to-trust process when such agreements
    are in place. Tribes, states, and counties need a process that is less
    costly and more efficient. The virtually unfettered discretion
    delegated to the BIA by virtue of the Part 151 regulations, along with
    the lack of clear standards, almost inevitably creates conflict and
    burdens the system. A process that encourages cooperation and
    communication provides a basis to expedite decisions and reduce costs
    and frustration for all involved. Furthermore, counties oppose any
    federal actions that limit our ability to reach mutually acceptable and
    enforceable agreements and/or provide critical services to our
    communities.
        It should be noted that an approach that encourages
    intergovernmental agreements between a tribe and local government
    affected by fee-to-trust applications is required and has worked well
    in recent California gaming compacts. Not only does such an approach
    offer the opportunity to streamline the application process, it can
    also help to ensure the success of the tribal project within the local
    community. The establishment of a trust-land system that incentivizes
    intergovernmental agreements between tribes and local governments is at
    the heart of NACo's fee-to-trust reform recommendations and should be a
    top priority for Congress.

        4. Secretarial Determination Regarding Off-reservation Impacts--
    While there are many examples of successful collaboration between
    tribes and counties, neighboring governments will not always see eye-
    to-eye on major development projects. Therefore, in cases in which
    tribes and counties are unable to reach enforceable mitigation
    agreements with respect to potential trust acquisitions, legislation
    should require the Secretary of the Interior to undertake a
    comprehensive analysis of all anticipated off-reservation impacts in
    direct consultation with the state and affected local government(s). In
    turn, and as a condition of approving a trust acquisition, the
    Secretary should be required to certify that the applicant has taken
    steps to ensure that all significant jurisdictional conflicts and
    impacts--including increased costs of local services, lost revenues,
    and environmental impacts--have been mitigated to the maximum extent
    practicable. Counties believes that this type of Secretarial
    determination must be part of any Carcieri/fee-to-trust reform package.
    Conclusion

        Congressional action must address the critical repairs needed in
    the fee-to-trust process. Unfortunately, legislation currently pending
    in the U.S. House (H.R. 1208) fails to set clear standards for taking
    land into trust, to properly balance the roles and interests of tribes,
    state, local and federal governments in these decisions, and to clearly
    address the apparent usurpation of authority by the Executive Branch
    over Congress' constitutional authority over tribal recognition.
        We ask Members of the Subcommittee to incorporate the
    aforementioned reforms into any legislation that addresses the Carcieri
    decision. Counties' proposals are common-sense reforms, based upon a
    broad national base of experience on these issues that, if enacted,
    will eliminate some of the most controversial and problematic elements
    of the current trust land acquisition process. The result would help
    states, local governments and non-tribal stakeholders. It also would
    assist trust land applicants by guiding their requests towards a
    collaborative process and, in doing so, reduce the delay and
    controversy that now routinely accompany acquisition requests.
        Thank you for considering these views.

                                     ______

         Questions Submitted for the Record to the Hon. David Rabbitt,
                 Supervisor, Sonoma County Board of Supervisors
                 and Member of National Association of Counties

                Questions Submitted by Representative Westerman

        Question 1. Can you expand from your testimony on how
    intergovernmental mitigation agreements between tribal and local
    governments have benefited land-into-trust projects? And have you seen
    a specific benefit to tribal gaming projects that include these
    intergovernmental mitigation agreements?

        Answer. In Sonoma County and other jurisdictions, the development
    and approval of intergovernmental mitigation agreements have greatly
    benefited land-into-trust projects, particularly in the case of
    proposed gaming operations. While I describe in greater detail Sonoma
    County's experience in this regard (please see the answer to question
    2), to follow are a number of examples in California that illustrate
    how mitigation agreements have yielded favorable outcomes. In all cases
    in which county and tribal leaders have come together, the result has
    been enhanced respect and renewed government-to-government
    partnerships.
        In Yolo County, the Board of Supervisors has a long history of
    working with the Yocha Dehe Wintun Nation to ensure adequate services
    in the area where the tribe's casino is operating. In addition to
    reaching an agreement for the mitigation of off-reservation impacts
    resulting from the tribe's casino expansion and hotel project, Yolo
    County has entered into agreements with the tribe to address impacts
    created by other tribal trust-land projects in the county.
        In southern California, numerous tribes in San Diego County have
    worked with the county sheriff's department on law enforcement-related
    issues in communities where tribal casinos are located. Additionally,
    San Diego County has entered into agreements with several tribes to
    address transportation impacts created by various land-into-trust/
    casino projects.
        On a broader scale, San Diego County and the Santa Ysabel Band of
    Digueno Indians reached a comprehensive agreement back in 2005 that
    paved the way for the tribe to construct a new large-scale gaming
    complex. The tribe's chairman hailed the agreement as a model for
    future pacts between tribes and government entities.
        In northern California, Humboldt, Placer, and Colusa Counties have
    memorandums of understanding in place with various tribes to address
    law enforcement-related issues. In the case of Humboldt County, the
    Board of Supervisors also signed agreements with several tribes
    regarding the operation of a court facility/sub-station and library.
    Additionally, Humboldt County and several tribes have agreed to a
    cooperative approach for seeking federal assistance to increase water
    levels in nearby rivers, and have reached accords with regard to road
    improvements.
        Madera and Placer Counties also have reached comprehensive
    agreements with the tribes that operate casinos in their communities.
    While these intergovernmental agreements provide differing approaches
    to mitigating off-reservation impacts of Indian casinos, each is
    effective in addressing the unique concerns of the community in
    question.
        Finally, in Santa Barbara County, a tribe that completed a
    significant expansion of an existing casino negotiated with the county
    a mitigation agreement to address ingress/egress and flood control
    issues that arose as a result of the casino's expansion. Santa Barbara
    County and the tribe continue to address impacts caused by the tribe's
    development of its trust land on a case-by-case basis, reaching
    intergovernmental agreements where possible.
        The takeaway is that intergovernmental partnerships--memorialized
    by cooperative agreements that address the specific impacts of tribal
    development projects--benefit tribes, counties, and local communities
    and facilitate the fee-to-trust process by helping parties avoid costly
    litigation.

        Question 2. During your testimony, you mentioned your county has
    had successful intragovernmental projects with tribes due to the
    presence of information up front during the land-into-trust process.

        2a) Please share with the committee specific examples of successful
    intergovernmental projects that have benefited from an open exchange of
    information that you were involved in, or you are aware of.

        Answer. Sonoma County has five federally recognized tribes within
    its boundaries: the Dry Creek Rancheria; Lytton Rancheria; Federated
    Indians of Graton Rancheria (FIGR); Kashia Band of Pomo Indians; and,
    the Cloverdale Rancheria. Except for Cloverdale Rancheria, all of these
    tribes have federally established reservation lands, or ``trust
    lands,'' within Sonoma County.
        Three of these tribes have intergovernmental agreements with the
    County intended to mitigate the off-site impacts of various on-
    reservation development projects. These intergovernmental agreements
    also address other important issues. The agreements reflect a mutual
    understanding of the importance of addressing the impacts of tribal
    development projects while furthering respectful and mutually
    beneficial government-to-government relationships.
        In the case of the Dry Creek Rancheria, the Tribe operates the
    River Rock Casino near Geyserville, CA. On February 28, 2023, the Board
    of Supervisors approved an amended and restated Memorandum of
    Understanding (MOA) between the Tribe and the County. The financial
    terms under the restated MOA provide for an annual baseline payment of
    $750,000 to offset the costs related to County services impacted by
    operations on the Dry Creek Rancheria.
        With regard to The Lytton Rancheria, the Tribe does not operate a
    gaming facility in Sonoma County, but does possess a reservation of
    over 500 acres outside the Town of Windsor. A tribal housing
    development project is currently under construction, with a winery and
    resort development planned for the future. The County entered into an
    MOA with the Lytton Rancheria on March 10, 2015 to establish a
    framework for government-to-government relations, address the impacts
    of the proposed residential housing development, and establish
    parameters and processes for addressing the impacts of potential future
    tribal development.
        Finally, the Federated Indians of Graton Rancheria currently
    operate the Graton Casino located in Rohnert Park. On June 6, 2023, the
    Board of Supervisors approved an Amended and Restated Intergovernmental
    Mitigation Agreement (IMA) between the Tribe and the County. The IMA
    provides $14,500,000 per year, adjusted annually for CPI, to mitigate
    impacts of the gaming facility in a number of key areas, including:
    law, justice and public safety; health and human services; traffic,
    transportation, and road maintenance; affordable housing; greenhouse
    gasses and air quality; fire and emergency services; groundwater and
    water conservation projects; tourism impacts; and, socioeconomic
    impacts.

        2b) Are you aware of any tribal gaming projects that have benefited
    from this way of operating, and, if yes, how did that benefit the
    project?

        Answer. As previously indicated, the Federated Indians of Graton
    Rancheria currently operate a casino in Rohnert Park. According to the
    Tribe's leadership, the revenue from the gaming project allows the
    Tribe to provide programs and services to Tribal Citizens to help them
    realize their dreams of self-sufficiency. Absent transparency and
    cooperation at the local level and without a mitigation agreement in
    place that offsets impacts on public services, projects such as the
    Graton Casino typically face increased scrutiny and community
    skepticism, if not widespread opposition from local government and
    community stakeholders. Based on our experience in Sonoma County, we
    strongly believe that tribes--and the projects they operate--as well as
    local governments and the surrounding community greatly benefit when
    intergovernmental partnerships result in agreements that recognize the
    impacts of developments projects.
        Additionally, and expanding upon the aforementioned Yolo County
    example, I'd note that the County and the Yocha Dehe tribe did not
    always have a positive and productive working relationship. Rather, the
    parties remained at odds for years over the tribe's proposed Cache
    Creek Casino Resort expansion project. After much negotiation, however,
    the parties entered into an agreement that allowed the project to move
    forward. The comprehensive agreement addresses a number of key issues,
    including the mitigation of gaming-related impacts, including language
    addressing transportation needs, law enforcement, and fire and
    emergency services.

        Question 3. You testified during the hearing that state and local
    governments would prefer a 120-day window to submit comments during the
    land-into-trust process. Could you elaborate further on the benefits of
    a longer comment period?

        Answer. Many fee-to-trust acquisitions--particularly for large-
    scale economic development projects--result in significant impacts to
    the surrounding community. Accordingly, it is essential that counties
    thoroughly consider and examine the potential ramifications of any
    tribal development project, particularly as it relates to the health,
    safety, and welfare of community members.
        I'd note that as part of the typical zoning, planning, and
    permitting process at the local level, counties are responsible for
    conducting public outreach and engagement in order to determine how
    proposed development projects will impact the community. In doing so,
    counties must consider a whole host of issues, including land-use
    compatibility, ingress-egress, jurisdictional matters, transportation,
    environmental impacts, and many other issues. This process is highly
    complex and takes time.
        As I indicated in my written testimony, federal law should require
    the BIA to provide jurisdictional governments with detailed information
    regarding proposed trust land acquisitions, not unlike the public
    information required for local planning, zoning and permitting. This
    assumes even greater importance since local ordinances and laws are
    ultimately preempted by trust-land decisions. In order to provide
    counties, our jurisdictional partners, and local communities with
    sufficient opportunity to evaluate potential impacts in their entirety,
    NACo policy calls for 120 days for parties to review and comment on a
    pending fee-to-trust application.

        Question 4. Is there anything else you would like to add to your
    written testimony on how the Department of the Interior's fee-to-trust
    process should be reformed to benefit tribes and state and local
    governments?

        Answer. For 15 years, tribes and counties--along with other
    stakeholders--have been urging Congress to address the implications of
    the Carcieri v. Salazar decision. It is long past time for lawmakers to
    act.
        Moving forward, Congress must pass a single legislative remedy that
    accomplishes two essential objectives: put all tribes on equal footing
    as it relates to the opportunity to have land taken into trust; and,
    establish a fair and balanced trust-land system that takes into account
    the legitimate interests of local governments and the communities they
    serve.

                                     ______

        Ms. Hageman. Thank you very much. We appreciate your
    comments and your insight, as well as your personal experience.
        I will now recognize Members for 5 minutes of questioning,
    and I will start with me.
        Since the Carcieri decision was issued in 2009, it has been
    unclear how many tribes could be affected by that decision. And
    I think for policymakers it is helpful to know the breadth of
    this particular problem. I am going to direct this question to
    Ms. Isom-Clause.
        Does the Department know how many federally recognized
    tribes would not be considered ``under Federal jurisdiction''
    pursuant to the Carcieri decision?
        Ms. Isom-Clause. Thank you for the question, Chair Hageman.
        We look at these tribe by tribe, so we don't have kind of
    one centralized list that would have all of that. It is a very
    fact-intensive and specific dive into the complicated history
    of the relationship between----
        Ms. Hageman. So, even after 15 years, the Department has
    not yet determined how many of our 574 recognized tribes would
    be impacted by this decision?
        Ms. Isom-Clause. Well, I would also say all tribes are
    impacted by this decision, because every tribe is required to
    go through this analysis. Some may have kind of more clear
    facts and some have more complicated facts, but there is always
    an expansion of government resources, tribal resources, and
    risk of litigation. So, everyone is impacted. Some have more
    complicated histories that take longer to wade through.
        Ms. Hageman. OK. What type of land-into-trust applications
    tend to draw the most concern or opposition?
        Ms. Isom-Clause. Well, we have we have heard from the
    Supervisor that gaming applications tend to draw more concern.
    But I will note that the majority of fee-to-trust applications
    are on reservation, non-controversial, and it is only a tiny 1
    to 3 percentage, at most, that are gaming.
        Ms. Hageman. But you would agree that the gaming projects
    are the ones that tend to be the most controversial.
        Ms. Isom-Clause. In some cases they are. And when there are
    comments, there is an additional review process.
        I want to separate out the fee-to-trust process and gaming,
    because the fee-to-trust process is an entirely separate
    process. If a tribe wants to take land into trust for gaming,
    there is a separate process to go through to determine whether
    that land is eligible for gaming. That is another comment
    period. There is another NEPA review. So, the fee-to-trust
    process is one opportunity for comment; the gaming process is
    an entirely different one.
        Ms. Hageman. And Mr. Rabbitt, I would like to follow up on
    the testimony that you were providing near the end there. You
    mentioned the success of intergovernmental mitigation
    agreements in California related to gaming compacts. Can you
    expand on how this approach has been beneficial?
        Mr. Rabbitt. Oh, yes, like I said, we have five agreements.
    We have agreements with all five within our county.
        There is one within my district, the Federated Grayton
    Tribe Rancheria, with a large casino. But prior to that casino
    and that land being taken into trust, we did have an agreement
    with the Tribe to identify certain known impacts,
    transportation for instance, and there was an agreement with
    our local transportation authority to make sure that we had
    access to the property. Groundwater was a concern, residents
    around the site had very shallow wells and spotty groundwater.
        So, we had independent, third-party folks come in to
    monitor that groundwater to make sure there are no impacts in
    the future, but it is just those kinds of things that we put in
    place prior that made for a much smoother process and, quite
    honestly, alleviated the concerns around the neighborhood and,
    I think, made the project that much more successful.
        Ms. Hageman. OK. So, you would agree that, with these kinds
    of mitigation agreements, it tends to allow for the process to
    move forward more quickly as the community itself can
    understand what the benefits may be?
        Mr. Rabbitt. That has always been my experience. And,
    again, as an architect, I can tell you that if someone is going
    through and wanting to build something that everyone is up in
    arms with, you are more likely to have a slower process, you
    are more likely to end up in litigation than if you go through
    and actually meet with people prior and come to an agreement
    about what that should be.
        Ms. Hageman. What happens in those circumstances when a
    mitigation agreement cannot be reached between a tribe and a
    local government?
        Mr. Rabbitt. We totally think that there should be a
    Secretarial determination to make sure that those impacts were
    properly mitigated. We just want to be part of that
    conversation. We want to have that opportunity, and we think it
    needs to be a meaningful time frame to make sure that we can
    opine and run that by all the different districts, perhaps,
    that are also going to be putting services forward.
        For instance, in the casino that I mentioned, law
    enforcement was not part of the Tribe's purview, nor was the
    fire department. So, those were important agreements to get
    into place prior to having thousands and thousands of people on
    a piece of property----
        Ms. Hageman. Well, just very, very quickly, the Department
    of the Interior recently updated its Part 151 regulations
    governing the fee-to-trust process. Do the revisions address
    any of the issues that counties and localities have raised
    about the fee-to-trust process over the years?
        Mr. Rabbitt. As quickly as I can, I would say no.
        Ms. Hageman. OK. I will now recognize the Ranking Member
    for 5 minutes of questioning.
        Ms. Leger Fernandez. Thank you very much, Madam Chair.
        Chairman Pierite and Chair Bryan, I want to ask a couple of
    questions about the fact that there are issues that were raised
    about the importance of communication, collaboration, and
    input. Can I ask each of you if, in the fee-to-trust
    applications you have engaged in, did you go through those
    kinds of interactions and feedback with local governments and
    with interested parties?
        We will start with Chair Bryan.
        Ms. Bryan. Yes, we have actually engaged with those
    counties any time they have a comment period to go through if
    you put land into trust, so they have an opportunity to voice
    their concerns or any questions they may have.
        But I will tell you from our experience, we have almost
    given back $37 million to local communities. We know what it is
    like not to have much. So, it is important for us to give back.
    And it has always been a goal for me, as a leader, to work
    collaboratively together with the counties, the cities, and the
    state because we are a part of those communities. And if we
    work collaboratively together, and we have MOUs with the
    various counties, and we also have their support of Montgomery
    County, Elmore County, Escambia County, the cities where we are
    located. So, we have definitely improved that communication and
    that ability to work with the surrounding areas.
        Ms. Leger Fernandez. Thank you.
        Chairman Pierite?
        Mr. Pierite. Yes, Tunica-Biloxi went through the same
    process. Early on, we established the collaboration, as well as
    cooperation, and having an understanding on what gaming will
    bring to not only Tunica-Biloxi, but of Avoyelles Parish, as
    well as central Louisiana, the jobs that we create.
        And this is not only about developing our understanding
    about job creations, it is about providing hope, providing a
    purpose not only for the tribal community, but for the overall
    community, and developing and building that understanding we
    have done at a very early stage.
        And our relationship with central Louisiana of the non-
    tribal community is part of our extended family and vice versa.
        Ms. Leger Fernandez. Thank you, and I think that the
    letters of support that you have submitted exemplify that.
        And I think it is really important that these bills we are
    talking about today aren't about what the process should be. If
    I am understanding it, the bills we are talking about is that
    your 2 tribes and all the 548 tribes should be treated equally,
    right?
        Is that how you see the bills that we are addressing today,
    that you want to be able to go through the same process as
    every other tribe when you are seeking to take land into trust,
    Chairman?
        Mr. Pierite. Yes, ma'am. That is accurate. We are in
    support of a full Carcieri fix for all 574 tribal governments,
    and as well as the Acts the Congress, not to put an emphasis on
    the 1 percent that is for the gaming and that is land into
    trust for gaming, but the 99 percent. That is what the emphasis
    should be on. That is where the focus should be on, because
    that 99 percent can be utilized for advanced manufacturing, for
    textiles.
        If you look at the lay of the land over the last 30 years,
    Tunica-Biloxi just celebrated 30 years in gaming. But at the
    same time, during the 30 years, over 11.2 million jobs,
    advanced manufacturing jobs, left the United States.
        Ms. Leger Fernandez. Right.
        Mr. Pierite. Thousands of textile jobs left the United
    States. Tribes can bring them back.
        Ms. Leger Fernandez. Thank you. I think that both of the
    tribal leaders' testimony today, which are the most important
    ones that we must listen to, actually emphasize the need to
    take into land for other purposes and this addresses that.
        Ms. Kathryn Isom-Clause, I was just out meeting with Taos
    Pueblo. Will the passage of this bill change any of the laws
    and regulations regarding land into trust for gaming?
        Ms. Isom-Clause. Thank you for your visit to Taos Pueblo,
    first of all. I am glad you were able to be there.
        No, this will not change any of the fee-to-trust
    applications. It is only a threshold question of whether the
    Secretary has authority to take land into trust for a tribe. If
    so, then we can proceed through the entire regulatory process
    it takes.
        Ms. Leger Fernandez. And I have run out of time, but I
    wanted to just get this $10 million for just one tribe on
    litigation. Will the passage of these bills save the Department
    money?
        Ms. Isom-Clause. Yes.
        Ms. Leger Fernandez. Thank you, and I yield back.
        Ms. Hageman. Thank you. The Chair now recognizes Mr. Carl
    for 5 minutes of questioning.
        Mr. Carl. Thank you.
        Chairwoman Bryan, three quick questions. It is rapid fire
    here, so get ready.
        [Laughter.]
        Mr. Carl. I keep hearing ``gaming'' popping up here. Are we
    talking about gaming on our bill that we are looking at, H.R.
    6180?
        Ms. Bryan. Absolutely not. This is about parity and all
    tribes being treated equally, actually.
        I think, as the Interior stated, there is IGRA that you can
    go through for the gaming process. And we heard from the
    champion on this Carcieri fix, Congressman Cole, that it is
    about 1 percent that is to do with gaming.
        Mr. Carl. Right.
        Ms. Bryan. Less than 1 percent. So, this is not to do with
    gaming.
        Mr. Carl. When you look at Poarch Creek, and I have been a
    County Commissioner for 8 years, so I understand the permitting
    process, I understand your developments on the properties that
    we are talking about here. I just want to say it is always
    first class. You all are a five-star Michelin group. Everything
    you all do is first class or not at all. What you all do for
    our community is priceless. And I am not talking about just
    community, I am talking about the entire state. Most people
    don't realize how many different companies actually have sprung
    from a simple group of folks in Atmore, Alabama that has
    remained simple, and I think that is very important. They have
    not forgotten everyone in the process.
        Could you elaborate on how the Poarch Creek bill will
    enhance the Tribe's ability to serve the community?
        Ms. Bryan. It would actually give us the ability to place
    land into trust for housing, for a nursing home to take care of
    our elders who sacrificed all those years that didn't have
    much. That would allow us an opportunity to meet the demanding
    needs of our community going forward.
        Mr. Carl. And you all do an incredible job. I came and saw
    the Boys and Girls Club situation 2 years ago, 3 years ago.
    And, of course, I have been there for several situations.
        Ms. Bryan. That services over 500 children, and only 10
    percent are tribal members.
        Mr. Carl. Yes.
        Ms. Bryan. It services the community, not just the Poarch
    Band of Creek Indians.
        Mr. Carl. And Atmore is a very small community. It truly
    is, the city of Atmore itself. And I know how you work with the
    County Commission and the city there.
        Can you discuss the relationships the Tribe has developed
    with the county bordering the trust lands, which would be
    Mobile County, obviously, Escambia County, Washington County?
        Ms. Bryan. Absolutely. We have given to the counties
    financially. We have MOUs with them. But most importantly, we
    collaborate together to use our tribal dollars along with the
    county dollars to help with infrastructure, to maintain roads,
    build roads. We have a great relationship with the counties.
        And I will tell you this. The letters of support that are a
    part of the written testimony, you will see that those counties
    are so grateful and appreciative because we do help provide
    fire protection, drug task force, we support the drug task
    force, we are also working with them on some issues that all of
    America is facing, which are mental issues. We are actually in
    the process of helping build, hopefully, a rural hospital. We
    are trying to collaborate together to build a rural hospital
    because with the old one, the maintenance fees are so
    exorbitant. So, we are in the process of actually working to do
    those types of things within our communities and counties.
        Mr. Carl. So, just for the record, I have been working with
    the County Commission there in Escambia County. We were going
    to replace a bridge, Poarch Creek stepped up, they are going to
    actually put the money up with a little bit of help, I hope,
    from my folks. But we were able to shift that county money that
    was earmarked for that, actually, to another road project. So,
    I know the county is happy. They should be.
        And our rural health care in America as a whole is
    horrible. But again, I know Poarch Creek well enough. They are
    not going to let the health in that area go down. And we do
    have some problems there and, of course, the whole county, so I
    appreciate any help you all are willing to step up on the
    health care portion with the hospitals.
        With that, Madam Chair, I turn back. Thank you.
        Ms. Hageman. Thank you, Mr. Carl. The Chair now recognizes
    Representative Radewagen for 5 minutes of questioning.
        Mrs. Radewagen. Thank you, Madam Chairwoman. I would like
    to yield my time over to the Chairwoman.
        Ms. Hageman. Thank you. I would like to get into a bit more
    detail about the nature of the Carcieri fix that we are talking
    about, and I would like to direct my questions to Chairman
    Pierite, as well as Tribal Chair, Ms. Bryan.
        Mr. Chairman Pierite, do you think legislatively reforming
    the fee-to-trust process along with a Carcieri fix would
    benefit both tribes and local communities? And if so, how?
        Mr. Pierite. It would benefit both tribes. But the Act
    today is for a legislative fix, a Carcieri fix for all tribes.
    And I don't want to be on record leaving any tribes behind.
    Everything we do, we have to do as a family. Because yes, we
    are 574 distinct tribes, individually tribes, but we are one
    tribal family, we are one Indian Country. And by having a clean
    Carcieri fix, it will allow us to simplify the process of
    getting land into trust, and bringing land into trust will
    allow us to get ahead of the game as far as economic
    opportunities.
        I mentioned before about the United States being the
    greatest country in the world, but the biggest assets in the
    United States are the 574 tribal governments, because those 574
    tribal governments, working together with a united effort, can
    bring manufacturing back to this great country.
        And, again, I mentioned 11.2 million jobs have migrated
    over the last 30 years. And we have not only positioned
    ourselves to fill that gap, but again, it is not only about job
    creation, it is about building hope for the next generation.
        It is also about establishing passion, establishing
    purpose, aligning purpose for our next generation of workers,
    that they have purpose for it to become who they choose to
    become by creating that hope, believe in that dream, and having
    that ability to put the land into trust, having the ability to
    work with Congress, work with the local as well as state
    agencies to provide economic opportunities for all, not just
    for tribal employees or tribal citizens.
        Ms. Hageman. But for the local communities, as well?
        Mr. Pierite. Yes, ma'am.
        Ms. Hageman. OK. And Ms. Bryan, could you please address my
    question as to whether reforming the fee-to-trust process along
    with the Carcieri fix, how would that benefit both tribes and
    the local communities?
        Ms. Bryan. I do want to be clear that the Poarch Band of
    Creek Indians, we have been very supportive of a national fix
    for 15 years since the decision was made. And we are very
    supportive, and we will continue to be very supportive.
        But Congress has passed bills that address certain tribes,
    so we took the parallel approach to do a Poarch-specific bill
    because the national fix continues to get stalled, and hasn't
    passed for 15 years. So, that is the reason why.
        This is nothing new to Congress. They have passed
    individual bills before for tribes. So, we decided that, now
    that we have the support of our Alabama Delegation and all the
    great things that we are doing, we have diversified our
    portfolio with over 40 different companies that has nothing to
    do with gaming.
        And we have been afforded those opportunities because we
    have worked with our state, we have created jobs, have
    contracts with NASA, Department of Defense. So, we just want to
    remove the cloud that is over the Tribe of uncertainty because
    of the Carcieri decision. So, this will be very helpful for us
    to remove that cloud of uncertainty and provide benefits that
    we need for our people.
        Ms. Hageman. OK. Thank you.
        The Chair now recognizes Jenniffer Gonzalez-Colon for her 5
    minutes of questioning.
        Mrs. Gonzalez-Colon. Thank you, Madam Chair, and good
    morning, everybody here.
        Deputy Assistant Secretary, to what extent has the Carcieri
    decision increased the need for the Department to defend land-
    into-trust decisions in the Court?
        Ms. Isom-Clause. Thank you for the question.
        We know that at least 12 Federal court cases have been
    brought, and over 20 cases before the Interior Board of Indian
    Appeals since the Carcieri decision. And as we know, Federal
    court litigation can take years, maybe 2 years, maybe 10 years.
    And the IBIA also can take up to 5 years to issue a decision,
    which can then be appealed to Federal court and be another case
    for us to litigate.
        Mrs. Gonzalez-Colon. Have the tribes reported to the
    Department that they are facing more litigation challenges
    since this case?
        Ms. Isom-Clause. Yes, absolutely.
        Mrs. Gonzalez-Colon. And are there any concerns that H.R.
    6180 or H.R. 1208 could lead into unintended consequences?
        And what recommendation, if any, does the Department have
    for either bill?
        Ms. Isom-Clause. Thank you for the question.
        The Carcieri fix would restore the status quo that was
    working for 75 years, and it would be returning to settled
    expectations. So, we don't foresee any consequences that would
    not be intended, but merely a settling of expectations again.
        Mrs. Gonzalez-Colon. And you don't have any recommendation
    for any of those bills?
        Ms. Isom-Clause. We just support both bills.
        Mrs. Gonzalez-Colon. So, no amendments to any of them?
        Ms. Isom-Clause. No, no amendments. Thank you.
        Mrs. Gonzalez-Colon. I was reviewing, and I would like to
    know how the Department of the Interior sought to address the
    concerns of state and local governments who believe, whether
    rightly or wrongly, that they do not have enough involvement in
    the land-into-trust application process.
        Ms. Isom-Clause. Well, as we have mentioned here, we have
    recently gone through a rulemaking process with the 151
    regulations. We received hundreds of comments on those, all of
    which were addressed as part of the process, and many were from
    states and local communities about our process.
        We made changes from the proposed rule to the final rule
    based on those comments. We kept in a comment period, a
    notification and comment period, even for on-reservation
    acquisitions, just to ensure that everyone is able to be heard
    when they need to be. If those comments are submitted, we will
    consider them.
        Mrs. Gonzalez-Colon. I will have a question for Supervisor
    Rabbitt.
        How will having more information up front about the land
    acquisition application benefit both tribes and counties during
    the Part 151 process?
        Mr. Rabbitt. I am sorry. Having more information?
        Mrs. Gonzalez-Colon. Yes.
        Mr. Rabbitt. Oh, I think having more information and,
    really, having that communication is vitally important.
        And I do recognize that, and again I have made mention of
    my own county, that individual counties and individual tribes
    certainly do have excellent relationships. You have heard some
    of those examples here today. But, unfortunately, it is not
    universal, and Congress does have a unique opportunity to fix a
    broken process and encourage successful intergovernmental
    mitigation agreements and, I think, also streamline the
    process.
        Honestly, by fixing one word I don't think you take care of
    half of the problem that is in front of you, and I do think
    that our county is a good example of having those
    relationships, having those intergovernmental agreements in
    place, and having successful projects and successful tribal
    projects because of it.
        Mrs. Gonzalez-Colon. You said in your testimony that any
    legislation to restore the Interior Secretary's authority, and
    I quote, ``much-needed, long-overdue reforms in the Federal
    Government, deeply flawed trust land decision-making process.''
    Could you elaborate on this and discuss some of the proposals
    you believe Congress should enact to reform the land trust
    process?
        Mr. Rabbitt. I think part of that is some of the noticing
    requirements. Even with the 151 changes that were made, they
    are really not transparent. They really don't give enough
    notice.
        We would need to reach out not just to the community, but
    to the districts that might be involved: fire districts, water
    districts, whomever they might be that might be impacted or
    affected by taking that land into trust. They should have an
    opportunity to provide some input on that and for the Secretary
    to take that all into consideration.
        But with the short time period, the lack of transparency,
    counties are sometimes, honestly, the last to know. And we just
    believe that we need to be at the table, having a conversation,
    understanding what these impacts are all about.
        And I will be honest. In our county, and I can't speak for
    all counties, and I know I am here as a NACo representative, it
    is not always about the money. There are those services that
    still need to be provided, and there are the impacts that need
    to be mitigated, and the two don't always go hand in hand, but
    they need to be taken into consideration.
        We have had successful projects because we sat down and had
    those agreements beforehand. It is great that the tribes in our
    county volunteered to do that, but right now there is no
    requirement for the tribes to sit down and do that, or for the
    counties, for that matter. And we just think here is an
    opportunity, and we have been saying this for 15 years as well,
    because we totally accept the fact that the Carcieri is a
    broken system and it creates, unfortunately, two classes of
    tribes, and that is all wrong. We would love to see it fixed,
    but we would like to see it fixed with the additional
    conditions that really encourage that conversation, that
    collaboration, all the things that we talk about that have
    happened, but just make sure that we can encourage that and
    have that be universal across the country.
        Mrs. Gonzalez-Colon. Thank you, Supervisor.
        My time expired, I yield back.
        Ms. Hageman. Thank you. The Chair now recognizes Chairman
    Cole for 5 minutes of questioning.
        Mr. Cole. Thank you very much, Madam Chair, and it is very
    generous of you. Again, thank you for allowing me to
    participate in your hearing today.
        Chairwoman Bryan, let me ask you. And you alluded to this,
    but I am going to ask you to think a little more broadly about
    the total cost that the Tribe absorbed through the Carcieri
    since the Carcieri decision in terms of, obviously, the cost of
    legal representation, but also delayed projects, things that
    weren't done that could have been done. Do you have any kind of
    estimate for what that has done to the Poarch Creek Nation?
        Ms. Bryan. I will tell you, I have with me our Attorney
    General. The $10 million that I shared with you, it is probably
    more than that, I would say, because of the hours that our
    Attorney General, I don't know how many hours she has logged,
    but we have several attorneys that in-house have had to work on
    this to take away from those resources that we needed to
    address internally for our tribal government. We had to pull
    our attorneys off and put them on these cases because it was
    that important to our Tribe.
        And that $10 million, every day that is what motivates me,
    is helping people improve their quality of life and giving them
    opportunity, giving them the tools that they need and
    opportunity for advancement. So, that $10 million would have
    done so much for our community, it would have saved a lot of
    time from our legal department. We would have used that $10
    million, we are in the process of building an elder care center
    where we feed our elders lunch. So, that $10 million could have
    done a lot for our members and our citizens.
        Mr. Cole. And these are costs you would not have had, had
    it not been for the Carcieri decision. In other words, you
    weren't expending these kind of resources before that decision
    in 2009.
        Ms. Bryan. No, sir, we weren't.
        Mr. Cole. So, that is why the system is broken, in my view,
    Madam Chair. It is really a court decision that has caused the
    problem.
        Ms. Bryan. It has cost the Federal Government, taxpayers'
    dollars, too, as well, because Department of the Interior,
    Department of Justice, you know, they have to travel. They have
    to have attorneys work on it, travel to the 11th Circuit. So,
    it is costing tribes and the Federal Government a lot of money
    on these frivolous lawsuits.
        Mr. Cole. Let me go, if I may, to Deputy Assistant
    Secretary, I hope I get it right, Isom-Clause.
        Ms. Isom-Clause, would you have a rough estimate of how
    many cases have been brought contesting BIA trust acquisition
    approval because of Carcieri?
        Ms. Isom-Clause. Yes. Thank you for the question,
    Representative.
        Our rough estimate is at least 12 Federal court cases and
    over 20 cases before the IBIA have been brought since the
    Carcieri decision.
        Mr. Cole. And when you get into one of these suits, and I
    know some of them are still ongoing, but how long does it take
    you to actually work through that and come to a settlement, on
    average?
        Ms. Isom-Clause. At minimum, 2 years. We know it has been
    up to 10 years in some cases, and that is in Federal court. And
    in the IBIA it can be up to 5 years for the court to issue a
    decision, which can then be followed by a challenge in Federal
    District Court if the agency's decision is upheld.
        Mr. Cole. And is there any way you could tell us how did it
    work pre-Carcieri and post-Carcieri?
        How much more difficult, if at all, it made it for the
    Department to come to relatively speedy decisions in these
    matters?
        Ms. Isom-Clause. Sure. I mean, it is difficult to estimate
    exactly the time because it varies so much. But typically
    through the process we go through title reviews, environmental
    reviews, regulatory reviews, and then we add on this extra
    layer of a legal review of whether a tribe is under a Federal
    jurisdiction. So, that is researching the tribe's history and
    documents, maybe going back to the tribe for more information,
    which can take some months to get through that process. And
    then, as you have mentioned, tacking on added litigation on the
    back end.
        Mr. Cole. I am trying to remember, Madam Chair, and I would
    need to check this out, but the Indian Reorganization Act, I
    think, listed fewer than 200 tribes that were recognized at the
    time. I recall it being more like 130. So, if there are 570-odd
    tribes out there, we put a lot of people that for years had
    been moving land into trust operating under one set, and this
    was precedented under Democrats and Republicans, there was no
    difference, the Secretary was moving along. So, this is one
    where the Supreme Court really did throw a wrench in the works,
    so to speak, and made it very difficult.
        I just want to end with this. I think you could multiply
    what these tribes have gone through dozens, if not hundreds of
    times, that other tribes have dealt with this. Again, it wasn't
    broken before. I don't think this fixed it, it made it a lot
    worse. And we can look at other things, but I think we ought to
    look at restoring what existed and worked before, and did not
    cost tribes huge delays and millions of dollars' worth of
    litigation, and not to mention the uncertainty that comes when,
    literally, you are contested as to whether or not your land is
    actually protected or not.
        With that, thank you again for the hearing. I really,
    really appreciate it. Thank you for allowing me to participate.
    I yield back.
        Ms. Hageman. Chairman Cole, you make a compelling case, and
    your insight and history has been invaluable today.
        Mr. Cole. Thank you.
        Ms. Hageman. So, thank you for being willing to join us. I
    know that you have other commitments, and in fact, I believe
    you are chairing another Committee right now, as we speak.
        [Laughter.]
        Mr. Cole. Yes, I am.
        Ms. Hageman. So, you are kind of magical, too, which is
    always nice.
        The Chair now recognizes Chairman Westerman for 5 minutes
    of questioning.
        Mr. Westerman. Thank you, Madam Chair, and to the
    witnesses, and I also wanted to thank my friend, Chairman Cole,
    for taking time out of a very, very busy schedule this week. We
    have three appropriation bills on the Floor, but you know this
    issue is important to him because he took time to come over to
    the Natural Resources Committee to be involved, as he has been
    very involved all along.
        Ms. Isom-Clause, over the past decade there have been some
    that have questioned whether there are standards or limits on
    the Secretary's authority to place land in trust, pursuant to
    the Indian Reorganization Act. In previous years, the
    administration has pointed to its 151 regulations.
        So, my question to you: Are there statutory limits on the
    Secretary's authority to place land into trust for tribes?
        Ms. Isom-Clause. Well, the IRA, of course, authorizes the
    Secretary to take land into trust. It is not a limit, but an
    authorization. And then our regulations provide the guidelines
    of all of the factors that need to be met in terms of
    documentation and legal reviews and regulatory reviews. So,
    that kind of provides our limits and how we look at
    applications.
        Mr. Westerman. But can't regulations change from
    administration to administration?
        And aren't these really self-imposed regulations?
        Ms. Isom-Clause. Yes, they can change, and the Department
    issues the regulations. So, yes, we impose them on ourselves.
        Mr. Westerman. So, could the Department change the
    regulations and do a better job now than what is being done?
        Or do you think there needs to be a bigger fix by Congress
    for the Department to be able to do their job correctly?
        Ms. Isom-Clause. Thank you for the question.
        Our testimony today is focused on Carcieri, which we hope
    it can be separated from the land-into-trust process by just
    kind of knocking out this threshold question of the Secretary's
    authority.
        We did just go through a process to update our 25 CFR Part
    151 regulations, which has taken place over the last few years.
    It has involved many tribal consultations and public comment
    periods, many, many comments that we received from local
    communities, states, and tribes, and we did our best in taking
    that all into account and trying to streamline the process and
    make it more efficient and better overall for tribes.
        Mr. Westerman. Talking about making it more efficient, how
    were concerns from states and local communities taken into
    consideration during the land-to-trust process?
        Ms. Isom-Clause. States and local communities are given 30
    days of notice and opportunity to comment, and any of those
    comments that are submitted are taken into account as part of
    the application.
        Mr. Westerman. I guess it can be a broad range of comments
    and issues. Are there requirements for the Department to take
    local concerns about zoning, land use, or other similar issues
    into consideration?
        Ms. Isom-Clause. Yes, that is specifically part of the
    regulations, that we do take that into consideration.
        And, again, the vast majority of land-into-trust
    applications are not controversial. They are often on-
    reservation, consolidating tribal land holdings. So, kind of
    clarifying jurisdiction and making tribal governance simpler
    because consolidating their tribal homelands can make
    jurisdictional boundaries a little clearer.
        Mr. Westerman. Thank you.
        Supervisor Rabbitt, the Department is supposed to provide
    notice to impacted state and local governments when fee-to-
    trust applications are submitted. In your experience, what has
    this actually looked like in practice?
        Mr. Rabbitt. Honestly, a fire drill. Thirty days is a very
    short period of time.
        And, again, it is not just the county proper itself,
    because it is also those districts that serve that land. So,
    then we have to reach out to those districts in order to get
    them to be able to give feedback. Like you, we are a public
    body, and we need to take that information back not just from
    staff, but actually from the public. It is their land, as well,
    at that point in time, and getting that information back from
    the boards of those different districts.
        So, 30 days, in my opinion, and I think in the counties'
    opinions, is woefully inadequate. We would love to see
    something more like 120. And I think it is one of those things
    where if you go slow to go fast, that you actually will have a
    better project, long term, if you make sure that you compile
    all the comments thoughtfully and not just rushed in and
    boilerplate it down, or comments that may go above and beyond
    even the scope of the project, but just wanting to cover those
    topics. And I think 30 days is just inadequate, 120, 90,
    whatever. Whatever can be more reasonable in terms of getting
    that information would be beneficial.
        Mr. Westerman. It almost seems like a process where the
    Department moves slow, but wants everybody else to move fast.
        Mr. Rabbitt. That happens.
        Mr. Westerman. Yes. I yield back.
        Ms. Hageman. Thank you. The Chair now recognizes the
    Ranking Member for a UC request.
        Ms. Leger Fernandez. Madam Chairwoman, thank you.
        I ask unanimous consent to submit into the record the
    Department of the Interior's new land acquisition regulations,
    which I would note were developed over a year of seeking input
    from state, local, and tribal governments.
        Ms. Hageman. So ordered. Thank you.

        [The document is available for viewing at:]

    https://docs.house.gov/meetings/II/II24/20240626/117352/HHRG-
    118-II24-20240626-SD010.pdf

        Ms. Leger Fernandez. Madam Chair, I ask unanimous consent
    to enter into the record the Indian Gaming Regulatory Act which
    sets the standards for conducting gaming on tribal lands, just
    to clarify that that is indeed a separate standard, and
    separate from the issue of whether all tribes should be treated
    with parity in this process.
        Ms. Hageman. So ordered. Thank you. Without objection.

        [The document is available for viewing at:]

    https://docs.house.gov/meetings/II/II24/20240626/117352/HHRG-
    118-II24-20240626-SD011.pdf
        Ms. Hageman. I want to thank the witnesses for your
    valuable testimony, and I also want to thank the Members and
    those folks who waived on today and joined us for your
    questioning, as well. This is an important issue that I think
    we need to be addressing these long-term challenges and see if
    we can find some resolution for all of our tribes.
        The members of the Committee may have some additional
    questions for the witnesses, and we will ask you to respond to
    these in writing if they are submitted.
        Under Committee Rule 3, members of the Committee must
    submit such questions to the Committee Clerk by 5 p.m. on
    Monday, July 1, 2024, and the hearing record will be held open
    for 10 business days for these responses.
        If there is no further business, without objection, the
    Subcommittee stands adjourned.

        [Whereupon, at 12:24 p.m., the Subcommittee was adjourned.]

                [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

    Submissions for the Record by Rep. Westerman

                   ADVISORY COUNCIL ON HISTORIC PRESERVATION

                                 Washington, DC

                                                  November 14, 2006

    Mr. Brad Mehaffy, REM
    NEPA Compliance Officer
    National Indian Gaming Commission
    1441 I Street, N.W., Suite 9100
    Washington, DC 20005

    Re: Proposed Approval of a Management Contract for the Expansion of
            Existing Gaming Facility by the Poarch Band of Creek Indians,
            Wetumpka, Alabama

        Dear Mr. Mehaffy:

        On October 3 2006, the Advisory Council on Historic Preservation
    (ACHP) received the additional documentation regarding the referenced
    undertaking. ACHP requested this information in response to your
    notification that the National Indian Gaming Commission (NIGC) was
    reviewing the Poarch Band of Creek Indians' (Poarch Band) proposed
    management contract for expansion of the existing gaming facility on
    Hickory Ground, a property listed in the National Register of Historic
    Places. Based upon this documentation, it is apparent that activities
    undertaken by the Poarch Band prior to the completion of the review
    required by Section 106 of the National Historic Preservation Act
    (NHPA) have adversely affected the National Register-listed property.

        According to the documentation provided, the Poarch Band sponsored
    extensive investigations and ultimately data recovery at Hickory Ground
    between 1988 and the present. The investigations included
    archaeological site identification surveys within the approximately 16-
    acre trust property and the approximately 5-acre tract of fee land. As
    a result, a multi-component archaeological site, Hickory Ground, was
    delineated, boundaries expanded, and finally, extensive archaeological
    data recovery was undertaken, including the removal of numerous human
    burial. As we understand, the recovered remains, artifacts, and site
    documentation are in various stages of analysis and curation by the
    Poarch Band's consultants.

        Regrettably, the archaeological surveys and data recovery were not
    carried out in compliance with Section 106 of the NHPA. Since the
    Section 106 process must be initiated by a Federal agency prior to the
    initiation of project activities, it is unclear why the applicant, a
    tribe with a tribal historic preservation office approved by the
    National Park Service pursuant to Section 101(d)(2) of the NHPA,
    proceeded with project planning and archeological investigations. As
    you know, the Federal agency must consult with the State Historic
    Preservation Officer (SHPO), any Indian tribes that attach religious
    and cultural significance to historic properties affected by the
    undertaking, and other appropriate stakeholders, and provide adequate
    notification to the public in carrying out the steps of the Section 106
    review.

        Based on the information provided, there was no Federal agency
    review of the archaeological investigations carried out by the Poarch
    Band; no consultation with the Alabama SHPO prior to excavation of the
    portion of the site on fee lands, and no consultation with any other
    Indian tribe, particularly the Muscogee Creek Nation. The initial
    notification of the ACHP (see 36 CFR 800.6(a)(1)) did not occur until
    after the destruction of the site. Furthermore, there is no indication
    that the public has been notified about the nature of the undertaking
    and its effects on historic properties (36 CFR 800.3(e)).

        In your correspondence, you indicate that the Poarch Band completed
    more than 90% of the archaeological data recovery within the area of
    potential effect for the proposed project. In the initial letter to the
    ACHP regarding this project, you invited us to participate in
    consultation to resolve the potential adverse effects of the
    undertaking. You have also indicated that NIGC intends to invite the
    Alabama SHPO to participate in any further Section 106 consultation,
    and have outlined steps NIGC will take to complete the Section 106
    review process for any areas where there has been no land disturbance.
    NIGC has indicated that it proposes to develop a memorandum of
    agreement with all parties following consultation.
        Please note, however, that Section 110(k) of the NHPA requires that

            Each Federal agency shall ensure that the agency will not grant
            a loan, loan guarantee, permit, license, or other assistance to
            an applicant who, with intent to avoid the requirements of
            section 106 of this Act, has intentionally significantly
            adversely affected a historic property to which the grant would
            relate, or having legal power to prevent it, allowed such
            significant adverse effect to occur, unless the agency, after
            consultation with the Council, determines that circumstances
            justify granting such assistance despite the adverse effect
            created or permitted by the applicant (16 U.S.C. 470h-2(k)).

        While NIGC has provided documentation regarding archaeological work
    conducted to date, we have no indication of NIGC's views regarding the
    applicability of Section 110(k) and no record of the views of the
    Alabama SHPO and others, specifically the Muscogee Creek Nation
    regarding this matter. In accordance with Section 800.9(c)(2 of the
    ACHP's regulations, NIGC must determine whether or not the Poarch
    Band's actions were undertaken with the intent to avoid the
    requirements of Section 106. If NIGC determines that this did occur,
    NIGC should notify the ACHP and provide documentation specifying the
    circumstances under which the adverse effects to the historic property
    occurred and the degree of damage to the integrity of the historic
    property. This documentation must include any views obtained from the
    applicant, SHPO, and other parties known to be interested in the
    undertaking. Within thirty days of receiving such information, unless
    otherwise agreed to by NIGC, the ACHP will provide the agency with its
    opinion as to whether circumstances justify NIGC granting its approval
    to the applicant and any possible mitigation of the adverse effect. If,
    after considering the views of the ACHP, NIGC determines to grant its
    approval, NIGC should consult further with the ACHP and other
    consulting parties to conclude a memorandum of agreement for treatment
    of the remaining effects to historic properties resulting from the
    project.

        Should you have any questions or wish to discuss this matter
    further, please contact Valerie Hauser, Native American Program
    Coordinator.

                Sincerely,

                                                     Don Klima,
                                      Office of Federal Agency Programs

                                     ______

                           COALITION OF LARGE TRIBES

                                                      June 21, 2024

    Hon. Brian Schatz, Chair
    Hon. Lisa Murkowski, Vice Chair
    Senate Committee on Indian Affairs
    838 Hart Senate Building
    Washington, DC 20510

    Hon. Bruce Westerman, Chair
    Hon. Raul Grijalva, Ranking Member
    House Natural Resources Committee
    1324 Longworth House Office Building
    Washington, DC 20515

    Re: Coalition of Large Tribes Opposition to H.R. 6180/S. 3263

        Dear Chair Schatz, Vice Chair Murkowski, Chair Westerman, and
    Ranking Member Grijalva:

        The Coalition of Large Tribes (COLT) is an intertribal organization
    representing the interests of the more than 50 tribes with reservations
    of 100,000 acres or more, constituting more than 95% of Indian lands in
    the United States and encompassing approximately one half of the Native
    American population. We write now to voice our opposition to H.R. 6180/
    S. 3263. As an organization representing multiple tribes, we are
    concerned that this legislation wrongfully seeks to benefit one tribe
    and will set a precedent that harms hundreds of others. For this
    reason, we oppose this proposed legislation.

        To be sure, how to address the Supreme Court's 2008 decision in
    Carcieri v. Salazar has generated a good deal of debate and controversy
    over the last 16 years. While many may disagree on how to effectuate a
    proper Carcieri fix, we believe strongly that the solution is not
    singling out one tribe for favorable treatment to the detriment of
    others. The Court's Carcieri decision affects a multitude of tribes,
    and yet this proposed legislation seeks only to help the tribe that
    already has the most resources. No doubt, should this proposed
    legislation become law, the multitude of other tribes excluded from
    this legislation--whose need for a Carcieri fix is much greater--will
    be left at a significant disadvantage. The passage of single-tribe
    legislation will inevitably diminish the political will to achieve
    additional Carcieri fixes, and it sets a precedent that will require
    every affected tribe to seek to address Carcieri through individual
    legislation. There is no justification for passing a one-off piece of
    legislation to help the wealthiest of tribes when Indian Country and
    Congress should be working together towards a solution that will help
    all tribes affected by the Court's decision in Carcieri.

        Second, the passage of this legislation would also set a dangerous
    precedent for sacred sites by rewarding the tribe that has used gaming
    as a weapon to destroy and desecrate the burial grounds of other tribes
    and, in doing so, incentivize more such acts in the future. There are
    many tribes negatively impacted by Carcieri that have not engaged in
    violations of federal law and have not defiled sacred sites listed on
    the National Register of Historic Places. Thus, if any tribe is to be
    rewarded in such an exclusive manner, it should not be the tribe whose
    course of conduct violates some of the most fundamentally basic moral
    codes understood by sister tribes throughout Indian Country.

        Finally, while we can all agree that a Carcieri fix is essential,
    the desecration of Hickory Ground in Wetumpka, Alabama, serves to
    demonstrate why any proposed Carcieri fix legislation must include
    protections for sacred sites located within the historical homelands of
    removed tribes. The heresy of Hickory Ground was shocking and
    demoralizing. It would be beyond shameful to create a law that invites
    the destruction of a Native sacred site protected on the National
    Register of Historic Places to happen again. Thus, any proposed
    legislation seeking to address Carcieri must provide removed tribes
    with the ability and authority to protect their sacred sites and the
    burials of their relatives within their homelands. We all agree that
    gaming is a critical form of economic development that supports tribal
    sovereignty and tribal self-governance. No one wants to stand in the
    way of a tribe's ability to engage in gaming. But there is no need for
    any tribe to engage in gaming on another tribe's burial ground. Thus,
    protections to prevent repeating what happened at Hickory Ground are
    critical to any proposed Carcieri fix legislation.

        Thank you for considering the position and perspective of COLT. We
    hope you will move away from H.R. 6180 and S. 3263 and instead focus on
    legislation that will benefit all tribes in Indian Country, not one,
    and that you will include protection for sacred sites in any land
    legislation. This is the unanimous policy of COLT and we hope you
    afford our views of our broad consensus the weight they deserve.

                Sincerely,

                                   Hon. Marvin Weatherwax, Jr.,
                                                    Chairman, and
                              Member, Blackfeet Tribal Business Council

                                     ______

    TO:

      F. Lawerence Oaks, Executive Director
      Alabama Historical Commission
      725 Monroe St.
      Montgomery, Alabama 36130

    FROM:

      Creek Nation East of the Mississippi Inc.
      Poarch Band of Creeks
      Route 3, Box 243-A
      Atmore, Alabama 36502

    Re: U.S. Department of Interior (HCRS) letter 712

        Dear Sir:

        Application is hereby made for funds from the Historic Preservation
    Discretionary Fund Grant-in-Aid program. This application should be
    considered under Category #1 as the proposed undertaking both assists
    in preserving part of a historic district of Native Americans and
    results in the direct participation of Native American Groups.
        Hickory Ground (1-Ee-89) is of major importance in the history of
    the Muscogee (Creek) Nation. It has supplied many of the important
    leaders in Creek history. One of particular note was Alexander
    McGillvray.
        ``O-Che-au-po-fau''; from the Muskogean ``Oche-ub'', a hickory
    tree, and ``po-fau'', in or among, called by the traders ``Hickory
    Ground'' (Owen 1921:1088). Hickory Ground was located on the east bank
    of the Coosa River, south of the present-day Wetumpka approximately two
    miles above the French Fort Toulouse (Pickett 1962:229,343,357; Owen
    1921:1088; Hemperly 1969:224; Brewer 1955:25; Swanton 1952:162).
        Hickory Ground was an Upper Creek town and by tradition was
    originally inhabited by the Coosa or Abihkas (Corkran 1967:307; Owen
    1921:1088; Swanton 1922:242). It was here that Lachland McGillvray
    married Sehoy Marchand in 1745, and established a trading house (Brewer
    1955:15; Debo 1967:38; Swanton 1922:242). Lachland and Sehoy were the
    parents of Alexander McGillvray an important Creek leader having
    special trade relationships with the Panton Leslie and Company trading
    house in Pensacola.
        With the French established at Ft. Toulouse McGillvray's residence
    at Hickory Ground was the center of Spanish, French, British and
    American intrigue. Don Pedro Olivier, a frenchman in the Spanish
    Service, spent many months at Hickory Ground (Debo 1967:52; Pickett
    1962:413). Hickory Ground was loyal to the British during the
    revolutionary war, and was a place of refuge for many loyalists (Brewer
    1955:25-26; Corkran 1967:307-308). President Washington sent Col.
    Willett to Hickory Ground to encourage Alexander McGillvray to come to
    the capitol at New York for treaty negotiations (Brewer 1955:27; Pound
    1951:58). Hickory Ground was visited by Benjamin Hawkins, the first
    american agent to the Creeks, many times (Pound 1951;111; Hemperly
    1969:224; Owen 1921:1088; Swanton 1952:154).
        During the Creek War of 1813-1814, Otchiapofa was listed as a
    hostile Creek town, and was visited by Tecumseh. Here he was able to
    enlist more followers (Halbert and Ball 1969;68,79,99-100; Pickett
    1962:511). As a hostile Creek town Hickory Ground was not un-noticed by
    Andrew Jackson. The Jackson Trace was opened primarily so Jackson could
    move his army to Hickory Ground (Brewer 1955:15; Pickett 1962:592).
        From the above it is apparent that Hickory Ground was involved in
    nearly all the major historic events in the southeast before the
    removal of Creeks from Alabama in 1836. With the proper techniques and
    data recovery methods Creek involvement in these events can be studied.
    More importantly the effects of these activities upon the Creek Nation
    can be understood. Hickory Ground has the potential of measuring
    changes in the political, social, and economic structures of the Creek
    people in pre-removal times.
        As outlined by the Secretary of the Interior this project is
    designed to meet the general and specific standards for acquisition as
    applies to this particular site.
    THE USE OF THE LAND

        Acquisition of the property is principally a protection measure.
    Acquisition will prevent development on the property. All historic
    structures on the site have been destroyed. What is left consists of
    below surface remains. Through proper archaeological methods and
    techniques these below surface features can reveal a tremendous amount
    of information about the Creek way of life in the late 1700's and early
    18OO's. Upon gaining fee-simple title to the land as called for in this
    proposal plans will be developed to minimize continued destruction of
    the archaeological resources. Prior to any type of development of the
    property a scientifically sound archaeological program will be
    conducted to mitigate or minimize effects upon the historic resources.
        The property will serve as valuable resource for cultural
    enrichment of Creek people. The site can serve as a place where classes
    of Creek culture may be held. The Creek people in Oklahoma pride in
    heritage and ties to original homeland can only be enhanced. There is
    still an existing Hickory Ground tribal town in Oklahoma. They will be
    pleased to know their home in Alabama is being preserved. The site may
    serve as an open air classroom where Creek youth can learn of their
    heritage. Interpretive programs can be developed around the vast array
    of history connected with Hickory Ground. The Creek Nation East of the
    Mississippi, Inc. (Poarch Band of Creeks) has already conducted CETA
    sponsored training in archaeological methods for Creek youth. The
    Hickory Ground site will continue to enhance their understanding of
    their history, without excavation.
    SPECIFIC STANDARDS OF PROTECTION

        For most cases land in the hands of Realtors and developers is
    viewed from the prospective of income producing property. At this
    location in order to have a commercial development the land will have
    to be cleared and leveled. In order to halt the destruction planned for
    the site and insure against future destruction funds for acquisition of
    fee simple title are requested.
        As the landowner is very much interested in developing the property
    for commercial purposes it is felt acquisition of fee simple title is
    necessary to prevent destruction of the site. The land was scheduled
    for commercial development. Plans for development called for
    construction of Recreation facilities and multi-family dwellings.
        To the immediate east of the property is existing commercial
    property. These commercial properties include a Hardees and local
    restaurant. To the immediate south ajoining the land of the site, a
    contract has been entered into with an option to by agreed upon between
    Aeronov Corporation and the landowner, Mr. W.D. DeBardeleben. This
    agreement is based upon Aeronov's plans for construction of a Kmart
    store upon the property.
        Mr. Gary Skaret and the landowner have plans for constructing
    apartments for low-income and handicapped persons upon the land to the
    immediate west of the proposed Kmart and to the immediate south of the
    Hickory Ground site.
        From the forgoing it is evident that the surrounding area, and
    indeed the land, the site itself, is prime development land and may
    very well be bulldozed and cleared soon.
        The property is in the process of being nominated to the National
    Register of Historic Places. The Alabama State Historic Preservation
    Officer has determined the property eligible and the required forms are
    now being processed by the Keeper of the National Register.
        Project does conform to Secretary of Interior Standard for Historic
    preservation projects. Specific end products of the project is to
    provide protection for a particularly important site in Creek History,
    while providing a foundation for innovative educational programs.
    Hickory Grounds may also be a place where Creeks from Oklahoma may
    return and visit their ancestral home.
        Upon approval of the proposal the site will be maintained almost
    entirely by minority groups. One half the appraised value will be
    donated to Creek Nation Foundation, Inc. in Oklahoma. The grants-in-aid
    proposal is designed to be awarded to Creek Nation East of the
    Mississippi, Inc. (Poarch Band of Creeks). Both are Native American
    groups. The Creek Nation Foundation, Inc. represents western Creeks
    that were removed to Oklahoma from Alabama. While Creek Nation East of
    the Mississippi, Inc. (Poarch Band of Creeks) represents a group of
    Creeks that were excluded from removal and remained in Alabama in the
    Mobile Region.
        Under this plan the property will be jointly owned by both groups
    of Creeks. They will be equally responsible for the protection and care
    of the site. This is an opportunity for the Creek people to enter into
    cultural resource management by guarding and preserving a site directly
    connected with their culture history.
        The significant aspect of this project is the protection by
    acquisition of a historic Creek site by Creeks. Archaeological
    resources, directly related to Native Americans have for the most part
    been managed and investigated by non-Native Americans. This is an
    opportunity for Native Americans to manage their archaeological
    records. Presently on staff with the Creek Nation East of the
    Mississippi, Inc. (Poarch Band of Creeks) is Larry D. Haikey who has a
    Master's degree in Anthropology. Mr. Haikey is well trained and aware
    of the proper management of archaeological resources. He will act as
    advisor to the tribal councils on plans for permanent protection of the
    site.
        Time for complete acquisition of the site is not expected to take
    longer than forty-five days. This time schedule includes time necessary
    for mailing contracts between Oklahoma and Alabama. Both tribal groups
    will have adequate time for review by respective lawyers and approval
    of council meetings.
        The Creek Nation East of the Mississippi, Inc. (Poarch Band of
    Creeks) agrees to the provisions of covenants and letter of agreements.
    They are also aware of the information needed for an acquisition
    Project Completion Report. A detailed completion report will be the
    responsibility of Creek Nation East of the Mississippi, Inc., and will
    be done by Mr. Haikey as a part of his normal job activities, at no
    cost to the Heritage Conservation and Recreation Service (HCRS)
    Project.
        Consultant and technical assistance will be in the nature of legal
    services. The property deed and other agreements will need to be
    legally sound with respects to the by-laws and intents of the
    corporations. These legal services will be the responsibilities of the
    respective tribal groups.
        Mr. John Charloe, Attorney for Creek Nation Office of Justice, will
    handle legal matters for Creek Nation Foundation, Inc. in Oklahoma.
    Mrs. Hollis Geer, Legal Services Corporation of Alabama, will handle
    matters for Creek Nation East of the Mississippi, Inc. Technical advice
    concerning the site as to maintaining its archaeological integrity will
    be handled by Larry Haikey and other archaeologists with interest in
    Creek cultural history.
        Hickory Ground fits in a historic preservation district which
    includes the area of Wetumpka, Alabama. There have been numerous maps
    of Creek sites referenced in historic documents as being located in
    this area (Swanton 1922; Owen 1921). Swanton (1922) provides numerous
    maps of Creek Tribal town locations at various times in their history.
    One, (Appendix A) is partially reproduced for enclosure with this
    proposal, it shows the location of Hickory Ground as concerns this
    project and in the time period for which the site has been dated. As is
    evidenced by the other town locations on the map the area was heavily
    populated by Creek in the pre-removal period. Some of the other towns
    have been located and are on record in Alabama archaeological site
    files. An item of importance concerning Hickory Ground is the immediacy
    of its near destruction. The others that have been located are not as
    close to destruction at this time.
        A matter of great importance about this project is the involvement
    of Creek People through their government in the management and
    protection of their archaeological resources. It can be safely said
    that anthropology and archaeology have had a bad name among Native
    American groups. This has stemmed from the archaeologists being more
    concerned in the research potential of the sites rather than the
    significance as they relate to Native Americans. The excavation and
    research has been carried out without very much returned to the Indian
    community, causing Native Americans to distrust the motives of
    archaeologists.
        The Creek Nation is attempting to take an active role in management
    of their cultural resources. In the winter of 1978 and 1979 the Creek
    Nation East of the Mississippi cooperated with the University of
    Alabama in Birmingham on an archaeological excavation to test an area
    of burial remains. Attention was called to the site after treasure
    hunters removed a couple of burials.
        In the summer of 1979 the Creek Nation East of the Mississippi
    conducted a CETA Title VI training program in archaeology. The main
    emphasis of this program was to train young Creek people in the proper
    techniques of archaeology. It was hoped that some of these young people
    would continue into the field and help preserve Creek archaeological
    resources.
        Destruction of archaeological resources in Alabama adversely
    effects the profession of Archaeology, while destroying the cultural
    history of Creek people. There is an increased recognition in the field
    of archaeology of the need for Native Americans and archaeologists to
    work together in the cultural resource management area (Lipe 1977:22-
    23; Schiffer and Gumerman 1977:586). Creek People feel that this
    proposed project would do a great deal toward bridging the
    communication gap between archaeology and Native Americans.

                                     ______

                            MUSCOGEE (CREEK) NATION

                                                       July 9, 2024

    Hon. Bruce Westerman, Chair
    Hon. Raul Grijalva, Ranking Member
    House Natural Resources Committee
    1324 Longworth House Office Building
    Washington, DC 20515

    Re: H.R. 6180

        Dear Chair Westerman and Ranking Member Grijalva:

        As the Principal Chief of the Muscogee (Creek) Nation, I write to
    formally submit my Nation's Written Testimony for the record in
    opposition to H.R. 6180. The Muscogee (Creek) Nation opposes this
    legislation for five reasons: (1) the legislation will selectively help
    one Tribe to the detriment of others; (2) the legislation rewards one
    Tribe for conduct that is morally reprehensible and violative of the
    cultural code all other sister tribes collectively abide; (3) the
    legislation encourages other Tribes to engage in similar immoral
    conduct, creating a significant threat that more sacred sites will be
    destroyed in the homelands of forcibly removed Tribal Nations, (4) the
    advocacy for this legislation has been predicated on lies and
    falsehoods, and (5) the legislation would effectively grant a people
    ``successor in interest'' status to treaties that an entirely separate
    Tribal Nation signed with the United States. For these reasons, we
    oppose H.R. 6180. The Muscogee (Creek) Nation advocates for a clean
    Carcieri fix for all Tribal Nations that empowers removed or displaced
    Tribal Nations to protect their sacred sites in their homelands.

        The advocacy for the advancement of H.R. 6180 is full of
    falsehoods, and we are providing documentation that demonstrates the
    nefarious and misleading nature of Poarch's propaganda. As detailed in
    this testimony, the land Poarch is asking Congress to confirm as their
    trust lands is the homeland of the Muscogee (Creek) Nation, including a
    ceremonial site and burial ground for one of Muscogee (Creek) Nation's
    tribal towns, Hickory Ground. Poarch is not part of the Muscogee
    (Creek) Nation and they are not successors-in-interest to our treaties.
    They descend from individuals who willfully divorced themselves from
    the Muscogee (Creek) Nation in the early 1800s in exchange for land in
    southwest Alabama, where they historically lived. Ironically, several
    of the treaties Poarch seeks to claim as their own are treaties the
    Muscogee (Creek) Nation was coerced into signing with the United
    States, in part, because Poarch's ancestors fought with Andrew Jackson
    against our ancestors. Having betrayed us, they relinquished their
    affiliation with the Muscogee (Creek) Nation, avoided removal, and
    received land grants near Tensaw, Alabama.

        Poarch's attacks on the Muscogee (Creek) Nation continue today, not
    by use of bayonets, but by bulldozers and backroom casino deals. Their
    claims to our lands are both legally and morally indefensible. They are
    not us.

        We hope that by submitting this testimony, we can give a voice to
    the Muscogee (Creek) Nation and Hickory Ground, urging you to seriously
    consider the egregious, immoral and unlawful activities that H.R. 6180
    would condone.

    I. The Legislation Will Selectively Help One Tribe to the Detriment of
            Others

        First, there can be no question that the Supreme Court's decision
    in Carcieri v. Salazar has prevented many Tribal Nations from taking
    land into trust. While trust lands can be used for economic
    development, the primary purpose of the United States holding lands in
    trust on behalf of tribes is to protect, preserve and restore tribal
    homelands, including those of cultural and historical significance. The
    Muscogee (Creek) Nation supports a clean fix to address Carcieri, but
    opposes H.R. 6180 which singles out one Tribe at the expense of others.
    We have spoken to many Tribes who fear that if legislation is passed
    for one specific Tribe--instead of all Tribal Nations throughout Indian
    Country--it will set a harmful precedent that will require Tribes to
    get similar legislation in order to protect or restore their own tribal
    homelands.\1\ This would not only be burdensome to Congress, it would
    create two classes of Tribes--those with the resources to advocate for
    legislation to address the negative impacts of Carcieri and those
    without. Should this proposed legislation become law, the multitude of
    other Tribes excluded from this legislation--whose need for a Carcieri
    fix is much greater--will be left at a significant disadvantage. A
    congressional policy should not be established where the wealthiest
    Tribes get to cut the line with a one-off piece of legislation, while
    the Tribes who need the most help are left stranded. Indian Country and
    Congress should be working together towards a solution that will help
    all Tribes affected by the Court's decision in Carcieri.
    ---------------------------------------------------------------------------
        \1\ Resolutions opposing the Poarch legislation and supporting a
    clean Carcieri fix are attached as an appendix to this testimony.

    ---------------------------------------------------------------------------
    II. The Legislation Rewards Conduct that is Morally Reprehensible

        Second, even if helping one Tribe to the detriment of others could
    somehow be justified, Congress should never condone, legitimize, or
    excuse taking land into trust to desecrate the sacred site and burial
    ground of a separate Tribal Nation. It contradicts the primary purpose
    established in the Indian Reorganization Act for taking lands into
    trust, as well as the treaty rights of numerous removed Tribal Nations.
    It would also undermine efforts by the rightful successors to those
    sacred lands and burial grounds from taking action to protect and
    preserve these critical sites.

        The Poarch Band purchased Hickory Ground, a sacred site and
    ceremonial ground of the Muscogee (Creek) Nation in present-day
    Wetumpka, Alabama that we were forced at gunpoint to abandon during
    removal and were subsequently denied the right to preserve, protect, or
    even visit for over 150 years after. Poarch could only purchase this
    sacred site within our treaty territory and homeland because Poarch
    received a taxpayer-funded historic preservation grant. Poarch received
    this federal grant because they promised to protect and preserve the
    Hickory Ground cultural and ceremonial site on behalf of the Muscogee
    (Creek) Nation. In its application for federal funds to buy Hickory
    Ground, Poarch stated that its ``[a]cquisition of the property is
    principally a protection measure.'' \2\ Poarch further stated that its
    ``[a]cquisition would prevent development on the property.'' Indeed,
    Poarch told the federal government that if the government gave Poarch
    money to purchase Hickory Ground, then:
    ---------------------------------------------------------------------------
        \2\ Poarch's application for the federal funds used to purchase
    Hickory Ground is attached as an appendix to this testimony.

            The property will serve as a valuable resource for the cultural
            enrichment of the Creek people. . . . The Creek people in
            Oklahoma['s] pride in heritage and ties to their original
            homeland can only be enhanced. There is still an existing
            Hickory Ground tribal town in Oklahoma. They will be pleased to
            know their home in Alabama is being preserved. . . . The
            Hickory Ground site will continue to enhance their
    ---------------------------------------------------------------------------
            understanding of their history, without excavation.

        Poarch proclaimed that ``[d]estruction of archaeological resources
    in Alabama . . . destroy[s] the cultural history of Creek people.''
    Ultimately, Poarch told the federal government that its acquisition of
    Hickory Ground was ``necessary to prevent destruction of the site.''
    Consequently, Poarch successfully bid to receive federal funding to
    purchase Hickory Ground.

        But just as soon as the federal government placed our sacred site
    in trust for the Poarch, Poarch proceeded to illegally disinter our
    ancestors' remains and cultural artifacts. After breaking their promise
    to preserve the grounds to create space for a bingo hall, they
    eventually ruined Hickory Ground by bulldozing the site for a 26-story
    multi-million dollar luxury casino hotel and resort. All in all, Poarch
    removed 57 of our relatives from their final resting place. Poarch
    placed their remains in garbage bags and sent them off to be stored at
    a university. Our ancestors have never been returned and many remain
    stored in a garden shed and in boxes at a university because Poarch
    refuses to allow them to be repatriated. All of this was done over the
    strenuous objections of the Muscogee (Creek) Nation and in violation of
    numerous laws, and contrary to universal principles of human decency.
    Poarch has yet to be held accountable for its heinous, reprehensible
    conduct, and now brazenly seeks to be rewarded for their behavior
    through a Congressional act. Although gaming is a critical component of
    tribal self-determination, allowing one Tribal Nation to engage in
    gaming on another Tribal Nation's burial ground flies in the face of
    the protections afforded when lands are placed into trust.

    III. The Legislation Encourages Others to Follow in Poarch's Footsteps

        Indeed, enacting this legislation would condone Poarch's behavior
    and encourage others to follow in Poarch's footsteps. The roadmap
    created by this legislation would be very clear to any group of people
    living in the historical treaty territory of a removed Tribal Nation.
    H.R. 6180 would encourage groups of people claiming Native ancestry to
    do the following:

         Step One: Claim to be a tribe based on the fact that
                current members of the group descend from one or more
                individuals who politically divorced themselves from a
                historic Tribal Nation;

         Step Two: Ask for federal preservation funds to buy one of
                the removed Tribal Nation's historic sites and burial
                grounds--under the pretenses that you will protect it;

         Step Three: Petition the federal government to make you a
                tribe (and thus become a federally recognized tribe);

         Step Four: Desecrate the sacred site and exhume the
                removed Tribal Nation's ancestors to build a multi-million
                dollar casino; and

         Step Five: Use the millions of dollars in revenue made
                from the casino built on burial grounds to lobby Congress
                for legislation entitling you to take more land into trust
                within the removed Tribal Nation's historic treaty
                territory with no provisions that protect sacred sites or
                Native burial grounds.

        The five-step plan laid out by Poarch is immoral, to be sure. But
    the incentive to make money is real, and thus the roadmap laid out by
    Poarch is likely to be repeated by others. There is no need to allow
    Poarch to complete step five of their roadmap/plan. Doing so will
    undoubtedly encourage others to follow suit.
    IV. The Advocacy for This Legislation is Based on Lies and Falsehoods

        In addition to having legitimate policy, legal, and historical
    concerns with H.R. 6180, we have grave moral concerns that Poarch is
    disseminating statements that are demonstrably and purposefully false.
    While policy and legal disagreements are common and to be expected
    throughout the legislative process, we feel compelled to warn you that
    the papers in support of H.R. 6180 being pushed by Poarch are
    predicated on lies. Among them are the statements below in a white
    paper circulated to the members of your committee.

            ``Unbeknownst to the Tribe at the time of purchase,
            archaeological evidence later suggested the presence of a Creek
            ceremonial ground on property . . . .''

        False. As discussed in greater detail above, Poarch knew they were
    purchasing a ``Creek ceremonial ground'' before they purchased Hickory
    Ground. When asking the federal government for funds to purchase the
    site, Poarch told the federal government the site was a sacred
    ceremonial ground, and that they would protect it. Specifically, before
    purchasing the site, Poarch told the federal government:

         ``Hickory Ground (1-Ee-89) is of major importance in the
                history of the Muscogee (Creek) Nation.''

         ``The property is in the process of being nominated to the
                National Register of Historic Places.''

         ``In order to halt the destruction planned for the site
                and to insure [sic] against future destruction, funds for
                acquisition of fee simple title are requested.''

         ``Acquisition of the property is principally a protection
                measure.''

         ``Acquisition would prevent development on the property.''

         ``The property will serve as a valuable resource for
                cultural enrichment of Creek people. . . . The Creek people
                in Oklahoma['s] pride in heritage and ties to original
                homeland can only be enhanced. There is still an existing
                Hickory Ground tribal town in Oklahoma. They will be
                pleased to know their home in Alabama is being preserved. .
                . . The Hickory Ground site will continue to enhance their
                understanding of their history, without excavation.''

         ``Hickory Grounds may also be a place where Creeks from
                Oklahoma may return and visit their ancestral home.''

         A trained anthropologist would ``act as an advisor to the
                tribal councils on plans for permanent protection of the
                site.''

         ``Destruction of archaeological resources in Alabama . . .
                destroy[s] the cultural history of Creek people.''

         Poarch acquisition is ``necessary to prevent destruction
                of the site.''

         ``In order to halt the destruction planned for the site
                and to insure against future destruction, funds for
                acquisition of fee simple title are requested.''

        Poarch is telling this Committee that Poarch purchased Hickory
    Ground without the knowledge that Hickory Ground was ``a Creek
    ceremonial ground,'' but that is a blatant lie. Hickory Ground's
    significant cultural status was not ``unbeknownst'' to Poarch. Poarch
    knew about Hickory Ground's significant cultural status, and Poarch
    used that knowledge to convince the federal government to give it
    federal preservation funding on the pretense that Poarch would protect
    it.

            ``Muscogee has chosen to ignore what sovereignty means as it
            works to undermine tribal sovereignty in its attacks on the
            Poarch Band of Creek Indians.''

        False. Muscogee (Creek) Nation is not attacking tribal sovereignty.
    Tribal sovereignty is the inherent right to exercise your treaty right
    to self-govern as a Tribal Nation. Tribal sovereignty is not the right
    to lie and destroy the sacred site of a separate Tribal Nation.
    Muscogee (Creek) Nation's fight to protect the Nation's sacred sites
    and burial grounds does not violate tribal sovereignty; it affirms it.
    The sovereignty of Tribal Nations flows from our culture, and when we
    destroy it for profit--as Poarch has done--we undermine it. Indeed,
    Poarch's conduct threatens the inherent sovereignty of all Tribal
    Nations.

            ``A federal district court already dismissed Muscogee's
            lawsuit.''

        Misleading. While the United States District Court, Middle District
    of Alabama, dismissed the Nation's lawsuit, the Court's dismissal was
    not based on the merits of the Nation's claims, and the case is
    currently before the Eleventh Circuit Court of Appeals. The District
    Court determined Poarch officials could not be held liable for their
    violations of federal law based on a rarely applied and questionable
    Supreme Court decision known as Coeur d'Alene--a case that most lower
    courts no longer follow since it allows state and tribal officials to
    violate federal law with impunity. There is a good chance the Eleventh
    Circuit Court of Appeals will reverse the lower court's outlier of a
    ruling, and there is no reason to let Poarch off the hook before the
    Nation has had its day in court.\3\
    ---------------------------------------------------------------------------
        \3\ We note that the Department of the Interior (DOI) is a
    defendant in the lawsuit, and further, that the DOI did not mention
    this fact when testifying in favor of H.R. 6180, a bill that would
    absolve the DOI of a claim brought against the agency in a federal
    lawsuit.

            ``Nevertheless. the Tribe took great care to leave the
    ---------------------------------------------------------------------------
            ceremonial grounds undisturbed.''

        False. Poarch did not leave Hickory Ground ``undisturbed.'' Poarch
    brought in bulldozers and razed the ground. Poarch dug up 57 of our
    relatives and put their bodies in garbage bags and plastic bins in a
    storage shed. Poarch broke the promises it made in its federal
    application for grant funds and instead of protecting Hickory Ground,
    Poarch built a 246 million dollar casino on top of it. This is not
    leaving Hickory Ground ``undisturbed.''

            ``Prior to the archaeological study, there was no visible
            evidence of a Creek ceremonial ground at the site.''

        False. Archaeologist David Chase of Auburn University discovered
    the Hickory Ground site in 1968 and due to its archaeological and
    historical significance, it was placed on the National Register of
    Historic Places on March 10, 1980. In its application to the federal
    government for the money Poarch needed to purchase the site, Poarch
    told the federal government it wanted to buy the land because it was
    Hickory Ground, and Poarch intended to protect it. Perhaps Poarch
    believes that constructing a narrative that the burials of Mvskoke
    ancestors were not visible prior to Poarch's digging will somehow
    exonerate Poarch for its actions, but the truth is that Poarch knew it
    was buying a culturally significant and historic site and used the
    land's status as a basis for asking the federal government for the
    funds Poarch needed to buy it.

            ``In accordance with our laws and traditions, any remains
            discovered outside of the ceremonial grounds were interred
            adjacent to the site with prayer and ceremony in April of
            2013.''

        False. First, the entire site of Hickory Ground Tribal Town is a
    ceremonial site. It is not clear what Poarch means by stating that
    remains were ``discovered outside of the ceremonial grounds'' since the
    relatives whose remains Poarch exhumed were buried at the Hickory
    Ground Tribal Town and within the ceremonial grounds, the site Poarch
    used federal preservation funds to purchase. Perhaps Poarch has drawn
    some sort of artificial boundary line around the areas where Poarch
    disturbed graves, but that line has no basis in Mvskoke culture or
    history. Burials were disturbed in all parts of the Hickory Ground
    Tribal Town.
        Second, less than one week prior to the ``burial'' Poarch refers to
    in April 2013, Muscogee (Creek) Nation and Mekko Thompson wrote to
    Poarch, asking them to hold off on ``burying'' Mekko Thompson's
    ancestors until Hickory Ground could consult and provide guidance on
    the proper way to rebury the ancestors Poarch wrongfully exhumed.
    Instead of repatriating Mekko Thompson's relatives to him, Poarch put
    them in the ground pursuant to what Poarch calls a ``ceremony.'' It is
    hard to imagine what Poarch considers to be a ``ceremony'' or what kind
    of ``prayer'' Poarch offered in burying Mekko Thompson's relatives
    without his consent or involvement. Furthermore, Auburn University has
    confirmed--during the course of the current litigation--that not all of
    our relatives have been reburied by Poarch. Instead, several remain at
    Auburn, but Auburn won't return them to us because of active litigation
    and Auburn says Poarch has taken the position that our relatives should
    not be returned to us. Poarch has their billion dollar casino. The
    least they could do is release the collections at Auburn and allow us
    to rebury our relatives and their belongings in accordance with Mvskoke
    culture and ceremony.

            ``The Poarch Tribe voluntarily agreed, without compensation, to
            preserve and protect the northern 17 acres of the trust
            property . . .''

        Misleading. The fact that Poarch, in 2017, agreed to preserve a
    portion of the property is misleading because, in applying for the
    funds to buy the site in the first place, Poarch promised to protect
    the entire site. They received federal taxpayer funds in exchange for
    their promise to protect the entire site. Why, in 2017, should they
    expect to receive compensation to do something they promised to do in
    exchange for federal taxpayer dollars in 1980?

            ``The Tribe has complied with all applicable federal, historic,
            and cultural preservation laws pertaining to this property.''

        False. This is the subject of the current lawsuit, and no decision
    on the merits by a court of law has yet to be issued. But even without
    a court decision determining whether Poarch complied, federal agencies
    noted almost two decades ago that Poarch was violating federal cultural
    preservation laws. For instance, on November 14, 2006, the Advisory
    Council on Historic Preservation (ACHP) noted that ``there was no
    Federal agency review of the archaeological investigations carried out
    by the Poarch Band'' and ``no consultation with any other Indian tribe,
    particularly the Muscogee Creek Nation'' in violation of the National
    Historic Preservation Act. Indeed, the ACHP inferred that ``Poarch
    Band's actions were undertaken with the intent to avoid the
    requirements of Section 106.'' This is not compliance.\4\
    ---------------------------------------------------------------------------
        \4\ The Letter from ACHP to National Indian Gaming Commission NEPA
    Compliance Officer (Nov. 14, 2006), is attached herein in the appendix.
    ---------------------------------------------------------------------------
    V. The Legislation Seeks to Backdoor Poarch into ``Successor in
            Interest'' Status for Muscogee (Creek) Nation's Treaties

        Despite claiming to be a successor in interest at the hearing and
    in its written testimony, Poarch is not a successor in interest to any
    of the treaties the Muscogee (Creek) Nation signed with the United
    States since, at the time of signing, Poarch did not exist as a tribe,
    entity, or even an organized group. The fact that a group of people
    claiming Creek ancestry organized themselves and asked to become a
    tribe in 1980 does not automatically qualify them to be a successor in
    interest to the treaties the Muscogee (Creek) Nation has signed.
        In fact, historically, the people who today call themselves
    ``Poarch'' chose to politically divorce themselves from the Muscogee
    (Creek) Nation. When Andrew Jackson sought to exterminate the ``Upper
    Creeks'' (citizens of the Muscogee (Creek) Nation who had not
    intermarried with whites and who opposed removal and slavery), Poarch's
    ancestors teamed up with General Jackson and assisted in his attempts
    to wipe out the full-blood Muscogee (Creek) Nation citizens. In
    exchange for supporting Andrew Jackson, they were given land grants in
    and near Tensaw. Indeed, the Department of the Interior's
    acknowledgment recommendation and evaluation states that Poarch's
    ancestors fought on the side of Andrew Jackson during the ``Creek
    War.'' See U.S. Dep't of the Interior, Bureau of Indian Affairs,
    Memorandum on recommendation and summary evidence for proposed finding
    for Federal acknowledgment of the Poarch Band of Creeks of Alabama
    pursuant to 25 C.F.R. 83 (Dec. 29, 1983) at 13, https://www.bia.gov/
    sites/bia.gov/files/assets/as-ia/ofa/petition/013_prchcr_AL/013_pf.pdf
    (``many of the present group's ancestors, including Lynn McGhee,
    received grants for their land in the Tensaw area from the United
    States for their support in the Creek War.''); see id. at 16 (``the
    lands they chose were . . . close to the Tensaw/Little River area'').
    By agreeing to stay, and by accepting these land grants, they gave up
    all political rights they had previously held as Muscogee (Creek)
    Nation citizens. To be clear, by betraying our Nation and fighting on
    the side of the United States against our Nation, they were allowed to
    avoid the violent, forced removal our Nation suffered on the Trail of
    Tears. Having betrayed and divorced themselves from our Nation, they
    have no right to claim any interest in the treaties we signed with the
    United States.
        It is, therefore, disturbing that H.R. 6180 goes beyond simply
    stating that the Poarch Band shall be considered as under Federal
    jurisdiction in 1934 (they were not). The bill also ratifies and
    confirms all lands taken into trust prior to enactment, including those
    outside of Poarch's geographic area and within the treaty territory
    homelands of the Muscogee (Creek) Nation. Should Poarch ever receive
    legislation allowing lands to be taken into trust, the legislation
    should limit that authority to the geographic area their federal
    recognition was predicated on. When the individuals who called
    themselves ``Poarch Creek'' submitted an application to become a Tribe
    in 1980,\5\ they were very explicit in telling the federal government
    that their ancestral ties to the Southeast are limited to the areas
    surrounding Tensaw and Atmore in present-day southwestern Alabama.
    Poarch's federal acknowledgment recommendation and evaluation states
    that the individuals who identify as Poarch have ``lived in the same
    general vicinity in southwestern Alabama within an eighteen-mile radius
    for a time period beginning in the late 1700s to the present.'' \6\
    ---------------------------------------------------------------------------
        \5\ Poarch initially submitted its application under the name ``the
    Muscogee Nation east of the Mississippi. Inc.''
        \6\ U.S. Dep't of the Interior, Bureau of Indian Affairs,
    Memorandum on recommendation and summary evidence for proposed finding
    for Federal acknowledgment of the Poarch Band of Creeks of Alabama
    pursuant to 25 C.F.R. 83 (Dec. 29, 1983) at 2, https://www.bia.gov/
    sites/bia.gov/files/assets/as-ia/ofa/petition/013_prchcr_AL/013_pf.pdf.
    ---------------------------------------------------------------------------
        H.R. 6180 attempts to put land into trust for the Poarch Band
    outside of their historical territory and within the historic treaty
    territory of the Muscogee (Creek) Nation. Given Poarch's horrific track
    record and atrocious treatment of the Muscogee (Creek) Nation's sacred
    sites, there is no reason to give Poarch carte blanche ability to take
    more land into trust within our Nation's historic boundaries. Indeed,
    doing so would violate the treaties our Nation signed with the United
    States. The United States has treaty trust duties and responsibilities
    to the Muscogee (Creek) Nation. One of those duties is the duty to
    uphold, protect, and preserve the sacred sites our Nation was forced to
    leave behind when we were forcibly removed from our homeland on the
    Trail of Tears. That treaty and the trust duty the United States owes
    to the Muscogee (Creek) Nation supersedes the Poarch Band's desire to
    expand gaming operations within our Nation's homelands and to the
    detriment of our cultural history.
    VI. Conclusion

        Ultimately, Poarch's destruction of Hickory Ground in Wetumpka,
    Alabama, demonstrates why removed or displaced Tribal Nations must be
    empowered to protect the sacred places and ancestral burials they were
    forced to leave behind. The destruction at Hickory Ground is
    heartbreaking and demoralizing. When the law allows for a self-
    identified group of people to take control of the sacred sites and
    burial grounds that were never theirs, and empowers that group to
    subsequently excavate graves and desecrate those sites, it fails every
    removed or displaced Tribal Nation in America. Comprehensive
    legislation is essential to ensure all Tribes can restore their land
    base without concern for the destruction of their most sacred sites. We
    cannot afford to let the destruction of another Native, historic,
    sacred site to take place. Thus, any proposed legislation seeking to
    address Carcieri must provide removed Tribes with the ability and
    authority to protect their sacred sites and the burials of their
    relatives within their homelands.
        The Muscogee (Creek) Nation stands ready to work with all of Indian
    Country and Congress to achieve a clean, comprehensive Carcieri fix
    that applies to all Tribal Nations and empowers Tribal Nations to both
    restore their land base and protect sacred sites within the homelands
    from which they were forcibly removed.

                Respectfully submitted,

                                                 David W. Hill,
                                                        Principal Chief

                                     ______

                                  ROBB & ROSS

                            Mill Valley, California

                                                      June 21, 2024

    Hon. Harriet M. Hageman
    Hon. Teresa Leger Fernandez
    House Natural Resources Subcommittee on Indian and Insular Affairs
    1324 Longworth House Office Building
    Washington, DC 20515

    Re: Testimony for the Record--H.R. 1208 (Cole), To amend the Act of
            June 18, 1934

        Dear Chairwoman Hageman and Ranking Member Fernandez:

        I write on behalf of Artichoke Joe's, a California cardroom,
    located in San Bruno, California to offer testimony for the record
    regarding H.R. 1208, a bill with the stated purpose of ``reaffirming''
    the authority of the Secretary of the Interior to take land into trust
    for Indian Tribes. The intent of the 73rd Congress in enacting Section
    5 of the Indian Reorganization Act and the legal effect of the
    provision have been misunderstood and misapplied. The problem is
    conflation of two very different types of dominion over land, one,
    landowner title to land, and the other, governmental jurisdiction over
    land.
        There is a common misconception that when the federal government
    takes off-reservation land into trust for a tribe, the tribe not only
    obtains title to the land but also gains jurisdiction over the land.
    However, that has never been the law.
        Under well-established principles governing our federalist system
    of dual levels of government, a state has primary jurisdiction over all
    lands within its borders except (1) those lands over which the federal
    government reserved jurisdiction when it admitted the state into the
    Union, (2) those lands purchased by the federal government for the
    erection of needful buildings with the consent of the Legislature of
    the state in which the land lies (pursuant to the Enclaves Clause), and
    (3) those lands over which the state Legislature has ceded jurisdiction
    and the federal government has accepted jurisdiction pursuant to 40
    U.S.C. Sec. 3112.
        Absent one of the three exceptions, when the federal government
    acquires title to land within a state, all it acquires is the title to
    the land, not legislative jurisdiction over the land. The federal
    government is well aware of these principles. A well-known GAO
    publication states, ``Acquisition of land and acquisition of federal
    jurisdiction over that land are two different things.'' GAO, Principles
    of Federal Appropriations Law, 3rd Ed. 2008, Vol. III, Ch. 13, p. 13-
    101. The Supreme Court has held that the federal government cannot
    strip states of jurisdiction, calling such attempt an act of
    ``disseisin.'' Fort Leavenworth Railway Co. v. Lowe, 114 U.S. 525, 538
    (1885). Thus, the federal government has no power to divest a state of
    its territorial jurisdiction once bestowed. Hawaii v. Office of
    Hawaiian Affairs, 556 U.S. 163, 176 (2009) quoting Idaho v. United
    States, 533 U.S. 262 (``[T]he consequences of admission are
    instantaneous, and it ignores the uniquely sovereign character of that
    event . . . to suggest that subsequent events somehow can diminish what
    has already been bestowed.'')
        This law applies to Indian lands the same as to non-Indian lands.
    See, for example, Silas Mason Co. v. Tax Comm., 302 U.S. 186 (1937);
    and Surplus Trading Co. v. Cook, 281 U.S. 647 (1930). Also compare
    Organized Village of Kake v. Egan, 369 U.S. 60 (1962) [Alaska could
    enforce state anti-fish-trap law on Indian reservation over which
    federal government did not reserve jurisdiction on state's admission]
    to Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962) [Alaska
    lacked jurisdiction to enforce state anti-fish-trap law on Indian
    reservation over which the federal government did reserve jurisdiction
    at time of state's admission.]
        As in Metlakatla Indian Community, most Indian reservations were
    established before admission of the state in which they sit, and thus
    fit the first exception as lands over which the federal government
    reserved jurisdiction upon admission of the state. However, that is not
    the case with lands procured by a tribe today. When a tribe acquires
    title to land that has been under state jurisdiction, the tribe obtains
    title but the state retains its jurisdiction. The tribe has no
    jurisdiction unless and until the state cedes it.
        Although these principles are foundational to our federalist system
    and well-established, the Department of Interior seems to have violated
    them in adopting regulations pursuant to section 5. In 1965, the DOI
    adopted a regulation (25 USC Sec. 1.4) which provides that none of the
    laws of any State or political subdivision limiting, zoning, or
    otherwise governing the use or development of any real property held in
    trust by the US for Indians shall be applicable to that land. More
    recently, the section 151 regulations assume that when land is taken
    into trust for a tribe, whether on-or off-reservation, all state and
    local law is preempted.
        Such a jurisdictional shift was never intended by the 73rd Congress
    and is not consistent with the Constitution. And this mistaken
    application of Section 5 is the root of the problem with off-
    reservation acquisitions. The mistaken belief that there is a shift in
    jurisdiction means that taking land into trust upends existing controls
    and existing communities.
        H.R. 1208 is likewise based on this misunderstanding of the law and
    would exacerbate the problem. It seeks not only to allow land to be
    taken into trust for tribes but is based on the assumption that once
    land is taken into trust, the state loses jurisdiction over Indians on
    the land and state laws restricting gambling conducted by the Indians
    on the land are no longer applicable to the land. Thus, H.R. 1208 would
    allow off-reservation casinos to proliferate.
        Before referring out H.R. 1208, we respectfully suggest that the
    committee address this issue and clarify that Section 5 of the IRA
    allows the federal government only to take title to land into trust and
    does not affect the federal and state jurisdiction over the land. In
    specific, Congress should clarify that taking land into trust is not
    intended to infringe on states' rightful jurisdiction over the lands
    taken into trust.
        We appreciate your consideration of these comments.

                Sincerely,

                                                     Alan Titus

                                     ______

                       UNITED INDIAN NATIONS OF OKLAHOMA

                             RESOLUTION NO. 2024-02

    A Resolution in Support of a Carcieri Fix for all Tribal Nations--not
    one--and, in Support of the Inherent Right of all Removed Tribal
    Nations to Protect their Sacred Sites in their Homelands.

    WHEREAS, the United Indian Nations of Oklahoma (UINO) is an
    organization established to protect the inherent sovereignty and self-
    determination of all Tribal Nations based in Oklahoma; and

    WHEREAS, UINO seeks to safeguard the laws and treaties that benefit
    Tribal Nations and tribal citizens and to help improve government-to-
    government relations among Tribal Nations in Oklahoma and the United
    States; and

    WHEREAS, UINO strives to protect the ceremonial, cultural, religious
    rights and access and usage of sacred sites of its member Tribal
    Nations; and

    WHEREAS, nearly all of the member Tribal Nations in UINO were forcibly
    and violently removed from their historic homelands; and

    WHEREAS, because so many of UINO's member Tribal Nations were removed
    from their homelands, UINO commands a unique understanding of the
    importance of protecting the right of removed Tribal Nations to protect
    their sacred sites in the homelands from which they were removed; and

    WHEREAS, UINO understands the role the Supreme Court's decision in
    Carcieri v. Salazar has played in preventing numerous Tribal Nations
    from fully exercising tribal sovereignty and engaging in economic
    development to sustain tribal self-governance; and

    WHEREAS, the passage of single-Tribe legislation to address Carcieri
    will inevitably diminish the political will to achieve additional
    Carcieri fixes, and will set a precedent that will require every
    affected Tribe to seek to address Carcieri through individual
    legislation, including those without the resources to do so; and

    WHEREAS, UINO believes that if any legislative fix to Carcieri is to be
    passed, it must be for the benefit of all Tribal Nations--not just one;
    and

    WHEREAS, although gaming is a critical component of tribal self-
    determination, there is no need for any Tribal Nation to engage in
    gaming on another Tribal Nation's burial ground; and

    WHEREAS, a federally recognized tribe obtained ownership of another
    tribe's sacred burial site and violated a written promise to preserve
    and protect this site by removing and storing ancestral remains in
    boxes on shelves to make way for construction of a casino; and

    WHEREAS, if any Tribe were to be rewarded in such an exclusive manner,
    it should not be the Tribe whose course of conduct violates some of the
    most fundamentally basic moral codes understood by sister tribes
    throughout Indian Country; and

    WHEREAS, passing any legislation that does not address these injustices
    will condone and incentivize more such desecrations; and

    WHEREAS, the desecration of Hickory Ground in Wetumpka, Alabama, serves
    to demonstrate why any proposed Carcieri fix legislation must include
    protections for sacred sites located within the historical homelands of
    removed Tribal Nations; and

    THEREFORE BE IT RESOLVED that UINO declares that any proposed
    legislation seeking to address Carcieri must provide removed Tribal
    Nations with the ability and authority to protect their sacred sites
    and the burials of their relatives within their homelands.

    BE IT FURTHER RESOLVED that UINO opposes H.R. 6180 and S. 3263.
    BE IT FINALLY RESOLVED that UINO calls on Congress to pass legislation
    that provides a Carcieri fix for all Tribal Nations, not one.

    CERTIFICATION

    The foregoing resolution was adopted by the United Indian Nations of
    Oklahoma membership in Miami, Oklahoma, on this 18th day of June 2024,
    with a quorum present.

            ___________________________   __________________________

            Chief Ben Barnes, Chairman    Chief David Hill, Secretary

                                     ______

                                     [GRAPHIC] [TIFF OMITTED] T6170.005

                                   *****

    The full document is available for viewing at:

    https://docs.house.gov/meetings/II/II24/20240626/117352/HHRG-
    118-II24-20240626-SD016.pdf

                                    ------

    Submission for the Record by Rep. Grijalva

                            Statement for the Record
                        USET Sovereignty Protection Fund
        on June 26, 2024 Legislative Hearing on H.R. 1208 and H.R. 6180

        Chair Hageman, Ranking Member Leger-Fernandez, and members of the
    Subcommittee, thank you for this opportunity to provide testimony on
    H.R. 1208, ``To amend the Act of June 18, 1934, to reaffirm the
    authority of the Secretary of the Interior to take land into trust for
    Indian Tribes, and for other purposes.'' This bill would address the
    long-standing inequities caused by the U.S. Supreme Court's 2009
    decision in Carcieri v. Salazar, where the Court interpreted the Indian
    Reorganization Act (IRA) to require a Tribal Nation to have been
    ``under Federal jurisdiction'' when the IRA was enacted in 1934 to be
    eligible to acquire trust land.
        USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-
    tribal organization advocating on behalf of thirty-three (33) federally
    recognized Tribal Nations from the Northeastern Woodlands to the
    Everglades and across the Gulf of Mexico.\1\ USET SPF is dedicated to
    promoting, protecting, and advancing the inherent sovereign rights and
    authorities of Tribal Nations and in assisting its membership in
    dealing effectively with public policy issues.
    ---------------------------------------------------------------------------
        \1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
    of Texas (TX), Catawba Indian Nation (SC), Cayuga Nation (NY),
    Chickahominy Indian Tribe (VA), Chickahominy Indian Tribe-Eastern
    Division (VA), Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of
    Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton Band of
    Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), Mashantucket
    Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee
    Tribe of Indians of Florida (FL), Mi'kmaq Nation (ME), Mississippi Band
    of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut (CT),
    Monacan Indian Nation (VA), Nansemond Indian Nation (VA), Narragansett
    Indian Tribe (RI), Oneida Indian Nation (NY), Pamunkey Indian Tribe
    (VA), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe
    at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of
    Creek Indians (AL), Rappahannock Tribe (VA), Saint Regis Mohawk Tribe
    (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians (NY),
    Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA),
    Upper Mattaponi Indian Tribe (VA), and Wampanoag Tribe of Gay Head
    (Aquinnah) (MA).
    ---------------------------------------------------------------------------
    I. Consistent Support by USET SPF for Carcieri Fix

        Because of where we are located, our member Tribal Nations were the
    first to contend with 17th and 18th-century local colonial governments
    and distant European nations at the onset of colonization in North
    America. We engaged in treaty-making with both the British Crown (in
    addition to other foreign governments) and the nascent American
    government. Our relationship with the U.S. government involves a
    lengthier history of destruction, destabilization, termination, and
    assimilation than the Tribal Nations of many other regions throughout
    the country. Indeed, our region served as a ``testing ground'' for some
    of the most horrific and shameful federal policies visited upon Tribal
    Nations and Native people. While all Tribal Nations are working to
    rebuild in the wake of destructive federal policies and actions, many
    USET SPF Tribal Nation members are doing so from positions of greater
    and more extensive loss of population and natural and cultural
    resources. In spite of this, our story is one of triumph, as we have
    persevered over the last 400+ years against the greatest of odds and in
    the face of a centuries-long campaign to eradicate our people and
    governments.
        One great consequence of this long relationship with the United
    States has been the steady loss of our Tribal Nations' lands, including
    through often-forced or coerced treaties and other takings. Indeed,
    USET SPF-member Tribal Nations retain only small remnants of our
    original homelands today. As a result, although the trust land
    acquisition authority of the IRA is deeply important to all of Indian
    Country, it is of particular significance and importance to our 33
    Tribal Nation members.
        During the 15-year period of time since Carcieri, the number of
    acres of homelands returned to Tribal Nations has lagged because of the
    burdensome hurdles caused by Carcieri, and the costs to Tribal Nations
    and the Department have skyrocketed--taking away from other important
    Indian Country issues requiring our attention. This is all avoidable
    with a simple Carcieri fix.
        USET SPF has consistently advocated for a Carcieri fix for all
    Tribal Nations in the 15 years since the disastrous Supreme Court
    decision. Included in our advocacy, we have submitted testimony to
    Congress supporting legislation to resolve this issue, including but
    not limited to detailed written testimony submitted in the last 10
    years in 2019, 2017, and 2015, and we have already prepared a support
    letter for this Congress's Carcieri fix legislation. We will not
    restate the points made in that testimony here, but rather we will
    focus on the topics central to this Carcieri hearing.
        It is long past time that Congress cross the finish line in
    enacting this commonsense piece of legislation, which contains the two
    features necessary to restore parity to the land-into-trust process:
    (1) a reaffirmation of the status of current trust lands; and (2)
    confirmation that the Department has authority to take land into trust
    for all federally recognized Tribal Nations. USET SPF extends its
    gratitude to Rep. Tom Cole for his continued introduction of bi-
    partisan legislation that would right this wrong, and, once again, we
    urge the House Committee on Natural Resources and the whole of Congress
    to take immediate action on H.R. 1208.
    II. This Bill Would Narrowly Correct the Court's Mistaken Reading of
            the IRA in Carcieri
    A. The U.S. Supreme Court's Decision in Carcieri Undermined Congress's
            Intent in Enacting the IRA

        Section 5 of the IRA authorized the U.S. Department of the Interior
    (Department) ``to acquire, through purchase, relinquishment, gift,
    exchange, or assignment, any interest in lands, water rights, or
    surface rights to lands, within or without existing reservations,
    including trust or otherwise restricted allotments, whether the
    allottee be living or deceased, for the purpose of providing land for
    Indians.'' \2\ The IRA provided that title to such acquired lands
    ``shall be taken in the name of the United States in trust for the
    Indian Tribe or individual Indian for which the land is acquired, and
    such lands or rights shall be exempt from State and local taxation.''
    \3\
    ---------------------------------------------------------------------------
        \2\ 25 U.S.C. Sec. 5108.
        \3\ 25 U.S.C. Sec. 5108.
    ---------------------------------------------------------------------------
        The Supreme Court in Carcieri was tasked with construing potential
    temporal limitations of the Department's authority to acquire land in
    trust for Tribal Nations under the IRA.\4\ The Court determined that a
    Tribal Nation seeking to acquire land in trust under the IRA must meet
    an IRA definition of ``Indian.'' \5\ The decision in Carcieri was
    limited to a statutory analysis of the meaning of ``now'' in the phrase
    ``now under federal jurisdiction'' in the first IRA definition of
    ``Indian.'' \6\ The Court held that a Tribal Nation meeting that
    definition must have been ``under federal jurisdiction'' when the IRA
    was enacted in 1934.\7\
    ---------------------------------------------------------------------------
        \4\ Carcieri v. Salazar, 555 U.S. 379 (2009).
        \5\ Id. at 393 (citing 25 U.S.C. Sec. 5129).
        \6\ Id. at 382.
        \7\ Id. at 395. Nowhere in its decision did the Court hold a Tribal
    Nation must be federally recognized in 1934 to acquire land into trust
    under the IRA. Instead, Justice Breyer in his concurrence indicated a
    Tribal Nation may have been under federal jurisdiction in 1934
    regardless of whether the federal government understood it to be
    federally recognized at that time. Carcieri v. Salazar, 555 U.S. 379,
    397 (2009) (Breyer, J., concurring). He also stated that the IRA
    ``imposes no time limit upon recognition.'' Id. at 398. Justice Breyer
    explained that sometimes ``later recognition reflects earlier `Federal
    jurisdiction.' '' Id. at 398-99. The Department has confirmed that a
    Tribal Nation need not have been federally recognized in 1934.
    Memorandum from Solicitor to Secretary re The Meaning of ``Under
    Federal Jurisdiction'' for Purposes of the Indian Reorganization Act,
    23-26 (Mar. 12, 2014), available at https://www.doi.gov/sites/
    doi.opengov.ibmcloud.com/files/uploads/M-37029.pdf. Courts have upheld
    this confirmation. See, e.g., Confederated Tribes of the Grand Ronde
    Community v. Jewell, 830 F.3d 552, 565 (D.C. Cir. 2016). It is
    important not to conflate the two terms--``under federal jurisdiction''
    and ``federal recognition''--which are distinct legal concepts.
    ---------------------------------------------------------------------------
        This decision has since significantly undermined restoration of
    Tribal Nations' homelands, costing Tribal Nations and the Department
    valuable time and money to establish a Tribal Nation's 1934 ``under
    federal jurisdiction'' status prior to acquiring trust land for that
    Tribal Nation, in direct contravention of Congress's goals when
    enacting the IRA. As discussed below, Congress in enacting the IRA
    intended to address historical takings of Tribal Nations' lands by
    providing a legislative tool to aid in reacquiring Tribal homelands.
    B. The Pending Legislation is Narrow and Would Fix the
            Misinterpretation

        H.R. 1208 would resolve this problem by clarifying that, beginning
    when the IRA was enacted, ``Indians'' are defined to include ``all
    persons of Indian descent who are members of any federally recognized
    Indian Tribe,'' removing the phrase ``now under Federal jurisdiction''
    entirely. This amendment to the IRA would be effective as if included
    at the original date of enactment of the IRA, and it would confirm
    actions already taken by the Department pursuant to the IRA to the
    extent they are challenged based on whether an Indian Tribe was
    federally recognized or under federal jurisdiction in 1934.
    III. All Tribal Nations Deserve Access to Tools for Rebuilding
            Homelands
    A. The United States Has a Long History of Taking Tribal Nations' Lands
            and Resources

        Although the United States has always recognized Tribal Nations as
    inherently sovereign political entities--at least in words--it has
    taken actions throughout time to diminish our sovereign rights and
    authorities, including with regard to our land holdings and other
    resources. It is through this diminishment that the United States has
    amassed its land base, wealth, and power.
        Federal Indian law sits atop the ``Doctrine of Discovery,'' which
    colonizers long used to justify taking Indigenous peoples' lands and
    resources.\8\ In 1493, Pope Alexander VI declared that all land not
    inhabited by Christians was available for ``discovery'' and
    colonization.\9\ The doctrine was incorporated into American
    jurisprudence within the ``Marshall Trilogy'' of U.S. Supreme Court
    cases establishing the foundations of federal Indian law.
    ---------------------------------------------------------------------------
        \8\ Pope Alexander VI, Inter caetera [Among other] (May 4, 1493).
        \9\ Pope Alexander VI, Inter caetera [Among other] (May 4, 1493).
    (``[W]e, of our own accord, . . . give, grant, and assign to you and
    your heirs and successors, kings of Castile and Leon, forever . . . all
    islands and mainlands found and to be found, discovered and to be
    discovered . . . .'').
    ---------------------------------------------------------------------------
        Utilizing the Doctrine of Discovery, the United States took the
    vast majority of Tribal Nations' lands and resources. The land base
    that compromises the modern-day United States of America was, and
    remains, Tribal homelands. The United States' territory covers a
    cumulative area of approximately 2.274 billion acres.\10\ Of this, as
    of 2018, only 100 million acres (4.4%) was recognized by the United
    States as Tribal land, and just over half of that meager amount--56.2
    million acres--was held in trust by the federal government for the
    beneficial occupancy of Tribal Nations and Tribal citizens.\11\ The
    total amount of land held in trust thus represents just 2.47% of the
    United States' overall territorial holdings.
    ---------------------------------------------------------------------------
        \10\ CAROL HARDY VINCENT & LAURA A. HANSON, CONG. RSCH. SERV.,
    R42346, FEDERAL LAND OWNERSHIP: OVERVIEW AND DATA 1 (2020), https://
    sgp.fas.org/crs/misc/R42346.pdf.
        \11\ U.S. COMM'N ON CIV. RIGHTS, BROKEN PROMISES: CONTINUING
    FEDERAL FUNDING SHORTFALL FOR NATIVE AMERICANS 160, 165 (2018), https:/
    /www.usccr.gov/files/pubs/2018/12-20-Broken-Promises.pdf; see also OFF.
    OF INDIAN ECON. DEV, DEP'T OF THE INTERIOR, Benefits of Trust Land
    Acquisition (Fee to Trust), https://www.bia.gov/service/trust-land-
    acquisition/benefits-trust-land-acquisition (last visited Dec. 13,
    2021).
    ---------------------------------------------------------------------------
        The land and resources the United States has taken from us are
    extremely valuable. As of 2019, the estimated total overall value of
    all lands and associated natural resources comprising the territory of
    the 50 states was worth over $34.6 trillion.\12\
    ---------------------------------------------------------------------------
        \12\ See Financial Accounts of the United States: Table B.1
    Derivation of U.S. Net Wealth, FED. RSRV. SYS. (June 10, 2021), https:/
    /www.federalreserve.gov/releases/z1/20210610/html/b1.htm (reporting
    federal government's net worth of $7.21 trillion in 2019); CATHERINE
    CULLINANE THOMAS & LYNNE KOONTZ, DEP'T OF THE INTERIOR, Natural Res.
    Report NPS/NRSS/EQD/NRR--2021/2259, 2020 NATIONAL PARK VISITOR SPENDING
    EFFECTS: ECONOMIC CONTRIBUTIONS TO LOCAL COMMUNITIES, STATES, AND THE
    NATION, at v (2021), https://doi.org/10.36967/nrr-2286547 (stating
    National Parks generated $41.7 billion in 2019); Natural Resources
    Revenue Data, DEP'T OF THE INTERIOR, https://revenuedata.doi.gov/
    explore (last visited Apr. 7, 2022) (select ``Revenue'' in data type
    field, ``All'' in commodity field, ``2020'' and ``Calendar Year'' in
    period field) (totaling the revenue associated with the United States'
    land base and natural resources at $34.6 trillion);CAROL HARDY VINCENT
    & LAURA A. HANSON, CONG. RSCH. SERV., R42346, FEDERAL LAND OWNERSHIP:
    OVERVIEW AND DATA 1 (2020), https://sgp.fas.org/crs/misc/R42346.pdf
    (reporting the 2.27 billion acres of land comprising the United States
    is worth approximately $12,000 per acre for a total of over $27.24
    trillion); BUREAU OF LAND MGMT., DEP'T OF THE INTERIOR, THE BLM: A
    SOUND INVESTMENT FOR AMERICA 2020, at 1 (2020), https://www.blm.gov/
    sites/blm.gov/files/SoundInvest2019-6pages-FINAL-083019.pdf (stating
    BLM-managed lands generated $111 billion in 2019); WILLIAM LARSON,
    DEP'T OF COM., NEW ESTIMATES OF VALUE OF LAND OF THE UNITED STATES 1
    (2015), https://www.bea.gov/research/papers/2015/new-estimates-value-
    land-united-states.
    ---------------------------------------------------------------------------
        The federal government has sought to seize control of Tribal lands
    and resources in primarily one of two ways: through relocation of
    Tribal Nations to new land bases, sometimes hundreds of miles away,
    often with limited natural resources and development potential; or by
    authorizing Tribal Nations to remain in our ancestral homelands but
    with a diminishment in size of Tribally-held territory and usually in
    the least agriculturally productive area of those lands. The United
    States' acquisition of Tribal Nations' lands and resources came as a
    result of often forced cessions, coercion, and theft. Later,
    acquisitions came through the gradual deterioration of federal policies
    toward Tribal Nations from those grounded in mutually respectful
    political negotiations to those that unilaterally sought the outright
    taking of our lands and resources, assimilation of our people, and
    termination of Tribal sovereignty and culture.
        Over time, the original understandings of Tribal sovereignty
    recognized in the U.S. Constitution were maligned by federal power
    positioning and the insidious expansion of the philosophical
    underpinnings of the Doctrine of Discovery into American jurisprudence.
    For example, the U.S. Supreme Court wrongly came to interpret the
    Indian Commerce Clause in Article I, Section 8 of the Constitution to
    mean that Congress has so-called ``plenary power'' over Indian affairs
    to act as it sees fit with regard to Tribal Nations and our rights.\13\
    This concept was neither intended nor advanced in the Constitution or
    by its drafters, but rather it is a legal fiction created by the
    colonizer's own courts to facilitate taking Tribal Nations' lands and
    resources and prevent our rightful exercise of inherent
    sovereignty.\14\ As an outgrowth, according to Supreme Court precedent
    that has evolved to serve the interests of the United States as
    colonizer, even Tribal homelands and other rights protected via
    treaties may be unilaterally abolished if done so clearly and
    explicitly by Congress.\15\
    ---------------------------------------------------------------------------
        \13\ See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S.
    163,192 (1989) (citations omitted) (``[T]he central function of the
    Indian Commerce Clause is to provide Congress with plenary power to
    legislate in the field of Indian affairs.''); Lone Wolf v. Hitchcock,
    187 U.S. 553, 565 (1903) (``Plenary authority over the tribal relations
    of the Indians has been exercised by Congress from the beginning . . .
    .'').
        \14\ See Haaland v. Brackeen, 599 U.S. 255, 318-331 (2023)
    (Gorsuch, J., concurring).
        \15\ See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians,
    526 U.S. 172, 202 (1999) (citation omitted) (``Congress may abrogate
    Indian treaty rights, but it must clearly express its intent to do so .
    . . .''); Washington v. Wash. State Com. Passenger Fishing Vessel
    Ass'n, 443 U.S. 658, 690 (1979) (``Absent explicit statutory language,
    we have been extremely reluctant to find congressional abrogation of
    treaty rights.''); United States v. Santa Fe Pac. R.R. Co., 314 U.S.
    339, 353-54 (1941) (requiring a ``clear and plain indication'' of
    congressional intent to extinguish Tribal rights, as ``an
    extinguishment cannot be lightly implied in view of the avowed
    solicitude of the Federal Government for the welfare of its Indian
    wards'').
    ---------------------------------------------------------------------------
        Today, the territorial jurisdiction of Tribal Nations is confined
    to a mixture of reservation, restricted fee, and trust land.\16\ We are
    forced to operate within the federally imposed Tribal land system
    (i.e., reservation and trust land held for our ``beneficial
    occupancy''), but our interests and practices extend beyond these
    boundaries. For instance, Tribal Nations are intimately tied to
    countless sacred and culturally significant sites whose importance
    almost defies comprehension. They hold the bones of our ancestors,
    connect us to our origin stories, are sites of ceremony and spiritual
    presence, and grow our medicinal plants and traditional foods, and, in
    some cases, the places themselves are alive and deeply respected as
    such. Yet, Tribal Nations continue to fight to preserve our interests
    beyond the reservation system and to regain our stolen lands, which are
    central to our existence as peoples and as governments in service to
    our communities. All the while, the United States has profited from the
    vast natural resources and essential environmental, agricultural, and
    cultural knowledge that Tribal Nations have cultivated over countless
    generations of intimate connection to our ancestral lands.\17\
    ---------------------------------------------------------------------------
        \16\ See, e.g., U.S. COMM'N ON CIV. RIGHTS, BROKEN PROMISES:
    CONTINUING FEDERAL FUNDING SHORTFALL FOR NATIVE AMERICANS 165 (2018),
    https://www.usccr.gov/files/pubs/2018/12-20-Broken-Promises.pdf.
        \17\ See, e.g., TEK vs Western Science, NAT'L PARK SERV., https://
    www.nps.gov/subjects/tek/tek-vs-western-science.htm (last visited Apr.
    7, 2022) (collecting studies on the traditional ecological knowledge,
    or ``TEK,'' of Indigenous peoples).
    ---------------------------------------------------------------------------
        Against this historical and ongoing backdrop, the unjust nature of
    the Carcieri decision becomes even more clear.
    B. Congress Enacted the IRA to Rebuild Tribal Homelands

        The IRA, enacted in 1934,\18\ was designed in part to provide
    powerful tools to protect and rebuild Tribal Nations' land bases
    following nearly 200 years of systematic dispossession, from which
    Indian Country is still reeling, so that Tribal Nations may exercise
    jurisdiction over our land and provide for our people.
    ---------------------------------------------------------------------------
        \18\ Indian Reorganization Act of 1934, Pub. L. No. 73-383, 48
    Stat. 984 (codified as amended at 25 U.S.C. Sec. 5101 et seq.).
    ---------------------------------------------------------------------------
        A central feature of the IRA intended to strengthen Tribal Nation
    self-government and self-sufficiency was Section 5, discussed above and
    interpreted in Carcieri, aimed at rebuilding Tribal Nations' land
    bases.\19\ Additionally, in order to maintain and protect lands already
    held for Tribal Nations, the IRA also prohibited any further allotment
    of reservation lands,\20\ extended indefinitely the periods of trust or
    restrictions on individual Indians' trust lands,\21\ provided for the
    restoration of surplus unallotted lands to Tribal Nation ownership,\22\
    and prohibited any transfer of restricted Tribal Nations' or individual
    Indians' lands, with limited exceptions, other than to the Tribal
    Nation or by inheritance.\23\
    ---------------------------------------------------------------------------
        \19\ 25 U.S.C. Sec. 5108.
        \20\ 25 U.S.C. Sec. 5101.
        \21\ 25 U.S.C. Sec. 5102.
        \22\ 25 U.S.C. Sec. 5103(a).
        \23\ 25 U.S.C. Sec. 5107.
    ---------------------------------------------------------------------------
        Congressional representatives who debated and discussed enactment
    of the IRA uniformly understood that one of the main purposes of the
    IRA was to provide a mechanism whereby the Department could acquire
    land into trust for Tribal Nations.\24\ Congress designed the IRA not
    only to ``prevent further loss of land'' but also to acquire additional
    land for Tribal Nations, as congressional representatives understood
    ``prevention is not enough'' to undo the problems caused by past
    federal Indian law and policy.\25\ The Supreme Court later emphasized
    that Congress understood when enacting the IRA that the goal of self-
    government for Tribal Nations could not be met without ``put[ting] a
    halt to the loss of tribal lands.'' \26\
    ---------------------------------------------------------------------------
        \24\ See e.g., H.R. 7902, Rep. No. 1804, at 6, 73d Cong. 2d sess.
    (May 28, 1934) (Submitted by Rep. Howard); 73rd Cong. Rec. 11125 (June
    12, 1934) (Statement of Sen. Thomas); 73rd Cong. Rec. 9268 (May 22,
    1934) (Statement of Rep. Hastings).
        \25\ See 73rd Cong. Rec. 11727 (June 15, 1934) (Statement of Rep.
    Howard); see also To Grant To Indians Living Under Federal Tutelage The
    Freedom To Organization For Purposes Of Local Self-Government And
    Economic Enterprise, 73rd Cong. 59 (1934) (Statement by Commissioner
    Collier).
        \26\ Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151 (1973).
    ---------------------------------------------------------------------------
    C. Congress Should Fix Carcieri To Benefit All Tribal Nations and to
            Carry Forward Its Own Mandate to Treat Federally Recognized
            Tribal Nations Equally

        The Court's decision in Carcieri undermines Congress's intent in
    the IRA to right past wrongs by providing tools to rebuild homelands.
    The burdens of the Carcieri decision impact all Tribal Nations.
    Removing the burdensome process of receiving a positive Carcieri
    determination from the Department before acquiring land into trust will
    benefit all Tribal Nations and further Congress's original goals when
    it enacted the IRA in 1934.
        Additionally, Congress made clear when it amended the IRA in 1994
    to add the ``privileges and immunities'' clauses that departments and
    agencies of the federal government must not make any decisions ``with
    respect to a federally recognized Indian tribe that classifies,
    enhances, or diminishes the privileges and immunities available to the
    Indian tribe relative to other federally recognized tribes by virtue of
    their status as Indian tribes.'' \27\ We call upon Congress to carry
    its own mandate forward by removing barriers so that all federally
    recognized Tribal Nations may utilize the benefits of the trust
    acquisition provisions of the IRA.
    ---------------------------------------------------------------------------
        \27\ 25 U.S.C. Sec. 5123(f); see also 25 U.S.C. Sec. 5123(g).
    ---------------------------------------------------------------------------
    IV. Tribal Nations Acquire Land into Trust So That We May Exercise
            Jurisdiction Over Our Lands, Not to Establish Casinos Wherever
            We Acquire Trust Land
    A. United States Federal Indian law requires Tribal Nations to Request
            the U.S. Hold Title to Our Lands in Trust so We May Exercise
            Jurisdiction Over Them

        Territorial jurisdiction is a bedrock principle of sovereignty, and
    Tribal Nations must exercise such jurisdiction in order to fully
    implement the inherent sovereignty as self-governing political entities
    that we possess and to serve our people. Just as states exercise
    jurisdiction over their land, Tribal Nations must also exercise
    jurisdiction, thereby promoting government fairness and parity between
    state governments and Tribal Nation governments.
        However, the legal doctrines that have developed through federal
    Indian law hamstring Tribal Nations' exercise of jurisdiction over our
    own territories. Tribal Nations are generally recognized to have
    jurisdiction--albeit limited--over our ``Indian Country.'' \28\ While
    Indian Country includes lands within a Tribal Nation's reservation,\29\
    Tribal Nations seeking to reclaim territorial jurisdiction over land
    must often do so through the arduous and protracted process of trust
    acquisition.\30\ Yet, even trust acquisition is paternalistic, in that
    it requires the federal government to hold title for the benefit of the
    Tribal Nation as a ``beneficial occupant.'' \31\
    ---------------------------------------------------------------------------
        \28\ See, e.g., 25 U.S.C. Sec. 1304.
        \29\ 18 U.S.C. Sec. 1151.
        \30\ See Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian
    Tribe, 498 U.S. 505, 511 (1991).
        \31\ 25 U.S.C. Sec. 5108.
    ---------------------------------------------------------------------------
        At base, a Tribal Nation's request to the United States to take
    land into trust for the Tribal Nation's benefit is simply a common
    prerequisite under the United States' own laws that allows a Tribal
    Nation to exercise its own sovereign powers over its lands and people
    to keep them safe--and even that exercise of jurisdiction is still very
    limited. Tribal Nations' trust acquisition requests are far from
    nefarious, and instead they are a simple attempt to take our rightful
    place in the American family of governments and work within the
    restrictive framework set out for us by United States courts and laws.
    B. Acquiring Land Into Trust Does Not a Casino Make

        The trust acquisition process under the IRA and the Department's 25
    C.F.R. Part 151 (Part 151) implementing regulations and guidance is
    onerous, even if one removes the current requirement to submit evidence
    to demonstrate a Tribal Nation was ``under federal jurisdiction'' in
    1934 as required by Carcieri. This trust acquisition process is
    separate and apart from the process spelled out in the Indian Gaming
    Regulatory Act (IGRA) and the Department's 25 C.F.R. Part 292 (Part
    292) implementing regulations for establishing that land is eligible
    for gaming.
        The Department's Part 151 process is arduous, time-consuming,
    costly, and extremely rigorous for the Department as well as Tribal
    Nations, and neither undertakes a trust acquisition application
    lightly.\32\ Included as one of many hurdles within the Department's
    analysis of the criteria under Part 151 is a legal determination of
    whether the Department has statutory authority for the trust
    acquisition.\33\ At present, as part of this determination when the
    trust acquisition is to take place under the IRA, the Department
    conducts a legal analysis regarding whether the acquisition complies
    with the Supreme Court's interpretation of the IRA in Carcieri. This
    legal examination involves a fact-specific review of a Tribal Nation's
    and its people's relationships with the United States throughout
    history.\34\ The Department consults heavily with the Office of the
    Solicitor regarding this analysis, and a Tribal Nation submits a
    significant amount of evidence to show it meets the legal standard of
    having been under federal jurisdiction in 1934.
    ---------------------------------------------------------------------------
        \32\ See Acquisition of Title to Land Held in Fee or Restricted Fee
    Status (Fee-to-Trust Handbook) (June 28, 2016), available at https://
    www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/pdf/
    Acquisition_of_Title_to_Land_Held_in_Fee_or_Restricted_Fee_Status_50_OIM
    T.pdf.
        \33\ 25 C.F.R. Sec. 151.8(a)(3).
        \34\ 25 C.F.R. Sec. 151.4; Memorandum from Solicitor to Secretary
    re The Meaning of ``Under Federal Jurisdiction'' for Purposes of the
    Indian Reorganization Act, 23-26 (Mar. 12, 2014), available at https://
    www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37029.pdf.
    ---------------------------------------------------------------------------
        However, when a Tribal Nation seeks to game on land, there are
    completely separate criteria and procedures that must be met under IGRA
    and Part 292.\35\ The general rule under IGRA is that gaming is
    prohibited on land acquired into trust after IGRA was enacted in
    1988.\36\ Thus, as a starting point, land taken into trust now is not
    eligible for gaming. There are very limited instances when the
    prohibition does not apply, including when the trust land is within or
    contiguous to a Tribal Nation's 1988 reservation \37\ or certain former
    reservation land,\38\ when lands qualify for an ``equal footing''
    exception available to Tribal Nations,\39\ or when the state's governor
    is involved in the decision to permit gaming under the ``two-part''
    exception.\40\ These narrow allowances are meant to either keep gaming
    contained to a Tribal Nation's reservation as it existed when IGRA was
    enacted or to put Tribal Nations who suffered especially difficult
    inequities on equal footing with other Tribal Nations. The ``two-part''
    exception, while less limited by a Tribal Nation's ties to land, is
    only possible when a state is supportive of the gaming.
    ---------------------------------------------------------------------------
        \35\ 25 U.S.C. Sec. 2719; 25 C.F.R. Part 292.
        \36\ 25 U.S.C. Sec. 2719(a).
        \37\ 25 U.S.C. Sec. 2719(a)(1).
        \38\ 25 U.S.C. Sec. 2719(a)(2).
        \39\ 25 U.S.C. Sec. 2719(b)(1)(B).
        \40\ 25 U.S.C. Sec. 2719(b)(1)(A).
    ---------------------------------------------------------------------------
        Each exemption or exception to the general gaming prohibition
    requires submitting significant amounts of evidence to the Department
    to demonstrate the land meets the very high legal standards to be
    eligible for gaming under IGRA and Part 292. And the starting point of
    the analysis is the general rule that the newly-acquired trust land is
    not eligible for gaming because it was acquired after IGRA's enactment.
        The Department makes a gaming eligibility determination if a Tribal
    Nation's trust acquisition states it seeks to acquire the land for the
    purpose of gaming, and therefore the record of decision to acquire land
    into trust for the purpose of gaming will encompass both the IRA trust
    acquisition decision and the IGRA gaming eligibility decision. Even so,
    it is often a completely different attorney in the Department's Office
    of the Solicitor conducting the gaming eligibility determination under
    IGRA and Part 292 than the attorney conducting the trust acquisition
    determination under the IRA and Part 151. Should a Tribal Nation later
    decide to game on land it has acquired into trust, the National Indian
    Gaming Commission rather than the Department makes the gaming
    eligibility determination under the standards of IGRA and Part 292,
    often through approval of a gaming ordinance, but the legal standards
    and evidentiary burdens remain just as high.
        Any concern that a Tribal Nation acquiring land anywhere into trust
    will automatically be able to game on that land is not grounded in
    reality or truth, but this misinformation is being used as a fear
    tactic to the uninformed ear. The process of receiving approval to game
    on land acquired into trust is extremely burdensome, costly, and
    difficult.
        Indeed, as Deputy Assistant Secretary for Indian Affairs Kathryn
    Isom-Clause explained during the hearing, only a very small
    percentage--about one to three percent at most--of trust acquisition
    requests are made for the purpose of gaming. Most others are made for
    the simple need to establish territorial jurisdiction, as described
    above.
    V. Tribal Nations May Choose to Exercise Our Sovereign Authority to
            Enter Into Cooperative Agreements with States, But This Must Be
            Our Choice

        There are many positive effects of Tribal Nations entering into
    cooperative agreements with local governments, including related to
    provision of emergency services, and many Tribal Nations do enter into
    such agreements. By investing our own resources in state and local
    governments' services, we are able to help ensure the quality of
    services. However, we stress that it is imperative such agreements are
    not a prerequisite to acquisition of trust land.
        There is no language within the IRA that supports such a
    requirement.\41\ And, for the limited percent of trust acquisitions
    that are for gaming purposes, IGRA specifically prohibits states from
    imposing any tax, fee, charge, or other assessment upon Tribal
    Nations.\42\
    ---------------------------------------------------------------------------
        \41\ 25 U.S.C. Sec. 5108.
        \42\ 25 U.S.C. Sec. 2710(d)(4).
    ---------------------------------------------------------------------------
        Instead, Congress understood when it enacted the IRA that returning
    Tribal Nations' lands to our territorial ownership, control, and
    jurisdiction may have some negative impacts on surrounding state and
    local governments. However, the IRA's trust acquisition provision was
    meant to undo past unjust and ineffective federal Indian laws and
    policies that often benefited non-Indians. In enacting the IRA,
    Congress upheld its trust and treaty obligations to Tribal Nations by
    prioritizing our interests, even if state and local governments may
    occasionally experience side effects stemming from its application,
    including a loss of jurisdiction or tax revenue.\43\ In fact, Congress
    noted in Section 5 of the IRA that lands acquired into trust ``shall be
    exempt from State and local taxation''--thereby stating with clarity
    its understanding that local interests may be harmed but that such harm
    is nonetheless necessary.\44\ Additionally, prior to enactment,
    congressional members discussed in great detail the resulting removal
    of trust land from state taxation, knowingly moving forward with
    enactment.\45\
    ---------------------------------------------------------------------------
        \43\ Since 1977, the Department has issued billions of dollars in
    Payments in Lieu of Taxes (PILT) to local governments that help offset
    losses in property taxes due to the existence of nontaxable federal
    lands within their boundaries. However, while PILT payments are made
    for lands administered by the U.S. Bureau of Land Management, National
    Park Service, Fish and Wildlife Service, and Forest Service (part of
    the U.S. Department of Agriculture) and for Federal water projects and
    some military installations, lands held in trust for Tribal Nations are
    not currently eligible. USET SPF believes that PILT (or a PILT-like
    mechanism) for lands put into trust could help remove opposition to the
    restoration of Tribal homelands while also easing the perceived burdens
    of and impacts to local government as a result of lost tax revenue.
        \44\ 25 U.S.C. Sec. 5108.
        \45\ See, e.g., 73rd Cong. Rec. 9268 (Daily ed. May 22, 1934)
    (Statement of Rep. Hastings); To Grant To Indians Living Under Federal
    Tutelage The Freedom To Organization For Purposes Of Local Self-
    Government And Economic Enterprise, 73rd Cong. 28 (1934) (Statement by
    Commissioner Collier).
    ---------------------------------------------------------------------------
        The Department has built into Part 151 procedural mechanisms to
    consider local government interests and provide those governments
    commenting opportunities. For trust acquisitions pursuant to the IRA,
    the Department must notify the state and local governments having
    regulatory jurisdiction over the land to be acquired and consider their
    feedback.\46\ Each notified party is given 30 days to provide written
    comments regarding potential impacts on regulatory jurisdiction, real
    property taxes, and special assessments.\47\ Part 151 also calls for
    compliance with NEPA.\48\ As part of its Environmental Compliance
    Review under NEPA, the Department provides state and local governments
    with an extensive opportunity to comment and then considers comments
    received. These commenting opportunities and commenting periods are
    more than sufficient, especially when considering that no commenting
    opportunity is provided to Tribal Nations when states take actions that
    affect us.
    ---------------------------------------------------------------------------
        \46\ 25 C.F.R. Sec. Sec. 151.9(d), 151.10(d), 151.11(c), 151.12(d).
        \47\ 25 C.F.R. Sec. Sec. 151.9(d), 151.10(d), 151.11(c), 151.12(d).
        \48\ 25 C.F.R. Sec. Sec. 151.8(a)(5), 151.15.
    ---------------------------------------------------------------------------
        Rather than focusing on the bad things states and local governments
    fear might happen if Tribal Nations acquire our land into trust, we
    should be focusing on all the good that does happen when Tribal Nations
    have success in rebuilding our homelands. USET SPF does not dismiss the
    fact that trust land acquisition can have a range of impacts on local
    communities in the area in which the land is located--but it should not
    be forgotten that these are often the same communities that benefited
    by gaining control of Tribal Nations' lands as a result of policies the
    IRA was intended to reverse. And it should be noted that, when Tribal
    Nations are able to exercise jurisdiction over our lands, surrounding
    communities and the United States as a whole benefit from the economic
    prosperity generated. Additionally, many Tribal Nations enter into
    agreements whereby we provide emergency and other essential services
    not just to our own lands but also to surrounding communities--seeking
    to ensure the safety of all.
    VI. Conclusion

        USET SPF thanks the Subcommittee for taking the time to conduct
    this oversight hearing. The importance of the IRA and its trust
    acquisition authority to Tribal Nations cannot be overstated. Full and
    equitable access to the IRA's trust acquisition authority is absolutely
    fundamental to our ability to thrive as vibrant, healthy, self-
    sufficient governments within the United States. The United States took
    an important step in the right direction when it enacted the IRA to
    help restore Tribal Nations' stolen homelands, and Congress must act
    now to remove the faulty barrier to the IRA's implementation erected by
    the Supreme Court's decision in Carcieri. USET SPF hopes this testimony
    has been helpful in illuminating that the IRA's underlying goals and
    the tools it gave us must be protected and strengthened as we continue
    to improve federal Indian law and policy and, through it, the lives of
    our people.

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