[Senate Hearing 118-418]
[From the U.S. Government Publishing Office]
S. Hrg. 118-418
S. 2908, S. 3263, S. 4000, AND S. 4442
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JUNE 12, 2024
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
56-888 PDF WASHINGTON : 2024
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana STEVE DAINES, Montana
CATHERINE CORTEZ MASTO, Nevada MARKWAYNE MULLIN, Oklahoma
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico
Jennifer Romero, Majority Staff Director and Chief Counsel
Amber Ebarb, Minority Staff Director
C O N T E N T S
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Page
Hearing held on June 12, 2024.................................... 1
Statement of Senator Britt....................................... 5
Statement of Senator Daines...................................... 37
Statement of Senator Heinrich.................................... 4
Statement of Senator Murkowski................................... 2
Statement of Senator Schatz...................................... 1
Statement of Senator Tester...................................... 3
Witnesses
Bryan, Hon. Stephanie, Chair/CEO, Poarch Band of Creek Indians... 11
Prepared statement........................................... 12
Carlson, Sr., Ervin, President, Intertribal Buffalo Council...... 28
Prepared statement........................................... 29
Mejia, Hon. Andy, Chairperson, Lytton Rancheria of California.... 21
Prepared statement........................................... 22
Newland, Hon. Bryan, Assistant Secretary, Indian Affairs, U.S.
Department of the Interior..................................... 6
Prepared statement........................................... 8
Whiteclay, Hon. Frank, Chairman, Crow Nation of Montana.......... 24
Prepared statement........................................... 25
Appendix
Hill, Hon. David, Principal Chief, Muscogee (Creek) Nation,
prepared statement............................................. 41
Letters submitted for the record by:
Cody Sammut.................................................. 44
Mekko George Thompson........................................ 45
Alan Titus................................................... 43
Hon. Marvin Weatherwax, Jr................................... 46
Response to written questions submitted by Hon. Lisa Murkowski to
Hon. Bryan Newland............................................. 47
S. 2908, S. 3263, S. 4000, AND S. 4442
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WEDNESDAY, JUNE 12, 2024
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:32 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. During today's legislative
hearing, we will consider the following bills: S. 2908, The
Indian Buffalo Management Act; S. 3263, the Poarch Band of
Creek Indians Parity Act; S. 4000, A Bill to Reaffirm the
Applicability of the Indian Reorganization Act to the Lytton
Rancheria of California, and for other purposes; and S. 4442,
the Crow Water Rights Settlement Amendment Act of 2024.
Before we begin, I want to say a few words about the
Supreme Court's misguided decision in Carcieri v. Salazar. The
Carcieri decision put rebuilding tribal homelands into a
tailspin, and for 15 years, it has slowed Interior's land-into-
trust process and frustrated Indian Country, increased
administrative costs and spurred often needless litigation. So
I think we are all clear that we support legislation to fix
Carcieri for all tribes.
I share Indian Country's frustration with Congress' failure
to pass a universal fix. But we have to recognize that Congress
has acted on tribal specific legislation before, and Senator
Britt's and Senator Padilla's bills are in line with those past
successful efforts.
With that, I will briefly describe today's bill with a more
fulsome description entered into the record.
S. 2908 was introduced by Senators Heinrich and Mullin. The
bill would establish a buffalo management program at BIA to
help tribes and tribal organizations manage buffalo herds and
habitat for cultural, subsistence and economic development
purposes.
S. 3263 was introduced by Senator Britt and Senator
Tuberville. This bill would reaffirm the Indian Reorganization
Act's applicability to the Poarch Band of Creek Indians and
ratify the trust status of lands the tribe previously acquired
administratively.
S. 4000 was introduced by Senator Padilla. The bill would
reaffirm the Indian Reorganization Act's applicability to the
Lytton Rancheria of California and clarify that the tribe is
eligible to have its lands taken into trust through the
Department of Interior's land-into-trust process.
Our final bill on the agenda is S. 4442, introduced by
Senator Tester and Senator Daines. This bill would amend the
Crow Tribe Water Rights Settlement Act of 2010 to change the
scope of the water infrastructure system authorized under that
Act to provide the Crow tribe more flexibility in developing
regional irrigation and municipal and industrial water
projects, and to allow the tribe additional time to develop
hydropower projects to deliver clean energy and water to the
reservation.
Before I turn to the Vice Chair for her opening statement,
I would like to extend our welcome and thanks to the witnesses
for joining us today. I look forward to your testimony and our
discussion.
Vice Chair Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I appreciate
today's hearing. You have covered much of the details of the
bills that will be before us.
I want to discuss quickly S. 2908, the Indian Buffalo
Management Act, this has impacts on my State. It would make
permanent the small but important program operated by the BIA
that is rebuilding buffalo populations on tribal lands.
The Indian Buffalo Management Act was first introduced in
the House during the 116th Congress by my friend and Alaska's
Congressman, Don Young. We know the history, the story of the
Plains bison and how they were a vital source of food and
nutrition for Native people. Tens of millions of buffalo once
roamed the west until they were decimated in the 1800s by
misguided and inhumane policies of the forced removal area.
Today, the Federal Government is partnering with tribes and
tribal organizations like the Intertribal Buffalo Council to
reestablish bison herds. I never know whether to say ``bison''
or ``bizon'' [phonetically], I think it depends on the part of
the Country you are in. Take it whichever way it makes you
happiest.
What we are trying to do is, again, reestablish these herds
for economic development as a traditional food source and
provide food security for Native communities. We have two
communities in Alaska, Old Harbor and Stevens Village, that are
part of this. Both communities manage herds that total around
500 buffalo, so now it is buffalo, not bison.
This is a new subsistence species for them. Some of the
bison in Alaska today were rounded up and relocated from the
lower 48, with assistance from the buffalo program. In recent
years, Interior has assisted with the transfer of surplus bulls
from Yellowstone National Park to Alaska. So if you ask the
question, how do they get from Yellowstone to Alaska, they put
these one-ton animals on a FedEx plane, then they transport
them by barge and truck and occasionally helicopter to their
new homes. Once they make it to places like Kodiak Island, they
roam free and have a pretty good life there.
But as the original sponsor of the Indian Buffalo
Management Act, Don Young understood that the BIA program could
be utilized to improve the health and genetic diversity of the
herds in our State. But in order to build this food source,
resources are needed to cover the cost of transporting more
cows, calves, and mobile slaughter facilities to the interior
villages. Because as you can imagine, it is not cheap. But we
are looking forward to additional resources to help not only
develop the program, but to expand training and educational
opportunities for the tribal herd managers.
So it is a good bill. I am pleased that Assistant Secretary
Newland is here. We will have some questions for him on that.
I appreciate the testimony of the witnesses that are before
the Committee here today.
The Chairman. Thank you, Vice Chair.
First, Senator Tester, and then I am going to go a little
bit out of order and have Senator Heinrich make some opening
remarks, because he has to chair a different hearing.
Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you very much, Mr. Chairman and Vice
Chair Murkowski.
This is really a good hearing. I commend you both for
having it. These are important bills that need to get advanced,
and today is the start of that.
I also want to thank Chairman Whiteclay for being here
today. Chairman Whiteclay is the leader of the Crow Tribe. I am
grateful for his strong leadership on important issues like law
enforcement, fiscal management, infrastructure.
This Crow Water bill in front of the Committee today is an
excellent example of the good work that the Chairman is doing
serving his tribe. This bill would not be in the shape it is
today without his strong leadership, and we thank you for that.
I also want to recognize my friend, Erv Carlson. Erv, it is
great to have you here. He is a member of the Blackfeet Tribe,
and a long-time champion for Indian buffalo management. I am
glad to see the Buffalo Management Act getting here, and I
think it is a very important piece of legislation.
But I want to talk a minute about water and the Crow Water
bill that is on today's agenda. Many years ago, my Native
friends told me that water is life, and it is, for all lives.
It powers Montana's economies, it is critical to the health of
our communities, it connects us together. That is why it is
critical that the Crow Tribe has the tools and infrastructure
they need to deliver clean water to its communities.
This bipartisan Crow Water Settlement Amendment Act will do
exactly that. It will provide the tribe vital flexibility in
developing water infrastructure, using the most up-to-date
technology to create water systems that are more cost-effective
and work for the Crow Tribe and the region. It will also
bolster energy development by extending the timeline for the
tribe to develop hydropower on the Yellowtail Afterbay Dam
until 2030, providing clean energy that will provide an
economic boost to the Crow community.
Chairman Schatz, Vice Chair Murkowski, I am pleased to
share that we can accomplish all this with no additional cost,
without changing any existing water rights, and without
reopening the water settlement. The Crow Water Settlement
Amendments Act is a simple, made-in-Montana solution that is
going to help the Crow Tribe develop the infrastructure needed
to deliver clean water to the folks for years to come.
Lastly, I want to quickly add that I am glad to see the
Poarch bill, and Katie Britt, thank you very, very much for
your leadership on this. It is a long time coming.
And the Lytton bill, if Senator Padilla was here, I would
say the same thing to him. Those bills are important. These
bills would restore the Secretary of Interior's authority to
take land into trust for the tribes. I am a long-time supporter
of this effort, following the enforcement of the 2009 Supreme
Court decision that wrongly oppressed some tribes for having
land taken into trust.
With that, once again, Mr. Chairman, Vice Chair, thank you
for having this hearing.
The Chairman. Thank you very much, Senator Tester, and
thank you for your leadership on all these issues.
Senator Heinrich?
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Chairman Schatz, and I want to
thank Vice Chair Murkowski for your words as well.
Several years ago, I was proud to lead, along with Senator
Hoeven, the effort to designate the bison as our national
mammal. This species has been a critical part of our culture in
New Mexico, across the west, most especially in Indian Country.
The growth of tribal buffalo herds over the last few
decades is both a symbol of the enduring resilience of this
iconic species and a major economic development opportunity for
many tribes. Dozen of tribes and several in New Mexico,
including the Pueblos of Taos and Picuris, Pojoaque and Sandia,
have done important work to establish tribal buffalo herds on
their lands.
I have been privileged to see this first-hand. Two years
ago, I visited Picuris Pueblo and went out with the herd
manager, Danny Sam, to see their operation up close. I learned
about how the community is reincorporating bison meat back into
their diets. The tribal herd at Picuris has allowed the Pueblo
to distribute much of that healthy, locally grown, culturally
important protein to the community for free.
Our bipartisan, bicameral bill, the Indian Buffalo
Management Act, would strengthen Federal support for tribal
bison programs like the one I saw at Picuris. It would
authorize a permanent program at Interior and provide dedicated
funding to promote and develop capacity for tribes to manage
those buffalo herds.
As you will hear from Erv Carlson from the InterTribal
Buffalo Council, establishing and managing a new bison herd is
a resource-intensive process for tribes. There is a very real
need for technical and resource support.
I want to thank you, Erv, and ITBC for all of your
guidance, all of your feedback, that helped us as we drafted
this legislation, and for your organization's support for
tribal bison herds all across Indian Country.
I would also like to thank my Republican partner on this
bill, Senator Markwayne Mullin, and our bipartisan colleagues
in the House, Representatives Doug LaMalfa and Mary Peltola.
Finally, I would be remiss if I did not also recognize the late
Representative Don Young, who was one of the original leaders
in this effort in Congress.
Thank you, Chairman Schatz and Vice Chair Murkowski, for
giving me time to speak on this bill. I hope that in my
lifetime, thanks in large part to these tribal buffalo herds,
we will see bison return to the prominent place that it once
occupied as a keystone species on America's short grass
prairies.
The Chairman. Thank you very much, Senator Heinrich.
I will now turn to our witnesses. We are happy to see the
most frequent of frequent fliers in this Committee, the
Honorable Bryan Newland, Assistant Secretary for Indian Affairs
at the Department of Interior. Welcome.
The Honorable Andy Mejia, Chairperson of the Lytton
Rancheria of California, in Winsor, California; Mr. Erv
Carlson, Sr., President of the InterTribal Buffalo Council in
Rapid City, South Dakota.
Senator Tester, would you do the honors of introducing our
next witness?
Senator Tester. It would be an honor to do the honors.
Chairman Whiteclay, who I addressed in my opening
statement, is the leader of the Crow Tribe. I would just tell
you, when Chairman Whiteclay took over the Crow Tribe, it was
not under the best of leadership, and that is being generous.
Frank stepped forward, he put financial responsibility as a
key part of his administration, and he is working hard to make
sure it remains that way. He put law enforcement as a keystone
of his administration, and he is working hard to keep Crow
Country safe. This bill deals with infrastructure, and that is
another area that Chairman Whiteclay has done great work on.
It is great to have you here. I know this is not an easy
trip to make, but we certainly appreciate your making the trip.
The Chairman. Thank you very much, Senator Tester.
We are pleased to have Senator Britt to both introduce her
guest and talk a little bit about the legislation pending
before the Committee. Senator Britt?
STATEMENT OF HON. KATIE BRITT,
U.S. SENATOR FROM ALABAMA
Senator Britt. Thank you so much. I appreciate the
opportunity, Chair Schatz, and Vice Chair Murkowski, for the
ability to be here today and introduce Stephanie Bryan, the
Poarch Creek Indians Tribal Chair and Chief Executive officer
to this Committee today. Stephanie, it is an honor to introduce
you.
Chairwoman Bryan is here testifying to S. 3262, the Poarch
Band of Creek Indians Parity Act. This bill is intended to
clarify that the Poarch Band of Creek Indians should be
considered as now under Federal jurisdiction for the purposes
of the Indian Reorganization Act. The Poarch Band of Creek
Indians is a critical part of Alabama's culture and heritage.
As a leader of the Poarch Nation, Chairwoman Bryan
represents the tribe's interests at both the State and national
level. She is nationally recognized as an advocate on issues
critically important to Indian Country, and serves in several
significant national roles.
In Alabama, Chairwoman Bryan works directly with the
governor, State agencies, and local leaders. Her service in her
community and in State leadership positions is truly
incredible. She serves on the business council of Alabama's
Executive Committee, Leadership Alabama, Montgomery Area
Chamber of Commerce, Mobile Area Chamber of Commerce, just to
name a few. Through these roles, she contributes directly to
the growth of our great State.
She has also been instrumental in growing the Poarch Creek
Tribe's business portfolio. Last year, Business Alabama
recognized her as the publication's first ever CEO of the Year.
The Poarch Creek Indians have a growing business supporting
the Department of Defense, NASA, and the tribe continues to
reinvest over a billion dollars just in the last decade alone
into over 40 businesses across a range of industries.
Chairwoman Bryan, thank you for testifying today. We are
grateful for your service to the community, the State, our
Nation and the tribe. We are excited to have you here.
The Chairman. Thank you very much, Senator Britt.
Are there any other members wishing to make an opening
statement? If not, I want to remind our witnesses that your
full written testimony will be made part of the official
hearing record, and so if you could please keep your remarks to
five minutes or fewer, the Committee would appreciate that.
We will start with Assistant Secretary Newland. Please
proceed with your testimony.
STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT
SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Newland. Boozhoo, [phrase in Native tongue.] Good
afternoon, Chairman Schatz, Vice Chair Murkowski, members of
the Committee.
My name is Bryan Newland, I have the privilege of serving
as the Assistant Secretary for Indian Affairs. I am glad to be
back again in front of the Committee to testify on these four
bills. I want to say right from the get-go that the department
supports passage of each of these bills.
S. 2908, the Indian Buffalo Management Act, would establish
a permanent program within the department to develop, promote
and support tribal management of buffalo and buffalo habitat on
Indian lands. This bill would also authorize $14 million in
annual appropriations to support this work.
This legislation will advance food sovereignty and support
the protection and revitalization of cultural practices for
tribes all across the United States. It will also support the
department's efforts to work with tribes in co-stewardship of
ecosystems and wildlife.
S. 3263 and S. 4000 would ensure that the Poarch Band of
Creek Indians and the Lytton Band of Pomo Indians have the
ability to restore and protect their tribal homelands under the
Indian Reorganization Act. Since the Carcieri decision, the
department must examine whether each tribe seeking to have land
placed into trust under the Indian Reorganization Act was
``under Federal jurisdiction in 1934.'' This analysis is done
on a tribe-by-tribe basis and is both time consuming and costly
for tribes as well as the department.
The ability to restore and protect tribal homelands is an
important part of our trust responsibility, and it has been the
policy of the United States for nearly a full century.
In addition to S. 3263 and S. 4000, the department has
consistently expressed strong support for a universal
legislative solution to the Carcieri decision for all tribes.
The department urges Congress to consider a legislative fix to
the Carcieri decision for all tribes to eliminate the need for
each tribe to seek its own separate legislation.
S. 4442 would amend the Crow Tribe Water Rights Settlement
Act of 2010 by establishing a non-trust fund account to allow
the Bureau of Reclamation to continue work on rehabbing the
Crow Irrigation Project in a new municipal, rural, and
industrial projects trust fund to be used by the Crow Tribe for
specified purposes.
This Administration recognizes that water is a sacred and
valuable resource for tribes, and that longstanding water
crises continue to undermine public health and economic
development all across Indian Country. Access to water is
fundamental to human existence and economic opportunity, and
that is no less true for people in tribal communities.
This bill would not increase funding for the Settlement
Act. Instead, it simply changes the way some of the funds are
held and expended.
When the Crow Water Rights Settlement Act, that is hard to
say all at once, when that law was passed it did not provide
for the creation of a non-trust interest-bearing account for
funds appropriated for project construction. More recent Indian
water rights settlements have provided for such accounts to
allow funds to accrue interest while projects are being
planned, designed, and constructed.
This bill would authorize the establishment of a non-trust,
interest-bearing account in Treasury to receive the funds
already appropriated as well as future appropriations for the
Crow Irrigation Project rehabilitation.
S. 4442 would convert the MR&I portion of that settlement
act from an infrastructure based settlement act from an
infrastructure based settlement to a trust fund based
settlement. It would direct the Secretary to establish in the
existing Crow Tribe water rights settlement trust fund a new
MR&I projects account. The tribe would use funds from this
account for several purposes: planning, designing and
constructing MR&I systems; planning, designing and constructing
wastewater treatment facilities; and purchasing on-reservation
land with water rights.
Finally, this bill would extend the period during which the
tribe has the exclusive right to develop hydropower at the
Yellowtail Afterbay Dam until 2030.
Again, the department is pleased to support each of these
bills and is willing to provide further technical assistance to
sponsors and members of the Committee upon request.
Chairman Schatz and members of the Committee, I want to
thank you again for the opportunity to testify today. I look
forward to answering any questions you may have.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Hon. Bryan Newland, Assistant Secretary, Indian
Affairs, U.S. Department of the Interior
Good afternoon, Chairman Schatz, Vice Chairman Murkowski, and
members of the Committee. My name is Bryan Newland, and I am the
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to present
testimony on S. 2908, ``Indian Buffalo Management Act,'' S. 3263,
``Poarch Band of Creek Indians Parity Act,'' S. 4000, ``To reaffirm the
applicability of the Indian Reorganization Act to the Lytton Rancheria
of California, and for other purposes,'' and S. 4442, ``To amend the
Crow Tribe Water Rights Settlement Act of 2010 to make improvements to
that Act, and for other purposes.''
S. 2908, Indian Buffalo Management Act
The North American Bison, commonly called buffalo, is the official
mammal of the United States and plays an important role in the history
and ecology of this continent. For many Tribes, buffalo play a
significant role in their identity, subsistence, economic development,
and conservation and land management practices. The historical,
cultural, and spiritual connection between buffalo and Tribes cannot be
overstated. Buffalo sustained many Indian Tribes in North America for
many centuries before they were nearly exterminated by non-Indian
hunters in the mid-1800s.
Indian Tribes have long desired the reestablishment of buffalo
throughout Indian Country. The successful restoration of buffalo allows
an Indian Tribe to benefit from the reintroduction of buffalo into the
diets of the members of the Indian Tribe. Working to restore buffalo
and increase Tribal access to buffalo is a priority for the Biden
administration and for Secretary Haaland. The BIA's Branch of Fish,
Wildlife, and Recreation funds buffalo restoration and management
activities through annual appropriations. S. 2908, the Indian Buffalo
Management Act, would establish a permanent program within the
Department to develop and promote Tribal ownership, conservation, and
management of buffalo and buffalo habitat on Indian lands.
Under S. 2908, two entities are eligible for program participation:
Indian Tribes, as defined by the Indian Self-Determination and
Education Assistance Act (ISDEAA), and Tribal organizations organized
under Section 17 of the Indian Reorganization Act (IRA). The Department
recommends amending the definition of ``Tribal organization'' to avoid
the exclusion of Tribal corporations Federally chartered under Section
3 of the Oklahoma Indian Welfare Act, P.L. 74- 816, or Tribal
organizations contracting for the administration and operation of
certain Federal programs which provide services to Indian Tribes and
their members. The Department looks forward to working with the
sponsors on these issues.
S. 2908 authorizes $14 million in annual appropriations. The
Department previously testified on H.R. 6368, the House companion to S.
2908, in which we raised concerns about the lack of dedicated funding
for the activities authorized under H.R. 6368. For both bills,
activities will be eligible for contracting or compacting by Tribes
under ISDEAA. In the event of a Tribe utilizing ISDEAA, as amended, to
contract or compact that permanent program, the Secretary may be
required to utilize funds from other programs to meet the Department's
statutory obligations under ISDEAA. The Department appreciates the
opportunity to work with Congress to ensure that we have the resources
to implement the provisions of S. 2908 if enacted and strongly supports
the provision authorizing dedicated funding.
Buffalo once roamed this continent in the tens of millions and the
Department appreciate efforts to improve management of this vital
species. The Department recognizes our shared interest in modernizing
buffalo management in Indian Country and appreciates Congress's
attention to this effort. The Department supports S. 2908. The
Department welcomes the opportunity to work with the sponsors and the
Committee to provide technical assistance to clarify eligible entities
and to ensure that other offices at the Department can enter into co-
stewardship and comanagement agreements with Indian Tribes.
S. 3263 and S. 4000 and the Impacts of the Carcieri v. Salazar Decision
In Carcieri v. Salazar, the United States 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. 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. The
Tribes at issue in S. 3263 and S. 4000 are just two of the many Tribes
who have experienced undue burdens to reclaim and develop their lands.
S. 3263 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.
S. 4000 would clarify that the IRA applies to the Lytton Rancheria
and that the Secretary has the authority to take land into trust for
the Lytton Tribe under Section 5 of the IRA. The bill would also deem
lands taken into trust under Section 5 of the IRA for the Lytton
Rancheria as part of the Tribe's reservation and would be administered
accordingly.
The Department supports S. 3263 and S. 4000. 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 longstanding policy of
fostering Tribal selfdetermination. 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. In addition to S. 3263 and S. 4000,
the Department has consistently expressed strong support for a
universal legislative solution to the Carcieri decision for all Tribes.
Further, the President's budgets for fiscal years 2024 and 2025
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 the complex review of whether a Tribe was ``under Federal
jurisdiction'' in 1934. The Department urges Congress to consider a
legislative fix to Carcieri decision for all Tribes to eliminate the
need for each Tribe to seek separate legislation.
S. 4442, Crow Tribe Water Rights Settlement Amendments Act of 2024
S. 4442 would amend the Crow Tribe Water Rights Settlement Act of
2010 (Pub. L. 111-291; 124 Stat. 3097) (``Settlement Act''). The
Department supports S. 4442 and recommends an amendment to the bill,
which we have discussed with the Crow Tribe, that would ensure that
trust fund expenditures prioritize providing clean drinking water over
land acquisitions.
Introduction
The Biden Administration recognizes that water is a sacred and
valuable resource for Tribal Nations and that long-standing water
crises continue to undermine public health and economic development in
Indian Country. This Administration strongly supports the resolution of
Indian water rights claims through negotiated settlements. Indian water
settlements help to ensure that Tribal Nations have safe, reliable
water supplies; improve environmental and health concerns on
reservations; enable economic growth; promote Tribal sovereignty and
self-sufficiency; and help advance the United States' trust
relationship with Tribes. At the same time, water rights settlements
have the potential to end decades of controversy and contention among
Tribal Nations and neighboring communities and promote cooperation in
the management of water resources.
Congress plays an important role in approving Indian water rights
settlements and we stand ready to work with this Committee and Members
of Congress to advance Indian water rights settlements and ensure their
successful implementation.
Indian water rights settlements play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do to improve the lives of everyday people--including
Tribal Nations. We have a clear charge from President Biden and
Secretary Haaland to improve water access and water quality on Tribal
lands. Access to water is fundamental to human existence, economic
development, and the future of communities--especially Tribal
communities.
Background
The Settlement Act authorized $460 million, indexed to inflation,
for the Bureau of Reclamation to plan, design and construct two major
projects on the Crow Reservation: (1) the rehabilitation and
improvement of the Crow Irrigation Project (CIP), and (2) the design
and construction of a Municipal, Rural, and Industrial (MR&I) water
system. Both projects were to be designed and constructed as generally
described in detailed engineering reports prepared by consultants to
the Tribe and cited in the Settlement Act. In addition, the Settlement
Act gave the Tribe a 15-year exclusive right to construct hydropower
facilities at the Yellowtail Afterbay Dam, a Bureau of Reclamation
facility. That exclusive right expires in 2025.
Proposed Amendment
S. 4442 would amend the Settlement Act by establishing a non-trust
fund account to allow the Bureau of Reclamation to continue work on
rehabilitation of the CIP and a new MR&I projects trust fund to be used
by the Tribe for (i) planning, permitting, designing, engineering,
constructing, reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery infrastructure,
including for domestic and municipal use or wastewater infrastructure;
(ii) purchasing on-Reservation land with water rights; and (iii)
complying with applicable environmental laws. The amendments do not
increase the funding for the Settlement Act but merely change the way
some funds are held and expended. If enacted as written, it is our
interpretation that while the Amendment would repeal Section 406 in its
entirety, funding for the MR&I projects trust fund would not exceed
$246,381,000, as indexed, as provided in section 414(b) of the
Settlement Act (which would be redesignated as 415(b) pursuant to S.
4442).
When the Settlement Act was enacted, it did not provide for the
creation of a non-trust interestbearing account for funds appropriated
for project construction. Subsequent Indian water rights settlements
have provided for such accounts to allow funds to accrue interest while
projects are being planned, designed, and constructed. Because the
Settlement Act did not provide this authorization, the Department and
the Tribe instead opened a joint-signature account with a private bank
for the investment of settlement funds. While this has allowed the
funding to earn interest, it has come with costs associated with
maintaining a private bank account. The Tribe now seeks to establish a
non-trust interest-bearing account in Treasury so it can enjoy the
benefits of earning interest without having to pay management fees to a
private banking institution. S. 4442 would authorize the establishment
of a non-trust interest-bearing account in Treasury to receive the
funds already appropriated and yet to be appropriated for CIP
rehabilitation. Reclamation would continue to be the lead agency
responsible for the planning, design, and construction of CIP
rehabilitation features.
With respect to the MR&I system, S. 4442 would convert this portion
of the Settlement Act from an infrastructure-based settlement to a
trust fund-based settlement. S. 4442 would direct the Secretary to
establish in the existing Crow Tribe Water Rights Settlement Trust Fund
a new ``MR&I Projects'' account. The Tribe could then use funds from
this account for several authorized purposes: plan, design, and
construct MR&I systems; plan, design, and construct wastewater
treatment facilities; and purchase on-Reservation land with water
rights. S. 4442 would provide the Tribe with flexibility and discretion
to plan, design, and construct the MR&I and wastewater systems that it
believes will best serve communities on its Reservation.
Finally, S. 4442 would extend by five years the period during which
the Tribe has the exclusive right to develop hydropower at the
Yellowtail Afterbay Dam, to 2030.
The Department supports S. 4442. Allowing the Tribe to use the
funding authorized for a large, centralized MR&I system to instead
build smaller MR&I projects will allow it to make decisions regarding
how, when, and where to develop water infrastructure on the
Reservation. This approach is consistent with Tribal sovereignty and
self-determination. We would like to work with the Tribe and the
Committee, however, to include language in S. 4442 to ensure that trust
fund expenditures prioritize providing clean drinking water over land
acquisitions. The expansion of the authorized uses from a single use
(MR&I) to multiple uses, including wastewater projects and purchases of
land with water rights, will necessarily reduce the amount of funding
available for badly needed drinking water systems on the Reservation.
Provisions prioritizing funding for MR&I would ensure safe, reliable
drinking water for the Tribe.
Conclusion
Chairman Schatz, Vice Chairman Murkowski, and members of the
Committee, thank you for the opportunity to provide the Department's
views.
The Chairman. Thank you very much, Secretary Newland.
We are pleased to welcome Chair Bryan. Please proceed with
your testimony.
STATEMENT OF HON. STEPHANIE BRYAN, CHAIR/CEO, POARCH BAND OF
CREEK INDIANS
Ms. Bryan. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. My name is Stephanie
Bryan, and I am honored to be the Chair and CEO of The Poarch
Band of Creek Indians.
I greatly appreciate this opportunity to testify today
about the Poarch Band of Creek Indians Parity Act. I want to
thank Senator Britt and Coach Tuberville for introducing this
bill.
The Poarch Band of Creek Indians has been a leading
advocate for a national Carcieri fix to clarify that the Indian
Reorganization Act applies to all federally recognized tribes.
We offer our full support to the Tester-Moran bill, Senate Bill
563, which would accomplish that goal.
We will continue to work to pass a national fix, but our
tribe, like many others, has been forced to take a parallel
approach by working with our Congressional delegation to
clarify that the IRA applies to our tribe. For decades, Poarch
Creek 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 and fire protection,
health care, elder care, education and infrastructure.
We have made careful decisions about how best to use our
resources and our property. But we have a limited land base,
and we can't meet the growing needs for housing and other
essential services for our citizens.
In 2018, it became clear that we needed to expand our Boys
and Girls Club, but we didn't have the trust land. So that cost
us $1 million to do an area where our ponds are located.
But we are not alone. Tribal governments nationwide have a
shortage of usable trust land and seek to acquire trust lands
to meet basic needs of our people.
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. It has
led to frivolous lawsuits challenging the status of these trust
lands.
The tribe has spent almost $10 million to defend ourselves
against attacks on our sovereignty. Thankfully, every court
reviewing these frivolous cases has upheld the status of our
lands, which the Interior placed into trust decades ago.
However, these lawsuits have taken a toll, and that is why
our tribe is seeking a legislative solution that will provide
us with much-needed clarity. Our bill affirms that the IRA
applies to our tribe and it allows us to be treated fairly,
like other federally recognized tribes.
These frivolous lawsuits have not just hurt us; they have
cost taxpayer dollars, because the Interior Department and DOJ
have had to use their budgets to defend our trust lands. This
bill has strong support from the Alabama Congressional
delegation, also, the cities and counties that surround us.
I respectfully ask the Committee to mark up Senate Bill
3263 and pass the bill before the end of the year. On behalf of
our tribe, I am honored to testify today and will answer any
questions that you may have.
[Phrase in Native tongue].
[The prepared statement of Ms. Bryan follows:]
Prepared Statement of Hon. Stephanie Bryan, Chair/CEO, Poarch Band of
Creek Indians
Good afternoon, Chair Schatz, Vice Chair Murkowski, and Members of
the Committee. 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 S. 3263, the Poarch Band of
Creek Indians Parity Act. On behalf of the Tribal Council, I extend our
great thanks to Senators Britt and Tuberville 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\
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\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. 83, at 3 (Dec. 29, 1983).
\2\ 7 Stat. 120 (Aug. 9, 1814).
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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\
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\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.
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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).
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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\
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\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).
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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 an historical Indian
Tribe. We remain based on the McGhee reserve, which was never
disestablished. \8\
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\8\ History, Poarch Band of Creek Indians, https://pci-nsn.gov/our-
story/history/(last visited June 7, 2024).
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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\
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\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)).
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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 S. 3263, 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, we were forced to fill in the ponds around the community
center because there was no more buildable land. The lack of trust land
forced our Tribe to invest more than $1 million to fill in these ponds
to expand the size of our Boys and Girls Club in 2018.
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 S. 3263 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
This Committee 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 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\
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\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/wpcontent/uploads/documents/CHRG-
111shrg52879.pdf).
---------------------------------------------------------------------------
The late Professor William Rice testified that:
By 1934, Indian land ownership 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\
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\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 land ownership 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\
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\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 Committee and your House 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. 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. 5108.
---------------------------------------------------------------------------
The IRA also sought to place a check on the often-unchecked
authority of the Interior Department over local tribal government
decisionmaking. 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 all 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
underserved and overlooked. \18\
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\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. State and local governments are notified and have an
opportunity to comment and work with the Tribe to negotiate agreements
to address any concerns with pending trust land applications. Nothing
in the IRA authorizes or regulates Indian gaming, which is
comprehensively regulated under the Indian Gaming Regulatory Act, NIGC
regulations, the Interior Department's Part 292 regulations, and the
compact review process. The question of whether Indian trust lands are
eligible to be used for gaming is governed solely by IGRA and the NIGC
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, but they must also separately meet the requirements of the
Interior Department's Part 292 IGRA regulations. 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/washburntestimony09-19-13.pdf).
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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\
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\19\ 25 U.S.C. 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 this Committee's first Carcieri-related hearing, former 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/wpcontent/
uploads/documents/CHRG-111shrg52879.pdf).
\21\ Id. at 2-3.
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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 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 other 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).
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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.
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\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).
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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 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\
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\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\
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\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\
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\27\ P.L. 103-263 (May 31, 1994), codified at 25 U.S.C. 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\
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\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).
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Administrative Attempts to Address the CarcieriDecision
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 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 nondispositive 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.
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Regulatory Improvements to the Land into Trust Process
Recognizing the limited shelf life of Interior M-Opinions, in
October of 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 a number of 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 Parity 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 both 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\
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\35\ 88 Federal Register 86251 (Dec. 12, 2023).
While this approach may seem novel or new, it simply follows the
approach that Congress has taken since the 1970s for a number of 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).
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Legislative Efforts to Address the Carcieri Decision
February 24, 2024, marked the 15-year anniversary of the Carcieri
decision. This Committee 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 of Senator Tester's bipartisan bill, S. 563, which would
accomplish this goal.
In the 118th Congress, however, we are seeking a parallel track
that is 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\ We are grateful to Senator
Britt for introducing the Poarch Band of Creek Indians Parity Act, S.
3263, which would clarify that the IRA's land-into-trust process
applies to our Tribe. S. 3263 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.
---------------------------------------------------------------------------
\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 ( 2868), the Lytton Rancheria Homelands Act ( 2869),
the Little Shell Tribe of Chippewa Indians Restoration Act ( 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).
---------------------------------------------------------------------------
I respectfully ask the Committee to bring S. 3263 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 of your questions. Thank you.
Attachment
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,
Doug Singleton, Chairman, Montgomery County Commission
Bart Mercer, Chairman, Elmore County Commission
Henry Hines, Elmore County Commission
Charles W. Jinright, President, Montgomery City Council
Alan Baker, Alabama House of Representatives District 66
Greg Albritton, Alabama Senate District 22
Jim Staff, Mayor, City of Atmore
Steven Reed, Mayor, City of Montgomery
Jerry Willis, Mayor, City of Wetumpka
Raymond Wiggins, Chairman, Escambia County Commission
Larry White, Escambia County Commission
Steven Dickey, Escambia County Commission
Karean L. Reynolds, Escambia County Commission
Brandon Smith, Escambia County Commission
Mack Daugherty, Elmore County Commission
Dennis Hill,Elmore County Commission
Desirae Lewis Jackson, Elmore County Commission
The Chairman. Thank you very much.
Chair Mejia, please proceed with your testimony.
STATEMENT OF HON. ANDY MEJIA, CHAIRPERSON, LYTTON RANCHERIA OF
CALIFORNIA
Mr. Mejia. Good afternoon, Chairman Schatz, Vice Chair
Murkowski and members of the Committee on Indian Affairs. My
name is Andy Mejia, Chairperson of the Lytton Rancheria of
California, a tribe based in Sonoma County.
Thank you for allowing me to be here today to speak in
support of S. 4000, a technical amendment to reaffirm that the
Indian Reorganization Act applies to the tribe. I would like to
thank Senator Padilla for introducing this bill and for his
work on behalf of Indian Country.
If enacted, S. 4000 would only clarify the intent of
previous legislation and confirm that the Lytton Rancheria is
able to take land into trust for the administrative process as
other tribes nationwide and in Sonoma County are able to do.
The bill itself does not take any lands into trust, but only
makes explicit that the tribe is able to go through the
Department of Interior's approval process.
On behalf of the members of the Lytton Rancheria of
California, I ask that you support S. 4000.
In 1995, Madam Chairwoman Marge Mejia was elected
Chairperson of the Rancheria of California Tribe. She was my
mother. At that point in time, we were a landless and penniless
tribe. Madam Chairwoman had three promises during her tenure,
that was self-sufficiency, land, and housing. The promise of
self-sufficiency was accomplished by establishing San Pablo
Lytton Casino in the City of San Pablo, California, which is
one of the most successful Class II gaming facilities in the
Nation.
Due to the success of the San Pablo Lytton Casino, and
under Madam Chairwoman's leadership, the tribe has been able to
purchase almost 3,000 acres of land in Sonoma County, of that
3,000 acres, 800 acres being high-end vineyard.
Madam Chairwoman fought tirelessly for 12 years to take 511
acres into trust to build a 146-home housing development and
fulfill her last promise to the tribe. In 2019, that 511 acres
was taken into trust through the legislative process, and
construction began in January of 2020.
On October 19th, 2022, Madam Chairwoman, my mom, passed
away unexpectedly at the age of 66. It truly breaks my heart
that my mom is not here to enjoy the fruits of her hard work,
dedication, sacrifice, and the legacy she leaves behind after
her 27-year tenure. No tribe should have to spend 12 years
taking land into trust.
Construction of the Lytton Homeland was completed this
January. It is a very pinnacle moment for our tribe as we
navigate through the process of bringing tribal member families
back to their aboriginal land.
The Lytton Rancheria has become a prime example of all that
the IRA can do for Indian Country. We presently only ask to be
placed on the same footing as other federally recognized
tribes. This bill makes explicit that the IRA applies to the
tribe and does not itself take any land into trust but only
allows the tribe to apply through Interior's land-into-trust
process as neighboring tribes were able to do.
Thank you for your time. I would be happy to answer any
questions.
[The prepared statement of Mr. Mejia follows:]
Prepared Statement of Hon. Andy Mejia, Chairperson, Lytton Rancheria of
California
I am thankful for the opportunity to present testimony to the
Committee on a bill that would have a significant impact on the
citizens of the Lytton Rancheria of California, a federally recognized
Pomo Tribe from the San Francisco Bay area. My name is Andy Mejia, and
I am the Tribe's Chairperson.
The Pomo people historically resided in lands across northern
California. Our ancestors were subsequently devastated by the Gold
Rush, and hostile government policies in the 19th Century. By the early
1900's the surviving Pomo peoples were poverty stricken, landless and
homeless. As a result of the harrowing condition of California's
Indians, Congress enacted legislation to help purchase reservation
lands for many of them. The Lytton Rancheria was one such tribe, which
then received reservation lands in Sonoma County.
Unfortunately, the Tribe was subjected to additional hardships when
the Federal Government wrongfully terminated the rancheria on April 4,
1961. The Tribe subsequently lost all of its rancheria lands and once
again became destitute and landless, with no means of supporting
itself.
In 1991, our Tribe, after decades of fighting to regain our
recognition, received a welcome development when a federal court
concluded the termination was unlawful and ordered the government to
reverse its decision to terminate the Tribe and to restore our Tribal
status. The Stipulated Judgment which did so contained a provision
which reads, ``. . .that the distributees of the Lytton Rancheria are
eligible for all rights and benefits extended to Indians under the
Constitution and laws of the United States; and that the Lytton Indian
Community and its members shall be eligible for all rights and benefits
extended to other federally recognized Indian tribes and their
members,. . .``
While the Tribe's status was restored, its land base, now owned by
non-Indians, was not returned to us and the Tribe remained landless and
impoverished. Subsequently, after due consideration and with strong
local support, Congress in 2000, passed legislation directing the
Secretary of the Interior to take certain land into trust for gaming
purposes for the Tribe in San Pablo, California. The bill declared that
the land was part of the reservation of the Tribe under Sections 5 and
7 of the IRA. The Tribe then established a small, successful Class II
gaming operation. Since its establishment, the Tribe's casino in San
Pablo has been the cornerstone of a fruitful and mutually beneficial
relationship between the City of San Pablo and the Lytton Rancheria. As
a result, our Tribal members have realized significant benefits
including improved housing and educational opportunities for our
children, and medical care for our elders.
With the revenues from the casino, the Tribe also began purchasing
property near and within our original rancheria. We did so in order to
diversify our economic development and to potentially provide a future
homeland for our members, as the 9.5-acre San Pablo trust parcel is
only large enough for the gaming facility and could not meet our
housing needs. The Tribe's current economic development includes
various viniculture projects where the Tribe has invested in previously
deteriorating vineyards, with a focus on environmental responsibility
and stabi lity. Many of the Tribe's vineyards and grapes are now being
used to produce high-quality wines.
Throughout this time period, the Lytton Rancheria has continued to
be good neighbors to our local non-Indian communities. In San Pablo,
the Tribe provides approximately 60 percent of the City's operating
budget and donates to many local charities. This includes a golf
tournament the Tribe sponsors providing nearly $100,000 annually. The
Tribe has also donated millions of dollars to children's charities and
arts programs in Sonoma County as well as to the Sonoma Indian Health
Clinic, which offers healthcare to all Native Americans residing in
Sonoma County, regardless of tribal affiliation.
In the time since our restoration, the Tribe has persisted in
efforts to re-establish a homeland for our members. This culminated in
the passage of the Lytton Homelands Act in 2019. This legislation
directed the federal government to take some of the land purchased by
the Tribe into trust, primarily for tribal housing. In order to pass
this legislation, we worked hard to develop agreements and
understandings with local non-Indian communities. These agreements with
Sonoma County, the Windsor Fire Protection District, and the Windsor
Unified School District reflect our commitment to work with local
governments in a mutually respectful manner and we appreciate the
support that they and the State of California provided to the 2019
legislation.
Since the passage of the legislation, we have completed the
development of the initial phases of our tribal housing project and
moved 146 tribal households onto the Lytton Rancheria. For the first
time since our termination, we are able to live together on our tribal
homeland.
However, it was never intended that the land taken into trust by
the 2019 legislation would be the final trust acquisition for the
Tribe, as the Tribe will need additional trust lands as it continues to
grow. In fact, the 2019 legislation contemplates that the Tribe would
have future lands taken into trust and includes an agreed-to ban on
gaming on such lands in Sonoma County. The Tribe has subsequently
sought to take additional lands into trust via the administrative
process to support the needs of our growing community. These lands,
which we own, are contiguous to and surrounding the current homeland.
Unfortunately, despite the ability of neighboring Tribes with similar
histories, to do so, and the 2000 and 2019 pieces of legislation, which
already explicitly and implicitly extend the IRA to the Tribe, we have
been unable to get an opinion from the Interior Department on our
ability to do so, and thus have been unable to proceed with our
application. With S. 4000, the Tribe only seeks to make explicit our
ability to go through the administrative process. This would not give
us any special treatment and would merely place us on equal standing
with other tribes throughout the country and in Sonoma County.
The Tribe has previously agreed not to conduct gaming within the
county of Sonoma, pursuant to the terms contained in our Memorandum of
Agreement with the county and further, the Tribe is also prohibited
from doing so by the 2019 legislation. That being said, land is
essential for tribes to function as governments. Tribal trust lands are
especially important to this advancement. Tribes need trust lands so
that they can provide governmental services for their members, whether
it be for housing, health care, education, or economic development.
Having such lands in trust provides us with the necessary
infrastructure and planning to provide for future generations and
allows us to protect our historic, cultural and religious ties to our
homeland.
This Committee has been supportive of the Tribe in the past and the
Lytton Rancheria continues to be grateful for that. Additionally, we
are tremendously proud of our homeland and the community we have been
able to re-build on it. All members of the Committee are welcome to
visit and receive a tour.
With S. 4000 we only ask to be placed on the same footing as other
federally recognized tribes. This bill does not itself take any land
into trust, but makes clear that the IRA extends to the Tribe and that
we are therefore able to apply through the Department of the Interior's
land into trust process, just as neighboring tribes are able to do. We
are willing and able to answer any and all questions.
The Chairman. Thank you, Chairman. I am sorry for the loss
of your mother, and may her memory be a blessing.
Chairman Whiteclay, thank you for being here. Please
proceed.
STATEMENT OF HON. FRANK WHITECLAY, CHAIRMAN, CROW NATION OF
MONTANA
Mr. Whiteclay. Thank you. Good afternoon, Chairman Schatz,
Vice Chair Murkowski, honorable members of the Senate Committee
on Indian Affairs. Thank you, Senator Tester.
I am Frank Whiteclay. I am Chairman of the Crow Nation,
home to approximately 7,500 of the total 14,350-plus members of
the Crow Tribe.
The Crow Tribe negotiated a water compact with the State of
Montana that was adopted by the Montana legislature in 1999
that provides water from surface flow, groundwater, and storage
for the Crow Tribe and protects all State and tribal current
water users in the State, and future water users in the
compact.
The compact was ratified by the Crow Water Rights
Settlement Act of 2010, and the Act also provides for the
rehabilitation and improvement of the Crow Irrigation Project,
a project owned and operated by the Bureau of Indian Affairs,
construction of municipal, rural and industrial water systems
for the delivery of clean drinking water, provides tribal water
rights for tribes, the tribe and allottees, identifies storage
of water in the Big Horn Lake of 300,000 acre-feet per year in
addition to the 500,000 acre-feet in the Big Horn and all
groundwater on the Crow reservation. It provides an exclusive
right of the tribe to develop and market power generation on
the Yellowtail Afterbay Dam.
I am here to support the amendments on S. 4442, the
amendments to the Act to revise it from a project-based
settlement to a fund-based settlement that will allow
flexibility on delivery of clean water. The Amendments Act will
extend the upcoming deadline on the exclusive right to develop
the power generation project.
The tribe completed engineering for the water intake
facility on the Big Horn in 2022, and advertised bids for
construction. We received no bidders. This led the tribe to
reconsider the viability of the MR&I system pipeline. We
identified the following concerns.
The pipeline construction was approximately 20 years, at a
cost of $400 billion plus, with an expectation that estimated
construction costs will rise, which they did with the supply
chain rise in materials, likely resulting in a shortfall to
complete construction. Pipeline construction will be daunting
with the size of the reservation, 2.4 million acres across
varying geographical features.
The pipeline construction timeframe would result in a
lengthy delay of water delivery for reservation communities,
and some communities would wait many years for clear drinking
water, and others would not receive it at all. The water
settlement included a finite amount for operation, maintenance
and replacement costs, which other water settlements have in
perpetuity, operation and maintenance costs.
The Water Settlement Act did not include a mandatory hookup
for households along the pipeline, leaving the number of actual
customers unknown. However, if a tribal household was hooked up
to a pipeline, monthly consumer costs to cover operational
costs would be approximately $120 per month in today's dollars,
which would burden an already impoverished reservation
household.
Private landowners were unwilling to grant temporary
permits to cross lands for water sampling and testing for
placement of the water intake unit closer to reservation
communities, which resulted in moving the intake to tribal
lands at the Yellowtail Afterbay location, much farther from
the reservation's larger communities.
The Environmental Protection Agency expressed concerns to
the BOR in a letter dated October 31st, 2022, with the location
of the intake unit resulting in a water age concern for most
customers, and the proposed use of complex chemicals for
treatment that would necessitate operators with advanced
certification requirements. The tribe is proposing to move the
funds into a trust account for Federal management which would
draw upon approval to develop clean water.
On behalf of the Crow tribal membership, I am hopeful that
the Crow Water Settlement Amendment Act will be adopted in this
Congressional session.
Thank you.
[The prepared statement of Mr. Whiteclay follows:]
Prepared Statement of Hon. Frank Whiteclay, Chairman, Crow Nation of
Montana
Good Afternoon, Honorable Members of the Senate Committee on Indian
Affairs. I am Frank Whiteclay, Chairman of the Crow Nation of Montana,
and I am honored to present this testimony in support of the Crow Water
Settlement Amendments Act, Senate Bill 4442. I would like to thank
Senator Tester and Senator Daines for their co-sponsorship of this
important legislation for the Crow Nation.
The Crow Tribe proposed these amendments to the Crow Water Rights
Settlement Act of 2010 to amend the Act from a project specific Act to
a fund based settlement Act that is consistent with more recent Indian
water rights settlements and provides flexibility for clean water
delivery systems.
Background
The Crow Reservation, formally established pursuant to the Fort
Laramie Treaty of 1868, is located in southeast Montana, and currently
encompasses 2.3 million acres with three mountain ranges, significant
range lands, dry farm and irrigated lands with numerous water sources
originating on and off the reservation. Approximately 7500 Crow Tribal
members reside on the Reservation and approximately 1500 non-Indian
residents possess state-adjudicated water rights throughout the
reservation with the majority along the Big Horn River.
The Bureau of Indian Affairs constructed the Crow Irrigation System
in the early 1900's to enhance agricultural efforts on the Crow
Reservation through irrigation of farmlands along the Big Horn River,
Little Bighorn River, Pryor Creek and Lodge Grass Creek. A significant
portion of lands along the irrigation systems are in non-Indian fee
ownership.
The Crow Tribe negotiated a Water Compact with the State of Montana
Reserved Water Rights Compact Commission that was ratified by the
Montana Legislature in a special session in June 1999. The Compact:
provides water from surface flow, groundwater and storage
for the Crow Tribe for existing and future Tribal water needs.
Provides protection for all state and Tribal current water
uses in the affected water basins from the Tribe's future
exercise of its water rights; also protects the local
conservation districts' right to future water use.
Creates an administrative process for resolution of any
future disputes between Tribal and non-Tribal water users.
Crow Tribe Water Rights Settlement Act of 2010
The Crow Tribe Water Rights Settlement Act of 2010 ratifies,
authorizes, and confirms the water rights 1999 Compact between the Crow
Tribe and the state of Montana and provides for: (1) the Tribe to
rehabilitate and improve the Crow Irrigation Project; and (2) the Tribe
and Reclamation to construct the municipal, rural, and industrial water
system; (3) provides tribal water rights for the tribe and allottees;
(4) provides for leasing and selling of water with federal approval;
(5) identifies 300,000 acre-feet per year of water stored in Bighorn
Lake, Yellowtail Unit, Lower Bighorn Division, Pick Sloan Missouri
Basin Program, for the Tribe in addition to the allocation of 500,000
acre-feet per year in the Big Horn and all groundwater on the Crow
Reservation; and (6) provides the exclusive right of the Tribe to
develop and market power generation on the Yellowtail Afterbay Dam.
The Crow Tribe proposed Amendments to the Crow Tribe Water Rights
Settlement Act of 2010 to create a fund for water delivery purposes and
related uses, to revise the management of the funds allocated for the
Crow Irrigation Improvement Projects, and to extend the deadline for
right to develop and market power generation at the Yellowtail Afterbay
Dam.
Municipal, Rural, and Industrial Water System
The Crow Tribe Water Rights Settlement Act of 2010 (Act) ratified
and confirmed the 1999 Crow Tribe/State of Montana Water Rights Compact
and directed the Secretary, through the Bureau of Reclamation, to
design and construct a Municipal, Rural, and Industrial (MRI) water
system through an agreement with the Tribe. Section 403 of the Act
specifically described the MRI system as ``raw water intake, water
treatment plant, pipelines, storage tanks, pumping stations, pressure
reducing valves, electrical transmission facility and other items.''
The Tribe has spent the last 10 years designing the pipeline project as
specifically described in the Act.
In 2022, 10 years after the enforcement date of the Water
Settlement, engineering work for the MRI system water intake unit at
the Yellowtail afterbay was completed and the project was advertised
for bids. However, no bids were received due to the complexity of the
project and the requirement for specialized divers for underwater
construction. Following this setback, the Tribe reviewed the overall
MRI project plan and identified the following concerns with the MRI
project as specifically described in the Water Settlement Act of 2010.
The pipeline construction timeframe was approximately 20
years at a cost of $400 million plus with an expectation that
estimated construction costs will rise, likely resulting in a
shortfall to complete construction. Pipeline construction would
be daunting with the size of the reservation and the varying
geographic features.
The pipeline construction timeframe would result in a
lengthy delay of water delivery for reservation communities and
some communities would wait many years for clear drinking
water.
The water settlement included a finite amount of $47 million
for Operation, Maintenance and Replacement costs which was
projected to cover approximately eight years of costs, without
unforeseen breaks or interruptions, following project
completion.
The Water Settlement Act did not include mandatory hook-up
for households along the pipeline leaving the number of actual
customers unknown. However, if every Tribal household was
hooked up to the pipeline, monthly consumer costs to cover
operational costs would be approximately $120 per month in
today's dollars which will be a burden to impoverished
reservation households.
Private landowners were unwilling to grant temporary permits
to cross lands for water sampling and testing for placement of
the water intake unit closer to reservation communities which
resulted in moving the intake to Tribal lands at the Yellowtail
afterbay, a location much further from the reservation's larger
communities.
The Environmental Protection Agency expressed concerns to
the Bureau of Reclamation, in a letter dated October 31, 2022,
with the location of the intake unit resulting in a water age
concern for most customers and the proposed use of complex
chemicals for treatment that would necessitate operators with
advanced certification requirements.
Despite years of attempting to secure rights of way for the
pipeline from the Yellowtail afterbay intake to the first
reservation community, across approximately 50 fee and trust
tracts, and expending $4 million, no rights of way were
perfected.
Upon re-assessment of the feasibility of the pipeline MRI system,
the Tribe reviewed an alternative water delivery system that would
utilize regional water plants in each reservation community that would
be more cost-effective and deliver clean water within 2 to 4 years.
Additionally, the Tribe proposed improvement of existing water wells
for rural households as the majority of wells are shallow with
compromised water quality.
The Bureau of Indian Affairs provided funds for a water study to
support the proposed regional water plants and rural well concept. The
water study indicated a vast supply of available water in two major
aquifers below the Crow Reservation, the Judith River and Parkman
formations which are currently largely untapped. Thus, use of water in
the existing aquifers would not interfere with or compromise existing
water rights in the Big Horn river or Little Big Horn river.
The water study further revealed that over 50 percent of Crow
Reservations households have contaminated water due to inefficient
water treatment and shallow wells. This fact created greater incentive
to pursue a water delivery system that could be operational in a short
number of years to best serve the population.
The amendments would move the MRI funds from a private bank into a
trust fund for clean water deliver and related projects that would be
managed pursuant to the 1994 Trust Reform Act that requires submission
of an annual expenditure plan and a budget to DOI for review and
approval before release for funds to the Tribe. The Tribe agrees with
this management process.
Crow Irrigation Improvement
The Crow Water Settlement Act of 2010 directs the Secretary,
through the Bureau of Reclamation, to improve the Crow Irrigation
Project (CIP) in accordance with an agreement with the Crow Tribe.
Implementation of projects was preceded by in-depth studies to
modernize the dilapidated 100-year-old system and allocate funds for
the various components of the system. The proposed amendments do not
revise the current project implementation plans and co-management of
the irrigation improvement projects by the Tribe and the Bureau of
Reclamation. However, the Amendment Act would move the CIP funds from a
private bank to federal treasury in a non-trust interest bearing
account that would maintain the joint Tribe and BOR management. This
move reduces the costs of managing funds but still complies with the
original Settlement Act mandate for indexing of funds.
Energy Development Project
The Crow Water Settlement Act of 2010 provided an exclusive right
for the Crow Tribe to develop hydro power in the Yellowtail Afterbay
that would expire in 2025 and provided a lump sum to cover a portion of
the costs. The Crow Tribe delayed pursuit of the project due to the
initial engineering design plan prospectively interfering with
Yellowtail Dam operations and, later, the on-set of the COVID pandemic.
The Tribe has now engaged a hydro plant developer, revised the site and
engineering concerns, and intends to start construction prior to the
December 2025 deadline. The Tribe has proposed a five-year extension of
the deadline to complete the project to accommodate any unexpected or
unforeseen complications that may arise.
Conclusion
On behalf of the Crow Tribal membership, I am hopeful that the Crow
Water Settlement Amendments Act will be adopted this Congressional
session. At present, without the Amendments, the Tribe is unable to
proceed with clean water delivery projects as the specifically mandated
pipeline construction is not feasible. Clean water has become critical
for the Crow Reservation as many studies indicate that the high cancer
rates of the Crow people is likely attributable to contaminated water.
The Amendments the Tribe seeks are at no new costs to the United
States and do not impact the other provisions of the Crow Tribe/State
of Montana Water Compact that protects all existing water users on Crow
Reservation. Further, the Amendments do not revise the on-going Crow
Irrigation Project improvements or the specific allocation of funds for
those projects. Finally, the return of funds to federal oversight will
avoid costs for the Crow Tribe and ensure protection of water
settlement funds for future generations of the Crow Tribe.
Thank you for your consideration of this important legislation.
The Chairman. Thank you very much.
President Carlson, please proceed with your testimony.
STATEMENT OF ERVIN CARLSON, SR., PRESIDENT, INTERTRIBAL BUFFALO
COUNCIL
Mr. Carlson. Thank you. Good afternoon, Chairman Schatz,
Vice Chair Murkowski and honorable Committee members. My name
is Ervin Carlson, and I am a member of the Blackfeet Nation and
President of the InterTribal Buffalo Council.
I have submitted a detailed statement that I will now
summarize. All Natives in this Country depended on the Plains
buffalo for survival prior to the arrival of the non-Indian to
this continent. Buffalo were essential to the Native lifestyle
and provided food, shelter, clothing, essential tools for our
way of life. They symbolized survival and became central to our
spirituality and religious practices.
Our people referred to the buffalo as ``my relative,'' to
signify how spiritually we were connected to them. Our oral
history includes details of the vast number of buffalo, between
30 million and 60 million, inhabiting North America. Due to
wanton and unbridled over-hunting by non-Indian buffalo
hunters, millions and millions of our buffalo were slaughtered.
The destruction was so complete that by the late 1800s only a
few hundred buffalo remained.
Many great leaders mourned the loss of the buffalo and the
Native way of life. With the destruction of the buffalo in the
Indian Wars, the population of the Indian people, once
numbering in the millions, dropped to approximately 250,000 by
the early 1900s. Without the buffalo, surviving Indians were
forced to live on reservations, losing their independence.
Historical records show that the U.S. military participated
in near-extinction of the buffalo as it provided a way to deal
with their Indian problem. Tribal leaders longed to restore
buffalo, but had minimal land bases and resources. However,
early conservationists, including Teddy Roosevelt, had the
means to prevent the near extinction of buffalo.
For the Indian people, recovery from this devastation to
restoration of buffalo herds on our lands began in earnest in
1991, when a handful of Indian tribes organized the InterTribal
Bison Cooperative, now known as the InterTribal Buffalo
Council.
We were granted a Federal charter in 2009, pursuant to the
Indian Reorganization Act. Our organization has grown
significantly, and today I am proud to tell you that we have 83
tribes in 22 States, all dedicated to restoring herds on our
lands. The Indian population of our member tribes exceeds 1
million people.
We really appreciate that Senators Heinrich, Mullin,
Sullivan and Tester have introduced S. 2908, the Indian Buffalo
Management Act. This is the successor to legislation initially
introduced by the late Don Young, I guess I should say, in my
way, the great Don Young, which he got through the House before
he left us. Congressman LaMalfa, Congressman Peltola, and
others have reintroduced it in this Congress.
In March, it was unanimously reported out of the House
Committee on Natural Resources. It is pretty basic legislation
that will create a program at the Interior Department to assist
tribes and organizations like ours in restoring buffalo herds
to tribal lands. It requires strict compliance with State and
Federal laws governing the translocation of buffalo. We had
extensive discussions with the cattle industry and agreed to a
series of changes they requested to ensure buffalo did not
detract from off-reservation cattle operations.
By enacting this legislation, Congress will commit to
assisting tribes to restore buffalo herds. We believe that this
legislation will help Interior to justify decent budgets for
the buffalo program as opposed to the minimal and stagnant
funds that we have seen for decades, despite the huge growth in
our membership.
When you try and divide up $1.4 million among many tribes,
it doesn't go very far. Tribes need fencing, watering systems,
genetic diversity in their herds, supplemental feed, and
testing that all requires meaningful funds. Some tribes tell us
they wish to reestablish herds for cultural purposes, and that
a small herd would be sufficient as a means of teaching
children the history of our people and this great animal, and
having all the parts of this animal for our spiritual
ceremonies. Others wish to create jobs, use the meat in the
school lunch program, and for community events. Still others
hope to grow their herds large enough to get into small scale
commercial production.
Our members in Alaska have referenced the need for protein
and basic food security, especially when successful subsistence
hunts cannot be ensured. Whatever the reason, this legislation
is very important to advance food sovereignty for Native
populations. We sincerely hope that you will help to see it
enacted into law this year.
Thank you.
[The prepared statement of Mr. Carlson follows:]
Prepared Statement of Ervin Carlson, Sr., President, Intertribal
Buffalo Council
Introduction and Background
My name is Ervin Carlson and I am a member of the Blackfeet Nation
in Montana and serve as the President of the InterTribal Buffalo
Council (ITBC). Please accept my sincere appreciation for this
opportunity to present this testimony to the honorable members of the
Senate Committee on Indian Affairs.
I am here today to present testimony on S. 2908, the Indian Buffalo
Management Act (IBMA), and encourage passage of this legislation to
create a permanent Tribal buffalo restoration and management program
within the Department of Interior. I want to express our deep
appreciation to Senators Heinrich, Mullin, Sullivan and Tester who have
sponsored this legislation. I would be remiss if I also did not thank
the late Congressman Don Young of Alaska who first introduced this
legislation and was able to get it through the House before he left us.
We were also pleased that then Congresswoman Deb Haaland joined Don
Young as the lead co-sponsor in the House.
Historical records indicate that in the 1840s the buffalo
population in North America was estimated at 30 million and, at its
peak, approximately 60 million. At the time of Christopher Columbus'
arrival in the New World, approximately 7 million American Indians
populated North America. For thousands of years, Indians were sustained
by buffalo and, a sacred, spiritual relationship developed between
them. Indians depended on buffalo for food, shelter, essential tools
and clothing, and the buffalo became an integral component of Indian
religion. To this day, the Pueblos in New Mexico still practice sacred
buffalo dances on an annual basis.
Simultaneous to the establishment and relocation of Indians onto
reservations, buffalo were slaughtered by the tens of thousands. Non-
Indian buffalo hunters skinned the animals and, more often than not,
sent their pelts back east for use in factories. The U.S. military also
believed that if the buffalo could be eliminated, the ``Indian
problem'' in America could be solved. A US military leader who was
deeply involved in the so called Indian Wars of the Great Plains
brutally stated, ``If I could learn that every buffalo in the northern
herd were killed, I would be glad.The destruction of the herd would do
more to keep Indians quiet than anything else that could happen.'' This
strategy was successful and, in the last three to four decades of the
1800's tens of millions of buffalo were slaughtered resulting in less
than 500 buffalo remaining at the turn of the century. Concurrently,
the population of American Indians was also significantly reduced to
approximately 250,000 at the turn of the century. With the demise of
the buffalo and the confinement of Indian Tribes to reservation lands,
Indians lost their primary food source, lifestyle and independence.
Sitting Bull, the great and eloquent Sioux Chief said, ``A cold wind
blew on the prairie on the day the last buffalo fell. A death wind for
my people.''
Indians mourned the loss of buffalo and never ceased to dream of
buffalo restoration for the health of Tribal members and the
restoration of the land but without resources and the challenges of the
new reservation lifestyle, they were unable to undertake those efforts.
In contrast, President Teddy Roosevelt, William Hornaday and the
American Bison Society, among others played a significant role in
buffalo conservation efforts in the early 1900s followed by wider scale
conservation efforts in the mid-1900's. By 1990, approximately 25,000
buffalo were held in public herds and approximately 250,000 buffalo
were in private herds. Numerous Indian Tribes had also established
small herds on Tribal lands. In 1991, approximately 10 Indian Tribes,
committed to buffalo restoration with approximately 1,500 buffalo among
them, organized the InterTribal Bison Cooperative and approached
Congress for federal funding. In 1992, ITBC began receiving federal
funding through Congressional earmarks on a bi-partisan basis with
Senator Burns of Montana and Senator Daschle of South Dakota as early
supporters. ITBC has been included in the President's budget and at
other times supported administratively but only as a small component in
the Natural Resource or Rights Protection line item that funds a
variety of other tribal initiatives. Funding occurred at the discretion
of senior officials at the Bureau of Indian Affairs.
Despite very small appropriations, with no assurance of recurrence,
ITBC has nonetheless assisted many Tribes to restore buffalo, enhance
existing herds and provide necessary technical assistance across the
twenty-two states where member Tribes are located. ITBC has grown from
its origins in the Great Plains to now include Tribes from Maine to
Florida, through the mid-west, Southern Plains, Southwest states, and
California to Alaska. In Vice Chair Murkowski's home state of Alaska,
we are very proud of the work we have done with the Alutiq Tribe at Old
Harbor and our member tribe at Stevens Village in helping both
establish herds. Some of the most compelling arguments for this program
we have heard have actually come from our members in Alaska who point
out that when Native Villages are reliant on subsistence hunting and
successful hunts cannot be assured, that it is critical that those
Villages have access to an alternative source of protein. This is a
food security argument in its most basic form. Our most recent
deliveries of buffalo were to the Peoria Tribe in Oklahoma and the Taos
Pueblo in New Mexico. Every single tribe in Montana, North and South
Dakota are members of the ITBC, and we have assisted each of them with
live buffalo, or funding for fencing, supplemental feed, water systems
or technical support. Of course we have undertaken similar efforts in
many other states.
In an effort to formalize as a national Indian organization, ITBC
petitioned for and was granted a federal charter in 2009 pursuant to
Section 17 of the Indian Reorganization Act. Today, ITBC is now
comprised of 83 federally recognized Indian Tribes in 22 states with
over 60 buffalo herds. In recent years, ITBC membership has grown by
about 5 Tribes per year expanding the total number of Tribal members
served to over one million.
Tribal buffalo restoration to Tribal homelands signifies much more
than simply conservation of the National Mammal. Tribes enter buffalo
restoration efforts to counteract the near extinction of buffalo that
was analogous to the tragic history of American Indians in this
country. Today's successful reintroduction of buffalo to Tribal lands,
largely through the efforts of ITBC, signifies the resurgence of the
revered Tribal buffalo culture and exemplifies the resilience of the
American Indians and their culture.
Authorization Versus Funding
We have been asked why an authorization would best serve ITBC
rather than -only relying on continued annual appropriations. First,
when Congress endorses a program that authorization both sends a
message and likely enhances recurring appropriations specifically for
the program. Some conservatives even argue that programs must have an
authorization in place before appropriations should be allowed.
Congress has authorized numerous statutes over the years to address and
guide particular Indian Affairs issues. Just a few examples would
include the Tribal Law and Order Act, the Indian Child Welfare Act, the
Native American Graves and Repatriation Act, the Indian Dam Safety Act,
the Indian Employment and Training Act, the National Indian Forest
Resources Management Act, the Treaty Fishing Site Access Act, ANILCA,
legislation dealing with Hoopa fisheries and Metlakatla fisheries, etc.
etc. The list is literally pages long. While the Administration could
have used the broad Snyder Act to create programs to address these
various Indian affairs issues and did not, Congress properly adopted
statutory authorizations. Since the federal government played a key
role in the near extinction of the buffalo, Congressional action to re-
establish herds and fund management activities is reasonable and
appropriate.
As indicated above, ITBC has received appropriated funding since
1992 in varying amounts, but actual annual allocations have remained
stagnant for many years However, the annual Congressional appropriation
to ITBC does illustrate Congressional support for buffalo restoration
and management from a limited or one-time project to a recurring
program despite no equivalent BIA program. Presently, ITBC enters into
annual Indian Self Determination and Education Assistance Act contracts
with the Bureau of Indian Affairs for restoration and management
activities. However, this contractual relationship remains tenuous
without an actual permanent buffalo program within the BIA and various
BIA officials have recommended that a Congressional authorization for
this the buffalo program would justify appropriations. Assistant
Secretary Tara Swaney was one of key DOI leaders who discussed with us
the benefits of a permanent authorization.
Federal Commitment to Traditional Food Sources
Article XI of the 1868 Treaty of Fort Laramie guarantees Tribes
access to buffalo ``so long as buffalo may range.'' The Tribes
considered this language as a perpetual guarantee. Unfortunately, like
many other treaty provisions, the Federal Government failed to live up
to this promise. Congressional adoption of the IBMA now provides an
opportunity for the Federal government to honor a commitment to
American Indians to access buffalo, similar to the commitment to Tribal
fish commissions. Recently, the United States Supreme Court examined
the 1868 Fort Laramie Treaty and upheld Tribal off-reservation hunting
rights in the Herrera decision. This right to hunt supports a right of
access to traditional food sources.
The Federal government has had a long-standing and justifiable
commitment to Tribal fish commissions and treaty fishing rights
following the well-known Boldt decision. That federal district court
case gave the fishing Tribes co-management authority over salmon with
the States and declared the security of Indian fishing rights was a
trust obligation of the United States. This case stands for the
proposition that all American Indians have a right to their traditional
foods, and therefore, this ruling supports a Federal government trust
responsibility to return buffalo to Tribes, in the same manner the
Federal government has protected the security of Tribes to access fish.
Currently, seven fish commissions cover 52 tribes, in 12 states,
that represent a population of approximately 525,000 enrolled tribal
members. ITBC represents significantly more Tribes, with a larger
member base, over a much larger geographic area. Ten Tribes have
memberships in both ITBC and a fish commission.
ITBC and fish commissions both seek to provide access to a
traditional food source to member Tribes. However, fish commissions
receive approximately 100 times ($140,000,000) the funding from the
Federal government. The Tribal Management/Development Program (that
also funds ITBC), the Rights Protection Implementation Program, and the
Fish, Wildlife, and Parks and Natural Resources Tribal Priority
Allocation Programs within the BIA all fund the fish commissions.
Additionally, the fish commissions receive funding from USFWS, the
Department of Commerce, and the Environmental Protection Agency. This
allows a single fish commission to employ 10 times the staff and
operate two additional offices compared to ITBC. We do not remotely
disparage the funds that the fishing tribes receive. It is entirely
consistent with the trust responsibility owed those tribes. However,
ITBC seeks some parity as it has the challenge to restore buffalo in
contract with the right to co-manage an existing resource.
Indian Buffalo Management Act
Adoption of the Indian Buffalo Management Act will create a
permanent program within the Bureau of Indian Affairs and specifically
authorize an annual appropriation. While funding will depend on annual
appropriations, the IBMA should create some degree of parity with other
Tribal wildlife programs. Additionally, the IBMA will solidify the
contractual relationship between the BIA and ITBC, or individual Tribes
should they choose to seek an ISDEAA contract. Hopefully this will
eliminate our present situation where funding is so uncertain. With
meaningful, funding, we will be able to help our members who are still
working toward the reestablishment of buffalo herds on their lands and
move toward the goal of establishing self-sustaining herds and a role
in the tribal buffalo industry that will create jobs, feed tribal
populations and provide economic opportunities to Tribes.
The IBMA, with an increase in current funding, will allow ITBC to
provide more meaningful Tribal Herd Development Grants to create the
necessary infrastructure to provide buffalo to a larger segment of the
Indian community. This in turn will lead to greater self-determination
and food-sovereignty opportunities for Tribes through production of
their own traditional foods and creation of economic opportunities. An
expansion of the Herd Development Grants will increase on-reservation
buffalo related jobs, infrastructure development, range management,
fence construction and repair, construction of corrals, handling
equipment, and will help pay for supplemental feed. Increased Herd
Development Grants will further allow Tribes to market buffalo for
economic development through branding, advertising and developing
enough product to meet consumer demands. Tribes, unlike off-reservation
agriculture producers, have limited access to traditional financing due
to limitations of utilizing Tribal trust land for collateral. Thus,
without enhanced Herd Development Grants, Tribes remain at a
disadvantage in herd expansion and marketing.
The Indian Buffalo Management Act will enhance ITBC's ability to
serve as a meaningful partner to Federal agencies involved in buffalo
management. ITBC collaborates with the National Park Service, the U.S.
Forest Service, and the USDA Animal and Plant Health Inspection Service
on buffalo management issues. However, this involvement is limited by a
scarcity in resources. The IBMA will enhance population management
through roundups and distribution of surplus buffalo to Tribes from the
Badlands, Theodore Roosevelt, Grand Canyon, Yellowstone and Wind Cave
National Parks. Translocation of surplus buffalo from those parks to
Tribes prevents or at least reduces needless slaughter when the parks
reach their carrying capacity and fulfills restoration objectives.
However, ITBC and Tribal participation is often limited due to a lack
of resources for transport.
The IBMA will enhance the objective to reintroduce buffalo into the
diets of Indian populations to prevent and treat diet related diseases.
An increase in funding will allow Tribes to have sufficient product for
cultural purposes, product to sell at reasonable costs for Tribal
members and product to market on a larger scale. Further, enhanced
funding will allow ITBC to develop concrete evidence of health benefits
that will facilitate ITBC partnerships with health programs to prevent
and treat diet related diseases in Native populations.
The IBMA will reinforce on-going technical services from ITBC to
Tribes, which are currently provided by a very limited staff of three
people, for wildlife management, ecological management, range
management, buffalo health, cultural practices, and economic
development. Adoption of the IBMA will allow ITBC to enhance current
training sessions (national and regional) designed to enhance Tribal
buffalo handling and management.
Additionally, the IBMA will support ITBC staff educational
presentations to school-age youth, tribal buffalo managers, and others.
The topics of these presentations range from buffalo restoration,
conservation efforts, and the historical, cultural relationship between
buffalo and American Indians. Current funding limits outreach,
educational efforts, and staff training.
Indian buffalo herds are grass-fed and, hormone and antibiotic
free. This creates a lean final product that would fulfill a niche in
meat production markets. ITBC strives to develop these markets for
buffalo meat and products for interested member-Tribes at the local and
national level. The IBMA would facilitate creation a centralized herd-
made from the member-Tribes' buffalo-in a centralized location to
create a steady source of buffalo for markets. This herd could also be
used to exchange buffalo among the member-Tribes to enhance each herd's
genetic diversity.
Conclusion
S. 2908, the Indian Buffalo Management Act, will further efforts to
restore buffalo to Tribes on a broader scale and to establish a Tribal
buffalo industry for job creation and new revenue for Tribal economies.
ITBC ultimately hopes to restore Tribal herds large enough to support
local Tribal health needs and achieve economically self-sufficient
herds.
ITBC and its member Tribes are appreciative of past and current
support from Congress and the Administration. However, we urge the
Committee to adopt the IBMA to permanently create a buffalo restoration
program and demonstrate Congressional commitment to Tribes to access
this critical, traditional food source.
I would like to again thank this Committee for the opportunity to
present testimony and I invite you to visit ITBC Tribal buffalo
projects and experience firsthand their successes.
The Chairman. Thank you very much, President Carlson.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman. I appreciate the
flexibility.
This goes to you, Chairman Whiteclay. You talked about, in
your statement you talked about why the settlement doesn't work
after the fact, no bidders, construction time too long, delay
in water delivery, the list is long. I know this is what the
bill says, but I want you to flesh this out a little more.
You said this would set up a trust account to develop clean
water. Tell me what you are going to do to replace that
pipeline to deliver clean water to the people in Crow Country,
because, if we get this bill passed, what will it allow you to
do? Because you are not going to build a big old pipeline, you
are not going to build an intake that is too far away. Tell me
what you are going to do.
Mr. Whiteclay. Thank you, Senator Tester. Yes, the Crow
Tribe is planning on putting regional water plants throughout ,
to each individual community. The regional water plants will
not be from surface water, it will be to the aquifer, which we
requested an aquifer study to be done. We are thankful to the
BIA for paying for that study. We have more than adequate
drinking water, it is safe, it is clean throughout. So each,
like we said, our reservation is very large. So what is in all
those communities that we will put regional water plants to all
communities and we will have well systems for the rural folks.
We have a lot of folks that live in the country. I myself haul
water to my own residence through a cistern.
So giving us the ability to have wells to all the community
members, which is roughly about 1,680 households.
Senator Tester. In the end, do you think you can deliver
this at or less of a cost the pipeline would have run you,
assuming you would have gotten bidders for the pipeline?
Mr. Whiteclay. Yes, we are very confident that we would be
able to build the whole system out and include the wastewater
systems and all of the above under the amount.
Senator Tester. I want to talk about the hydro project that
you have, and this bill also addresses it. I believe it moves
up the deadline to 2030. What is the deadline right now?
Mr. Whiteclay. Yes, the previous settlement, the settlement
has a sunset date through 2025. And it doesn't give a clear
statement of substantial completion. So this moves that
forward.
Senator Tester. So that substantial completion statement is
further fleshed out and clarified?
Mr. Whiteclay. Yes.
Senator Tester. Okay. Then, have you started on the hydro
project yet?
Mr. Whiteclay. Yes, we have designs already, we have
contractors, we are moving very quickly on the hydro project
because of that sunset date, keeping in mind I have only
recently been in our term for the last three years. So we are
making leaps and bounds.
Senator Tester. As you project forward, do you think the
2030 date will be adequate? You will have it done by then,
substantial completion?
Mr. Whiteclay. Yes, we believe so.
Senator Tester. Okay. Thank you for being here, Chairman.
Erv, you have been doing this basically your whole life.
You have been doing it with no resources whatsoever. You talked
about fencing and water and feed and testing. Would this be
done by grants to the people who apply for it, or how do you
visualize this happening?
Mr. Carlson. What we do is the minimal dollars, the funding
that we do get, we have a herd development grant process that
goes out to the tribes. They put in each year for all of their
needs, which far exceeds the dollars, the amount that we do
get.
So they put in that and put it in their grants of what they
would need for that year, whether it be fencing, waterways, and
sometimes supplemental feed for the tough winters that we have,
or the ones with minimal land base.
Senator Tester. And the testing you are talking about, I
hate to bring up this word but I am going to say it, is that
brucellosis testing, or what kind of testing?
Mr. Carlson. Well, not necessarily brucellosis. I think the
only place we do have that is in Yellowstone. But we do test
the other animals that do come out of there, Wortham and Fort
Peck. But on certain times, the tribes, within the animals that
they do have, they like to go ahead and test just to make sure
that their animals are all still disease-free.
Senator Tester. Okay, thank you.
Just one last thing. I have 36 seconds left. I do
appreciate the fact that both Poarch and Lytton got the
delegation on board. It is so really, really important that you
guys have the home Senators on board for this stuff.
This has been a problem for you guys for a long, long time.
Now I think it is going to get fixed. So I appreciate your hard
work. And for you, Secretary Newland, it is always good to have
you in front of the Committee.
The Chairman. Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman, thank you to
those who have testified today. President Carlson, you
mentioned our good friend, the great Congressman Don Young.
As it turns out, the 9th of June, just on Sunday, was
Congressman Young's birthday, and it is also the day that has
been designed in Alaska as Don Young Day. So I think it is only
appropriate that we are hearing this bill just so close in time
to the Congressman's special acknowledgement. Thank you for
recognizing him in that way.
This is a question for you, Assistant Secretary Newland.
This relates to the Indian Buffalo Management Act. As I
mentioned, this is a program that we are looking to grow in
Alaska to provide for subsistence needs for several Alaska
Native communities. I mentioned transportation costs. You have
spent enough time up there to know that this is real.
Is it the department's interpretation of S. 2908 that the
bill will cover the cost of transporting the bulls, the cows
and the calves to the villages that are working to establish
these bison herds?
Mr. Newland. Thank you, Vice Chairman. Yes, we believe that
would be an allowable cost.
Senator Murkowski. Good. And is it also your understanding
that the bill would cover the cost of transporting the bison
within Alaska from village to village to promote sustainable
grazing practices and herd health?
Mr. Newland. Again, I believe the answer is yes. Yes.
Senator Murkowski. Good. Thank you for that. That is
important. As I mentioned, these are expenses that are very
real.
Another challenge, though, is the need for mobile
processing trailers when you have communities that are not
connected by road, you have to move them in other ways.
Sometimes you can only do it by air, or by barge. Is it the
department's interpretation of the bill that it would cover the
cost of transporting mobile meat processing facilities by air
or barge to places like Old Harbor or Stevens Village or other
rural and remote areas?
Mr. Newland. Thank you, Vice Chair. Yes, I would say that
within this program, as I understand the bill, there is a lot
of flexibility for tribes and organizations, our partners at
ITBC, to do all manner of activity to both manage herds and
ecosystems as well as on the back end with processing.
Senator Murkowski. Great. Your testimony states that the
bill would allow the tribes and tribal organizations to enter
into 638 self-governance contracts to assume BIA bison herd
management functions. Does this mean that buffalo restoration
and economic development activities would be managed like 638
compacts that we see with tribal education or law enforcement?
How do you envision that?
Mr. Newland. For tribes that want to use that route, yes.
It would work like any other 638 program.
Senator Murkowski. Okay. So do you know if there are any
BIA livestock or wildlife programs that are somewhat analogous
to the buffalo program that the BIA contracts with the tribes
on now?
Mr. Newland. I would have to get back to you on that, Vice
Chair. This is also a program that we have been running on an
year-by-year basis with much less funding. So we have good
practice at it, and a $14 million authorization would allow us
to really grow it really support tribes that want to
participate in it.
Senator Murkowski. Good. Pivoting just a little bit in my
last question to you, it is in regard to tribal applications
for land into trust. You had mentioned in your written
testimony that the department must review each individual
tribal application when requesting to place land into trust on
a tribe's behalf. On average, how long does this review take
BIA to review an application? What are you looking at?
Mr. Newland. On the whole, we know that it takes us now
around three years, before the new regulations went into
effect, it takes the BIA around three years to process a single
application, on average.
Senator Murkowski. So, three years. I am looking then to
Chair Bryan, and to Chairperson Mejia. What does this mean when
you have a three-year review plan, and you are trying to put
into place some plans for your people? Tell me the implications
of a three-year review process.
Ms. Bryan. We do appreciate the process and the
administration and the revisions to 151. These are lands that
have been in trust for over a decade with the Department of
Interior. But that doesn't actually clarify these lands that we
have had into trust.
So we have not submitted any applications to place any land
into trust, just because we have spent millions of dollars on
frivolous lawsuits, and we have won all those lawsuits, the
people questioning the jurisdiction of our land.
Senator Murkowski. Thank you. Thank you, Mr. Chair.
The Chairman. Thank you very much.
Assistant Secretary Newland, the Crow Settlement Act of
2010 requires that the settlement be fully appropriated by June
30th of 2030. This bill does not extend that deadline. Does DOI
expect to fully fund the Crow settlement by or before that
date?
Mr. Newland. Yes, Chairman, if I could just add very
briefly, that settlement was $460 million. We are almost at 90
percent of the funding appropriated. So we have an additional
$48 million in discretionary funds to go.
The Chairman. Okay, thank you.
On S. 4000, the Lytton Rancheria Homelands Act prohibits
the tribe from conducting gaming activities on the lands taken
into trust under the legislation as well as on any future trust
lands in Sonoma County. Would the gaming restrictions in
current law apply to future lands taken into trust pursuant to
S. 4000?
Mr. Newland. Yes.
The Chairman. That is all I need.
President Carlson, can you share more about how the
InterTribal Buffalo Council's growing membership impacts the
services it is able to provide? I think you talked a little bit
about this. But I guess there are two ways to look at it. One
is, how thin do you have to spread this $1.3 million? And the
other question is, what are you going to do with $14 million if
we can pull it off?
Mr. Carlson. We have grown to 83 tribes now, and $1.2
million, $1.4 million predominantly, that has been our funding.
So to get that out to the tribes, of course, I talked about the
grants that we go through, the process. It is a process every
year that really, we try to make it equal to all of our tribes,
all in need. Consequently, it is never enough to really
significantly help their programs.
Some of the years we have, not all of the tribes will put
in. They will hold out; kind of alternate so other tribes can
get a little more money to get their programs going. So it is
very minimal, but the tribes are very resilient. We have
survived on that very little dollars, just as our buffalo are
resilient and survive on that.
So with $14 million, there are a lot of tribes, all of the
tribes would be able to participate each year and significantly
help their programs. One of the things that we had a meeting
with our herd managers, and they wanted dollars, funding just
to stay sustainable with what they are doing, and not even able
to grow their herds or to grow their land base for them, or for
all the materials that they might need. So the $14 million
would significantly increase the help for them.
I must say also that we do ask the tribes to tell us their
full needs for the year. Each year, it far exceeds $14 million
for what they really need. So we are still below on that.
The Chairman. Thank you very much.
Chair Bryan, if enacted, how will S. 3263 improve the
Band's ability to provide essential government services to your
membership?
Ms. Bryan. First, by saving dollars from frivolous lawsuits
that we could use to provide housing, education, rural health
care to communities, better infrastructure for our roads. We
currently serve over 500 children at our Boys and Girls Club,
and it seems to grow every year.
So we would use those dollars that we are using on these
frivolous lawsuits to continue to grow the community, be a part
of the community. When it comes to rural health care, there is
a lot of issues there, people struggling with mental health. So
that is how we would use those dollars.
The Chairman. Thank you very much.
Vice Chair Murkowski?
Senator Murkowski. Thank you, Mr. Chair. I have another
question regarding the Lytton Rancheria Homelands Act. This was
included in the 2019 NDAA law. And there was a gaming
prohibition on trust land acquisitions for the Lytton Rancheria
in that language.
As I understand it, S. 4000 is meant to be a clarifying
bill. Does the 2019 prohibition on gaming in that law restrict
gaming on any lands to be taken into trust for Lytton Rancheria
going forward?
Mr. Mejia. Yes, it does, in Sonoma County, and we also have
a standing MOA with Sonoma County that we would not prohibit
gaming.
Senator Murkowski. Very good. Thank you for the
clarification.
The Chairman. Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Chairman Schatz, thank you, as well as to
Vice Chair Murkowski.
First, I want to thank you for holding a hearing on our
Crow Tribe Water Settlement Amendments Act. I want to thank
Chairman Whiteclay for coming all the way from Montana here to
D.C. to support the Crow people, as well as Mr. Carlson from
the Blackfeet Tribe. It is an honor to have you here as well.
Thank you for coming from our neighboring State, South Dakota.
I know Montana, your heart is there, and a number of the
Blackfeet Tribe.
In 2010, Congress passed the Crow Tribe Water Rights
Settlement Act. It codified the 1999 compact between the Crow
Tribe and State of Montana, that our State legislature passed
with bipartisan support. Since 2010, the Crow Tribe has worked
with the Bureau of Reclamation to implement this settlement and
to bring water to their people.
Unfortunately, the original water project envisioned in the
2010 bill was found to be infeasible, the project that they
defined in the compact, which is why we must make this really
technical correction, a minor amendment to the bill.
Let me be clear what this bill does and does not do. It
does not alter any existing water rights. It does not add any
additional funds to the settlement. It does not open up the
compact agreed to by the State, the Crow Tribe, and the Federal
Government.
What it does do is very surgically amends the 2010 bill to
allow a little more flexibility for the Crow Tribe to actually
build a water system for their people in a way that is more
cost-effective, lower impact, and brings drinking water to the
greatest amount of people.
I want to commend Chairman Whiteclay for his work on this
bill, and look forward to asking some questions on the impact
of this legislation.
Before turning to a couple of questions, I want to make one
comment regarding the Crow Revenue Act. It is a separate issue.
I will say I am disappointed that my Crow Revenue Act was not
included in today's hearing. This bill was made public and
introduced the same day as the Crow Tribe Water Settlement
Amendments Act. Both bills significantly help the Crow Tribe.
Both bills are supported by the tribe, by the State of
Montana, and by the communities. I truly hope we can have a
hearing on my Crow Revenue Act as soon as possible, let's say
July 10th might be a good date.
[Laughter.]
Senator Daines. Assistant Secretary Newland, for the
record, will you please verify that our bill does not affect
existing water rights, does not add additional funds to
settlements, and does not alter the compact between the State
of Montana and the Crow Tribe?
Mr. Newland. Thank you, Senator. It is great to see you
again. Yes, those are all correct.
Senator Daines. Thank you.
Chairman Whiteclay, the Crow Tribe Water Settlement
Amendments Act and the Crow Revenue Act both bolster tribal
sovereignty, increase energy security, and we both know, fund
much-needed resources on the reservation. Could you explain to
the Committee why both of these bills need to be enacted this
year and how they will affect access to services on the
reservation?
Mr. Whiteclay. Thank you, Senator. Yes, both bills are
detrimental for the tribe, excuse me, not detrimental, but I
believe it is detrimental that we don't have those bills in
place. For the Crow Tribe, this is a 10-year riddle for clean
water. It is a basic human right. To have all this funding and
to not figure out how we can get water to every community and
have to make that decision on which community doesn't get
water, that is a decision no leader should make.
So this bill would support all the communities getting
clean water and the folks in the country, that live in the
country, would have clean drinking water. The Crow Revenue Act
is a bill that basically keeps the tribe afloat for the next 10
years. With the closure of our single source of revenue, one of
our single sources of revenue, which is the Soligan Mine, which
now has no, our main customer shut down, we have no revenue
coming in from the coal which would completely replace it, it
would not replace it wholly, but it will make it viable for the
tribe to find other sources of revenue and diversify our
portfolio. Because a lot of the funds, the Crow Tribe, we
didn't get to participate in all the government funding that
came down because of a problem that we had with a do not pay
list that the tribe was unjustly put on.
So all the good government money that was coming down and
all the grants and all that, we weren't available to
participate in that. So all the services that we provide, that
is on ourselves for social services. MMIW, search and rescue,
Crow Tribe is ground zero for the MMIW right now. You see all
the documentaries, all the missing and murdered. That is all
done on the general fund, on the back of the Crow Tribe, with
no input from the Federal grants.
We are on a reimbursement basis, meaning that to get
Federal funds, we have to expend our own funds to start with.
So the Crow Revenue Act would actually give us some room to
breathe on that, keep our head almost above water.
Senator Daines. Thank you.
I have one more sentence to add as I close it out, Mr.
Chairman. But I do wish, those who have not been out to Crow
Country, I would love to see members of this Committee come out
and spend a day with you to see the serious issues you face as
chairman, the poverty, the Mexican cartels, we talked about
that today, the flood of fentanyl coming in. This is an
existential threat truly to the economic viability of your
people.
My last statement is, I ask for unanimous consent to add
letters of support to the record including one from Governor
Gianforte of Montana.
Thank you.
The Chairman. If there are no more questions for our
witnesses, members may also submit follow-up written questions
for the record. The hearing record will be open for two weeks.
I want to thank all of our witnesses for their time and their
testimony today.
This hearing is adjourned.
[Whereupon, at 3:37 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. David Hill, Principal Chief, Muscogee
(Creek) Nation
Dear Chair Schatz, Vice Chair Murkowski, 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 S. 3263 and H.R. 6180. The Muscogee (Creek) Nation
opposes this legislation for three 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; and (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. For these reasons, we oppose S. 3263 and 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.
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 S. 3263 and H.R. 6180 which single out one Tribe at the expense
of others. We have spoken to many Tribes who fear that if legislation
passed is 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 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 have been retained in the Committee files.
---------------------------------------------------------------------------
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. 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 from the Muscogee (Creek) Nation in present-day
Wetumpka, Alabama. 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 has been retained in the Committee files.
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
Hicko1y 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. 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, 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.
Indeed, enacting this legislation would condone Poarch's behavior
and encourage others to follow in Poarch's footsteps.
Furthermore, S. 3263 and H.R. 6180 go 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 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, 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.'' 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/asia/ofa/petition/
O13_prchcr_AL/013_pf.pdf.
S. 3263 and H.R. 6180, however, attempt 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. \3\ 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.
---------------------------------------------------------------------------
\3\ 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/
O13_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. 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.
---------------------------------------------------------------------------
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.
______
Robb&Ross
June 17, 2024
Hon. Brian Schatz;
Hon. Lisa Murkowski,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Re: S.4000--To reaffirm applicability of IRA to Lytton
Rancheria
Dear Chairman Schatz and Vice Chairman Murkowski:
I write on behalf of Artichoke Joe's to provide further comment on
S. 4000, a bill concerning the Lytton Rancheria of California, and on
testimony received during the hearing on the bill.
During the hearing, Chairman Schatz asked Assistant Secretary
Newland if the prohibition on gaming in the Lytton Rancheria Homelands
Act (included in the 2019 NOAA (S. 1790), hereafter the ``2019 Lytton
Act'') would apply to future lands taken into trust pursuant to S.
4000, and Assistant Secretary Newland answered ``Yes.''
A few minutes later, Vice Chairman Murkowski, in addressing Tribal
Chair Mejia, repeated that the 2019 Lytton Act included a prohibition
on gaming on any lands taken into trust for the Tribe under its
provision and she then questioned since S. 4000 is meant to be a
clarifying bill, whether the 2019 prohibition restricts games on any
land lands to be taken into trust for Lytton going forward. The tribal
chairman answered in the affirmative.
These questions misconceive the nature of S. 4000 and are very
misleading. The 2019 Lytton Act granted the Lytton rights to have
certain lands taken into trust without any regard to the Indian
Reorganization Act (the ``IRA'') or its requirement that the tribe
existed when the IRA was enacted in 1934. The 2019 Lytton Act did not
enable land to be taken into trust under the IRA. Rather, in it
Congress declared that certain land ``is hereby taken into trust for
the benefit of the [Lytton].'' There was no reason to address whether
the tribe existed in 1934 or whether it was eligible to have lands
taken into trust under the IRA, and Congress did not address those
issues. Further, the reason the tribe asked Congress to pass the 2019
Lytton Act ordering the land taken into trust was undoubtedly the same
reason Congress inserted a provision into the 2000 Omnibus Indian
Advancement Act (H.R. 5528, Sec. 819) to take casino land into trust
for the tribe--because the tribe did not satisfy the criteria for
administrative approvals under the IRA and IGRA.
In contrast to the 2019 Homelands Act, S. 4000 does not direct that
specific land be taken into trust, but rather addresses the IRA issues
stemming from Carcieri v. Salazar (2009) 555 U.S. 379, which held that
the IRA allows land to be taken into trust only for tribes which
existed and were recognized in 1934. Even though no Lytton tribe
existed in 1934, S. 4000 backdates the tribe's formation so that the
tribe can have lands taken into trust pursuant to the IRA.
S. 4000 would allow the Lytton to qualify to have lands taken into
trust under the IRA and thus would render obsolete the 2019 Lytton Act.
Therefore, the gaming restrictions under the 2019 Lytton Act would not
apply. Thus the answer to the questions asked by the Chairman and Vice
Chairman should have been in the negative. If and when lands are taken
into trust, it will be under the IRA, not under the 2019 Lytton Act,
and the 2019 Lytton Act's prohibition on gaming will not apply.
Further, the prohibition in the Lytton Rancheria Homelands Act
applies only to land taken into trust in Sonoma County. S. 4000 does
not limit the Lytton to putting land in Sonoma County into trust and
could allow land to be taken into trust in other nearby counties. In
that regard, years ago, the Lytton obtained an option to buy land in
American Canyon, barely 10 miles outside Sonoma County.
So if the Senate is concerned about gaming on the land, which it
should be and which both the Chairman and Vice Chairman voiced, a
provision should be inserted into this bill prohibiting gaming on the
lands to be purchased, pursuant to this backdating provision.
We further note that the stated purpose of S. 4000, that it is
clarifying the 2019 Lytton Act, misrepresents the situation and the
nature of the bill. The Act cannot ``reaffirm the applicability of the
IRA'' because the applicability of the IRA has never been affirmed. The
whole reason why Rep. George Miller inserted an amendment for the
Lytton into the 2000 Omnibus Act and that Rep. Jared Huffman obtained
the 2019 Lytton Act is because the Lytton were not in existence in 1934
and did not qualify under the IRA.
S. 4000 would preclude the fact finding process which is applicable
in these situations and falsely find facts that are not true. Based on
these falsehoods, it would then grant the Lytton a privilege not
granted to any other tribes. This is not fair to other tribes or to the
general population. Congress should let the administrative and judicial
processes in place take their course and refrain from granting special
exemptions, especially a special exemption that attempts to conceal its
true nature as this one does.
We appreciate your consideration of these comments.
Sincerely,
Alan Titus
______
Artichoke Joe's Casino
June 11, 2024
Hon. Brian Schatz;
Hon. Lisa Murkowski,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Re: S.4000
Dear Chairman Schatz and Vice Chairman Murkowski:
Artichoke Joe's writes in opposition to S. 4OOO, a bill which would
declare that the Lytton tribe is subject to the lndian Reorganization
Act of 1934 even though in 1934, no Lytton tribe existed and no lndian
people lived on the Lytton Rancheria.
ln March 1927, the Office of lndian Affairs (precursor to the
Bureau) purchased a 50 acre tract of land in Healdsburg, a farming area
about 70 miles north of San Francisco. No lndians lived on the land
then or for the next 10 years. Then in 1937 , an lndian man named Bert
Steele wrote to the local lndian Affairs office and asked for land at
Lytton. Mr. Steele's father was a half-blooded Nomelacki lndian and his
mother a half-blooded Pit River lndian (from 160 and 200 miles north,
respectively) and Mr. Steele had previously been allocated land in
Round Valley (120 miles north). The local agency granted Mr. Steele 16
acres on the Lytton Rancheria and then a year later assigned 1O acres
to another lndian family. No other lndians ever lived on this
ranchieria, and the government gifted the rancheria lands to the
residents around 1960.
These two families had left their tribal lands. They never formed
or constituted a tribe. Tribes lived on reservations and reservations
restricted individuals. They were looking to break free of tribal life.
This was not tribal land as people conceive of the term, lands occupied
by a tribe since before the state was formed, and left largely to
govern themselves.
The IRA allows the federal government to take land into trust for
lndian tribes that existed in 1934 when the Act was passed. That does
not apply to Lytton. S. 40OO constitutes an attempt to rewrite history
and create a history that never occurred. lt is a cynical attempt to
create a Lytton tribe that never existed before 1980 and to backdate
the creation to before 1934. ln short, it is a lie.
Second, even if the Lytton had existed as a tribe in 1934, but had
not yet been recognized, there is a further problem with S. 4000 in
that it would constitute a ``Carcieri fix'' for a single tribe. ln
2009, in Carcieri v. Salazar, the Supreme Court ruled that the IRA
applied only to tribes in existence and recognized in 1934. Since then
Congress has considered legislation that would allow tribes not
recognized until after 1934 to have land taken into trust, but has not
been able to agree on the details of such new legislation. This bill,
instead of creating a law that would apply equally to all tribes, would
confer benefits a single tribe, without any findings of why this group
alone qualifies for such an exception. To date, Congress has wisely
resisted passing exceptions for single tribes, and the Lytton, a tribe
that would never satisfy any reasonable criteria applicable to all
tribes, does not merit an exception.
Third, the IRA itself only allows for taking land into trust. lt
does not and cannot create lndian sovereignty on land over which the
state has sovereignty. With the advent of ``reservation shopping,''
this issue has come to the fore, and it has never been adequately
addressed. lf Congress makes any changes to, or affirms application of
the IRA to a tribe formed after 1934, it should address this vitally
important issue.
We appreciate your consideration of these comments.
Very Truly Yours,
Cody Sammut, President
______
Mekko George Thompson
June 20, 2024
I am shocked and outraged to learn that Congress is considering
passing legislation that will help the Poarch Creek Band of Indians
destroy more sacred sites within our Mvskoke homelands.
When the Poarch asked the federal government for taxpayer funds to
purchase the original Hickory Grounds site, they promised to preserve
it. They made a big deal out of telling the government that they were
protecting it for the ``Creeks in Oklahoma,'' That would have been the
right thing to do. We are the only tribe to lay our ancestors to rest
at this place, and it is our ancestors who were left behind when our
people were herded onto the long walk to Oklahoma.
But Poarch broke that promise. They dug up my ancestors, put them
in boxes, and built a casino directly on top of my family's burial
ground. Many of those people remain in boxes, never returned to us or
reburied. You can dress it up however you like, but those are the
simple facts that can never be justified.
For years, Poarch has misled, obfuscated, and made excuses to
escape accountability and do the right thing. That's why I filed a
lawsuit, and we look forward to our day in court sometime this fall.
I believe the legislation the Poarch is asking Congress to pass is
just one more attempt to evade accountability for what they did at
Hickory Ground. One of our claims is that the federal government
violated federal law when it placed our sacred site and burial ground
in trust for the Poarch. The Poarch know what they did is wrong, and
now they want Congress to bail them out.
What's worse is if this bill is passed, not only will the Poarch be
rewarded for destroying my family's burial grounds, but there will be
no protections against them doing it again elsewhere.
We couldn't believe they would do such a thing when all this began,
so we went to Alabama to see for ourselves. Our group broke down in
tears at the site of bulldozers and dirt piles where our ancestors once
lay in peace. We felt despair and hopelessness. We felt like we had
failed at our sacred duty to keep our ancestors at peace, as we are
commanded in our culture.
But you don't have to be Native to understand how bad this is. I
suspect most anyone would be outraged if it were their family ripped
out of the ground and stored in a cardboard box on a shelf somewhere to
make way for a casino. For years, Poarch kept my relatives stored in
buckets, trash bags, and news bags, before sending them off to a
university. To unearth one remain, it's not right. But to unearth 57
remains, it's beyond comprehension. It's wrong in any culture.
That is why we will never stop fighting for justice for Hickory
Ground.
That's also why any member of Congress with a conscience should
reject the legislation that the Poarch are asking them to pass.
______
COALITION OF LARGE TRIBES (COLT)
June 21, 2024
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 percent 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 sixteen 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
______
Response to Written Questions Submitted by Hon. Lisa Murkowski to
Hon. Bryan Newland
Question 1. Please provide a summary of funding levels and funding
sources appropriated to DOI and the Inter Tribal Buffalo Council for
the buffalo program for fiscal year 2019 through fiscal year 2024.
Answer. The Department of the Interior, through the Bureau of
Indian Affairs Tribal Management/Development Program (TMDP) has
provided funds to the Inter-Tribal Buffalo Council (ITBC). The below
chart details the amount provided, in thousands, for fiscal years 2019
through 2024. The first row, ``ITBC,'' reflects base funding that the
ITBC receives for herd development grant projects, salaries, and
operational costs. The second row below reports additional funds that
the ITBC has received from the TMDP to assist Tribes in the acquisition
of surplus bison from Yellowstone National Park.
------------------------------------------------------------------------
2019 2020 2021 2022 2023 2024
------------------------------------------------------------------------
ITBC $1,393 $1,393 $1,393 $1,393 $1,523 $1,523
Yellowstone/Bison $240 $740 $740 $740 $809 $809
Herd
------------------------------------------------------------------------
The Inter-Tribal Buffalo Council (ITBC) was established in 1992 to
return bison to Indian Country to preserve the historical, cultural,
traditional, and spiritual relationship between bison and Native
Americans for future generations. Since its inception over 30 years
ago, ITBC's membership has grown to 82 Tribes in 20 States, which
collectively comprise nearly one million enrolled Tribal members on 32
million acres of Tribal land. The organization provides member Tribes
with technical assistance in wildlife management and ecological and
cultural enhancement services. ITBC offers assessments of current and
potential Tribal bison programs and recommendations on fencing, corral
and facility design, equipment, research, range management, herd
health, and community awareness. ITBC provides education and training
to American Indian bison managers and technicians. ITBC staff provides
educational presentations and resources on bison status, restoration,
and conservation efforts, as well as the history and culture of bison
to the American Indian population. ITBC annually operates a bison herd
development grant program that provides Tribes with funding for program
startup and other bison restoration activities.
ITBC employees work with the National Park Service and U.S. Fish
and Wildlife Service to obtain surplus bison for redistribution to
Tribal bison projects. Tribes receive bison for their programs at no
cost, however, ITBC and other recipients do cover the transportation
costs for bison from federal herds to their destination. ITBC also
facilitates some transfers of surplus bison from Tribe to Tribe. When
Tribes have excess animals, ITBC may assist bison partners with finding
other Tribes that want the bison and determines the best location for
the bison. As an economic development initiative for Tribes, ITBC
employees work to develop markets for bison meat and products that will
utilize bison from Tribes interested in participating in the program.
ITBC procures bison from Tribes and sells the meat under the ITBC
label. ITBC currently markets bison meat from the Tribes to the
National Museum of the American Indian in Washington, DC and is
expanding to more customers. ITBC also works to support the efforts of
United States Department of Agriculture to continue to offer Tribal
bison meat in the Food Distribution Program on Indian Reservations.
The ITBC provides supports to the Yellowstone Bison Conservation
Transfer (i.e., brucellosis quarantine) Program, is an active partner
of the Yellowstone Interagency Bison Management Plan, and participates
as a cooperator in the Department of the Interior (DOI) Bison Work
Group. The ITBC also provides technical assistance and services to
member Tribes, including those participating in the Yellowstone Bison
Quarantine program, by facilitating the transfer of bison from the
Federal herds to Tribes.
Question 2. Is it the Department's interpretation of S. 2908 that
the bill will cover the costs of transporting mobile meat processing
facilities by air or barge to places like Old Harbor, Stevens Village,
or other rural and remote interior villages that manage bison herds?
Would such authority need to be clarified in the bill?
Answer. S. 2908 as drafted is flexible and broad so that Tribal
considerations can be given to elect to use funds for bison and
equipment transport costs.
[all]