[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
H.R. 2130, H.R. 2388, H.R. 2815,
AND H.R. 3073
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 21, 2025
__________
Serial No. 119-29
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
60-609 PDF WASHINGTON : 2026
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COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
ROBERT J. WITTMAN, VA, Vice Chairman
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA,
Tom McClintock, CA Joe Neguse, CO
Paul A. Gosar, AZ Teresa Leger Fernandez, NM
Aumua Amata C. Radewagen, AS Melanie Stansbury, NM
Doug LaMalfa, CA Val Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Russ Fulcher, ID Jared Golden, ME
Pete Stauber, MN Dave Min, CA
Tom Tiffany, WI Maxine Dexter, OR
Lauren Boebert, CO Pablo Jose Hernandez, PR
Cliff Bentz, OR Emily Randall, WA
Jen Kiggans, VA Yassamin Ansari, AZ
Wesley P. Hunt, TX Sarah Elfreth, MD
Mike Collins, GA Adam Gray, CA
Harriet M. Hageman, WY Luz Rivas, CA
Mark Amodei, NV Nydia Velazquez, NY
Tim Walberg, MI Debbie Dingell, MI
Mike Ezell, MS Darren Soto, FL
Celest Maloy, Utah Julia Brownley, CA
Addison McDowell, NC Vacancy
Jeff Crank, CO
Nick Begich, AK
Jeff Hurd, CO
Mike Kennedy, UT
Vivian Moeglein, Staff Director
William David, Chief Counsel
Ana Unruh Cohen, Democratic Staff Director
http://naturalresources.house.gov
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SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
JEFF HURD, CO, Chair
AUMUA AMATA C. RADEWAGEN, AS, Vice Chair
TERESA LEGER FERNANDEZ, NM, Ranking Member
Aumua Amata C. Radewagen, AS Nydia M. Velazquez, NY
Doug LaMalfa, CA Val T. Hoyle, OR
Tim Walberg, MI Pablo Jose Hernandez, PR
Addison McDowell, NC Emily Randall, WA
Mike Kennedy, UT Jared Huffman, CA, ex officio
Bruce Westerman, AR, ex officio
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CONTENTS
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Page
Hearing Memo..................................................... v
Hearing held on Wednesday, May 21, 2025.......................... 1
Statement of Members:
Hurd, Hon. Jeff, a Representative in Congress from the State
of Colorado................................................ 1
Panel I:
Randall, Hon. Emily, a Representative in Congress from the
State of Washington........................................ 3
Maloy, Hon. Celeste, a Representative in Congress from the
State of Utah.............................................. 4
Prepared statement of.................................... 5
Johnson, Hon. Dusty, a Representative in Congress from the
State of South Dakota...................................... 6
Prepared statement of.................................... 7
Begich, Hon. Nicholas, a Representative in Congress from the
State of Alaska............................................ 17
Prepared statement of.................................... 18
Statement of Witnesses:
Panel II:
Gonzales, Hon. Tina, Chairwoman, Shivwits Band of Paiutes,
Ivins, Utah................................................ 10
Prepared statement of.................................... 11
Questions submitted for the record....................... 15
Harris, Hon. Thomas, Vice President, Cape Fox Corporation,
Ketchikan, Alaska.......................................... 19
Prepared statement of.................................... 20
Questions submitted for the record....................... 21
Charles, Hon. Frances, Chairwoman, Lower Elwha Klallam Tribe,
Port Angeles, Washington................................... 22
Prepared statement of.................................... 24
Shepherd, Eric, Vice Chairman, South Dakota Native
Homeownership Coalition, Sisseton, South Dakota............ 31
Prepared statement of.................................... 33
Questions submitted for the record....................... 35
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Hurd
U.S. Department of the Interior, Statement............... 47
U.S. Department of Agriculture and U.S. Forest Service,
Statement.............................................. 49
Submissions for the Record by Representative Randall
National Parks Conservation Association, Letter of
Support................................................ 39
Submissions for the Record by Representative Begich
Cape Fox ANSCA, Letters of Support....................... 50
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
To: House Committee on Natural Resources Republican Members
From: Indian and Insular Affairs Subcommittee staff: Ken
Degenfelder ([email protected]), and Kirstin
Liddell ([email protected]) x6-9725
Date: Monday, May 19, 2025
Subject: Legislative Hearing on H.R. 2130, H.R. 2388, H.R. 2815, and
H.R. 3073
________________________________________________________________________
_______
The Subcommittee on Indian and Insular Affairs will hold a
legislative hearing on four bills: H.R. 2130 (Rep. Johnson of SD),
``Tribal Trust Land Homeownership Act of 2025''; H.R. 2388 (Rep.
Randall), ``Lower Elwha Klallam Tribe Project Lands Restoration Act'';
H.R. 2815 (Rep. Begich), ``Cape Fox Land Entitlement Finalization Act
of 2025''; and H.R. 3073 (Rep. Maloy), ``Shivwits Band of Paiutes
Jurisdictional Clarity Act'' on Wednesday, May 21, 2025, at 10 a.m. in
1324 Longworth House Office Building.
Member offices are requested to notify Haig Kadian
([email protected]) by 4:30 p.m. on Tuesday, May 20, 2025, if
their member intends to participate in the hearing.
I. KEY MESSAGES
House Republicans are holding a hearing on four bills that
will support tribal sovereignty and the restoration of
tribal homelands, cut bureaucratic red tape, and boost
economic development.
H.R. 2130 would require the Bureau of Indian Affairs (BIA)
to process and complete all residential and business
mortgage packages on Indian land within 20 or 30 days,
depending on the type of application.
H.R. 2388 would take approximately 1,083 acres of National
Park Service (NPS) land into trust for the Lower Elwha
Klallam Tribe.
H.R. 2815 would finalize the Cape Fox Corporation's Alaska
Native Claims Settlement Act (ANCSA) land conveyance while
alleviating any future land management concerns associated
with the development of the Mahoney Lake power project.
H.R. 3703 would ensure that the Utah state court has
jurisdiction over civil cases involving the Shivwits Band
that occur on the tribe's land, while ensuring that Federal
court is an option when resolving disputes arising from
contracts in which the Shivwits Band is a party.
Additionally, H.R. 3703 follows congressional precedent by
amending the Long-Term Leasing Act (LTLA) to allow the
Shivwits Band to lease their land for a term of up to 99
years.
II. WITNESSES
Panel I:
Members of Congress TBD
Panel II:
The Hon. Tina Gonzales, Chairwoman, Shivwits Band of
Paiutes, Ivins, UT [H.R. 3073]
The Hon. Thomas Harris, Vice President, Cape Fox
Corporation,
Ketchikan, AK [H.R. 2815]
Mr. Eric Shepherd, Vice Chairman, South Dakota Native
Homeownership Coalition, Sisseton, SD [H.R. 2130]
The Hon. Frances Charles, Chairwoman, Lower Elwha Klallam
Tribe, Port Angeles, WA (Minority Witness) [H.R. 2388]
III. BACKGROUND
H.R. 2130 (Rep. Johnson of SD), ``Tribal Trust Land Homeownership Act
of 2025''
H.R. 2130 would require the BIA to process and complete all
residential and business mortgage packages on Indian land within 20 or
30 days, depending on the type of application. This would more closely
align the BIA's processing of mortgage packages with current industry
practices. H.R. 2130 would also require an annual report on mortgages
reviewed by the BIA to be submitted to Congress, require the Government
Accountability Office (GAO) to review the need for digitization of
mortgage records to streamline the mortgage process at BIA, establish a
Realty Ombudsman position, and provide read-only access to the BIA's
Trust Asset and Accounting Management System (TAAMS) to relevant
agencies and tribes.
Indian lands primarily fall into one of three categories: trust,
fee, and restricted fee. H.R. 2130 would only impact land held in
trust, which is land owned and managed by the United States through the
Department of the Interior (DOI) for the benefit of an Indian tribe or
individual Indians. Trust land preempts State tax and regulatory
authority and is also inalienable.
When an individual seeks to purchase a property or house, they will
take out a loan with a lending institution, usually a bank, to pay for
the purchase. That resulting mortgage gives the lending institution the
right to repossess the property if the borrower does not repay the
loan. However, for mortgages taken out by individual Indians for a
tract of trust land, there are additional BIA processes for approval,
primarily because the federal government ultimately holds title to
trust lands.
Mortgage applications related to trust lands must be submitted
through the regional BIA agency. The applications tend to fall into two
categories: leasehold or trust land mortgages. Leasehold mortgages
refer to mortgages on trust land owned by another tribal landowner,
while trust land mortgages refer to mortgages obtained for trust land
that an Indian owns themselves.1
Current law outlines regulatory time frames for reviewing and
approving leasehold and rights-of-way (ROW) mortgages.2
There are no outlined time frames for trust land mortgages.3
The BIA has published its Mortgage Handbook, outlining its mortgage
review process.4 Upon receiving a proposed leasehold
mortgage package, the BIA is to input the data into the Realty Tracking
System (RTS) and the Mortgage Tracker. The BIA then has 10 days to
complete a preliminary review to ensure that the package is complete.
The package must contain all required documents, the lease must be
encoded, approved, and recorded in the TAAMS, and the required
checklist must be included in the case file.5 Before the 10
days expire, the BIA must send an acknowledgement letter either
verifying the preliminary review was completed, or that the package was
incomplete with the missing documents specified. The RTS and Mortgage
Tracker is then to be updated with the relevant outcome. The BIA then
has 20 days from the time it sends the acknowledgment letter to either
approve or deny the leasehold mortgage and send a subsequent Decision
Letter. For a ROW leasehold mortgage, the BIA has 30 days. Two business
days after receiving the approved leasehold mortgage, the BIA must
complete all necessary s to request recordation by the Land Titles
and Records Office (LTRO) and request a certified Title Status Report
(TSR) using the TAAMS TSR request module. Upon completion, the BIA must
update the Mortgage Tracker.6
Proponents of H.R. 2130 advocate that, despite the timeline
provided in the BIA Mortgage Handbook, there are still extensive delays
in reviewing and approving or denying mortgages. One report from the
Federal Reserve Bank of Minneapolis highlighted issues mentioned at a
U.S. Senate hearing about prospective borrowers from the Fort Belknap
tribe waiting over a year for a certified TSR, and that TSR timelines
have been cited in multiple reports as a barrier to trust land
development.7
In the 118th Congress, a legislative hearing was held on a similar
bill.8 Tribal testimony supported the bill for ``designing
new BIA systems'' 9 and ``streamlining existing processes''
10 to align tribal mortgage practices with private industry
mortgage practices.
H.R. 2130 sets clear timelines by which the BIA must process and
approve mortgages that relate to property located on tribal trust land.
The BIA would need to notify lenders that they have received
application documentation and perform an initial review no later than
10 days after receipt. Depending on the application in question, the
BIA would have 20 or 30 days to provide approval or denial of the
documents. Additionally, this bill would establish a specialized
position within the BIA to facilitate communication between the BIA,
tribes, tribal members, lenders, and federal agencies that operate
tribal housing programs.
H.R. 2388 (Rep. Randall), ``Lower Elwha Klallam Tribe Project Lands
Restoration Act''
The Lower Elwha Klallam Tribe is located within the Olympic
Peninsula in Northwest Washington and has approximately 984 enrolled
members.11 The tribe's land today is around 1,000 acres near
the Elwha River.12 The tribe signed the Treaty of Point No
Point in 1855, which entitled them to share a small reservation with
their rival tribe that was not on their traditional lands of the Strait
of Juan de Fuca and Discovery Bay.13 After signing the
treaty, most tribal members opted not to live on their reservation, but
rather by the rivers, shorelines, and sites of their ancestral burial
grounds.14 Through the Indian Reorganization Act of 1934,
the Federal Government acquired 372 acres of land and assigned it to 14
families in the Tribe. In 1968, the Tribe received federal recognition,
which included the acres given to the families.15 As a
result of federal recognition, the Lower Elwha Reservation was formally
established for the tribe.16
H.R. 2388 would take approximately 1,083 acres of National Park
Service (NPS) land into trust for the Lower Elwha Klallam Tribe. The
NPS acquired most of the land in the 1990s through the Elwha River
Ecosystems and Fisheries Restoration Act (Elwha Act).17
Under the Elwha Act, the Elwha and Glines Canyon dams were to be
removed in an effort to restore the Elwha River and the native
Anadromous fisheries (i.e. species of salmon and trout). The Elwha Dam
removal began in 2011 and ended in 2014. The Elwha Act also required
the NPS to identify lands to transfer to the Lower Elwha Klallam Tribe
for housing, cultural, or economic development purposes and place them
into trust.18 The remaining land was acquired by DOI to
construct a surface water pipeline for the tribe's fish
hatchery.19
A map of the proposed parcels to be placed into trust can be found
here:
https://naturalresources.house.gov/uploadedfiles/map_for_hr_2388.pdf
H.R. 2815 (Rep. Begich), ``Cape Fox Land Entitlement Finalization Act
of 2025''
The Cape Fox Corporation (CFC) serves as the Alaska Native Village
Corporation for the communities of Saxman, Alaska, located on the South
Tongass Highway, three miles south of Ketchikan.20 Saxman is
a Tlingit community that centers on subsistence
activities.21
In 1971, ANCSA was enacted to settle the aboriginal land claims of
Alaska Natives.22 Through ANCSA, Alaska Native Corporations
(ANCs) were established to receive land under the settlement and
disperse the payments to Alaska Natives. Alaska Natives received a
$962.5 million settlement payment and roughly 44 million acres of land,
which were divided between almost 200 village corporations and 12
regional corporations established by the legislation.23
Under section 16(b) of ANCSA, Alaska Native Villages that fell
under the Tlingit-Haida Settlement provision were able to select 23,040
acres of land within the core township of the Native
village.24 For the CFC, this meant lands near the Alaskan
towns of Saxman and Ketchikan. Currently, the CFC has received a
conveyance of 22,860 acres, with roughly 180 acres
remaining.25 To fulfill the remaining ANSCA entitlements,
these 180 remaining acres must be conveyed.
The Bureau of Land Management (BLM), the body responsible for
conveying the remaining acres to CFC, has stated that ANCSA and
Departmental regulations require the acres to be in the core township.
BLM has been in the process of conveying specific parcels of land to
the CFC since 2022.26 These parcels make up 184.57 acres of
land. However, the CFC has formally rejected the proposal.27
The CFC claims that the lands proposed by BLM are not only outside of
the ``core township'' regulations that BLM holds itself to, but are
also noncontiguous to the land previously conveyed.28
Additionally, the CFC is concerned about these acres' lack of economic
value.29
The CFC has identified 180 acres of alternative land between
parcels previously conveyed to the CFC. These 180 acres would allow for
the development of the Mahoney Lake Power Project 30 which
has been an ongoing project aiming to address the growing power demand
in the Ketchikan, Saxman, and Metlakatla area.31 This past
winter, all available power, approximately 38 MW, was online. Yet, the
power demand exceeded the supply, and scheduled brownouts were
required.32 Additional power is needed to sustain the
current demand and provide for economic growth.
The CFC holds the Federal Energy Regulatory Commission (FERC)
license needed to develop a power facility at Mahoney Lake in
Ketchikan, which would exist on the CFC-owned land. This license
includes an easement for a powerline/road corridor from the Mahoney
Lake site to the Beaver Falls Substation on the Ketchikan Power Grid.
The CFC currently owns the land adjacent to the Beaver Falls substation
as well.33 The 180 acres described in this legislation would
connect the properties already owned by CFC and alleviate any access
and management issues as the Mahoney Lake power corridor is developed
and the power infrastructure is brought online.34
H.R. 2815 would finalize the CFC's ANCSA land conveyance while
alleviating any future land management concerns associated with the
development of the Mahoney Lake power project. This legislation has the
support of various Alaska organizations,35 Government
representatives, and impacted groups.36
A map of the proposed land conveyance can be found here:
https://naturalresources.house.gov/uploadedfiles/
capefox_finalselection_parcel_map_ 03162023.pdf
H.R. 3073 (Rep. Maloy), ``Shivwits Band of Paiutes Jurisdictional
Clarity Act''
The Shivwits Band of Paiutes (Shivwits Band) is a federally
recognized tribe residing on a 28,000-acre ancestral reservation just
outside of St. George, Utah,37 and currently has 311
enrolled members.38 The tribe traditionally inhabited
southern Utah, southern Nevada, and southern California, adjacent to
the Colorado River.39 In 1935, the Shivwits Band was
officially recognized as a federal tribe under the Indian
Reorganization Act.40 However, the federal government
terminated the Shivwits Band and every other Paiute Band in
1954.41 Nevertheless, the Shivwits performed self-governing
functions and leased their land to ranchers in the area.42
In 1980, Congress passed the ``Paiute Restoration Act'',43
which was signed into law and reestablished the trust relations between
the federal government and the Paiute Indians of Utah, which included
restoring trust relations with the Shivwits Band.44 The
Shivwits Band established its constitution in 1981 and has been fully
recognized and functioning since then.45
While the Shivwits Band intends to further its economic
development, a 2022 Tenth Circuit Court of Appeals case stunted that
development.46 In Ute Indian Tribe of the Uintah and Ouray
Reservation v. Lawrence (Lawrence), the Tenth Circuit Court of Appeals
ruled that Utah state courts lack the jurisdiction to hear cases
involving on-reservation conduct.47 Additionally, the
Appellate Court found that even in instances where a tribe has provided
a clear and valid waiver of its sovereign immunity, Utah state courts
still lack the jurisdiction unless the requirements of 25 U.S.C
Sec. 1322 48 and 25 U.S.C Sec. 1326 49 are
met.50 Furthermore, Lawrence ruled that for Sec. 1322 to
hold, a special election under Sec. 1326 must have been held. This
decision dismissed the previous arguments that Sec. 1326 was only
required when a tribe wished to permanently authorize the state to
assume all jurisdiction over the tribe.51
For the Shivwits Band, this ruling under Lawrence has led to
economic uncertainty for the tribe and potential investors. Under
Lawrence, the Shivwits Band can no longer consent to state court
jurisdiction on a case-by-case basis, which means if an issue arises
between the Shivwits Band and an outside investor, there is no
guarantee that the state court would be able to intervene. This lack of
clarity has caused hesitancy for outside groups to partner with the
Shivwits Band.52
H.R. 3703 addresses these concerns by assuring that Utah state
courts hold jurisdiction over civil cases involving the Shivwits Band
that occur on their tribal lands, while ensuring that the tribe's
sovereign immunity remains intact unless the tribe waives it. This
protects the Shivwits Band from any unconsented suit but allows the
tribe to consent to Utah state court jurisdiction in contracts and
agreements with outside groups. Additionally, H.R. 3703 ensures that
the Federal court is an option when resolving disputes arising from
contracts in which the Shivwits Band is a party.
H.R. 3703 also amends the Long-Term Leasing Act (LTLA)
53 to authorize the Shivwits Band to lease land held in
trust for their benefit for up to 99 years. In 1955, Congress passed
the LTLA, which generally authorizes any Indian lands held in trust or
land subject to a restriction against alienation to be leased by the
Indian owner, subject to the approval of the Secretary of the Interior,
for 25 years, except for grazing purposes.54 The original
1955 Act also specified that non-grazing leases may be renewed up to
one additional term of 25 years, for a total of 50 years.55
Lease authority up to 99 years is often needed for long-term
commercial leases and some financing contracts. Ensuring tribes can
negotiate effectively, and on the same playing field as other
landholders, can clear the way for further economic development,
especially in rural or extra-rural areas. There is congressional
precedent for this amendment, most recently, the LTLA was amended to
provide additional leasing authority for the Confederated Tribes of the
Chehalis Reservation,56 the Navajo Nation,57 and
the Pueblo of Santa Clara 58 for terms up to 99 years.
H.R. 3703 would make technical changes to the law to ensure that
the Utah state court has jurisdiction over civil cases involving the
Shivwits Band that occur on the tribe's land. Also, H.R. 3703 ensures
that the Federal court is an option when resolving disputes arising
from contracts in which the Shivwits Band is a party. Additionally,
H.R. 3703 follows congressional precedent by amending the LTLA to allow
the Shivwits Band to lease their land for a term of up to 99 years. The
Washington County Commissioners are supportive of H.R.
3703.59
IV. MAJOR PROVISIONS & SECTION-BY-SECTION
H.R. 2130 (Rep. Johnson of SD), ``Tribal Trust Land Homeownership Act
of 2025''
Section 3. Mortgage Review and Processing. This section creates
statutory timelines for the processing and review of mortgage
applications, including notifying the lender as soon as possible that
the application was received, a ten-day turnaround for the preliminary
review of the documents to ensure completion of the application, and a
two-day turnaround for acknowledgment of missing documents. The BIA
would have up to 20 or 30 days (dependent on the type of mortgage) to
approve or deny the application, and 10 days post-approval to provide a
Title Status Report (TSR). Additionally, if requested, the BIA would
have 14 days from the time of the request to provide a first certified
TSR.
If the BIA fails to adhere to these timelines, they must provide
notice of delays to the party that submitted the mortgage package, and
the lender. If requested, the BIA would have to respond to inquiries
about the status of the application, as well as any requests related to
certified status reports.
Additionally, relevant Federal agencies and Tribal Nations will
have read-only access to portals containing relevant land documents
from TAAMS.
The BIA would be required to provide a report to the Senate Indian
Affairs Committee and the House Committee on Natural Resources that
details all requests received, those approved and denied, any situation
in which the timelines were not met, and the length of time it took
each BIA office to provide notice of delays.
One year after enactment, a GAO report detailing the need for
digitizing mortgage packages and the estimated costs must be submitted
to the Senate Indian Affairs Committee and the House Committee on
Natural Resources.
Section 4. Establishment of Realty Ombudsman Position. This section
directs the BIA Director to create a Realty Ombudsman in the Bureau's
Division of Real Estate Services to facilitate all necessary changes
and serve as the point of contact for all associated BIA realty
services.
H.R. 2388 (Rep. Randall), ``Lower Elwha Klallam Tribe Project Lands
Restoration Act''
Section 2. Land Taken into Trust for the Lower Elwha Klallam Tribe.
This section would place 1,082.63 acres of Federal land into trust for
the Lower Elwha Klallam Tribe.
H.R. 2815 (Rep. Begich), ``Cape Fox Land Entitlement Finalization Act
of 2025''
Section 3. Waiver of Core Township Requirement for Certain Land.
This section waives the requirement of CFC to select and receive the
185 acres of land proposed by the BLM for conveyance.
Section 4. Selection Outside Exterior Selection Boundary. This
section directs the Secretary of the Interior to convey to CFC the land
they choose upon the submission of written notice. Additionally, it
establishes that while CFC will hold the surface estate, Sealaska
Corporation will hold the subsurface estate.
Section 5. Public Access Easement. This section allows for
continued public access to the National Forest System land near
Revillagigedo Island.
H.R. 3073 (Rep. Maloy), ``Shivwits Band of Paiutes Jurisdictional
Clarity Act''
Section 3. State Civil Jurisdiction. This section establishes that
the State of Utah has jurisdiction over any civil case that involves
the Shivwits Band on tribal land.
Section 4. Federal Court Jurisdiction. This section establishes
that any contract or agreement, including a lease, shall fall under
``commerce'' as defined in section 1 of title 9, U.S. Code, and fall
under the jurisdiction of a district court as noted in section 1331 of
title 28, U.S. Code.
Section 5. Sovereign Immunity Not Abrogated. This section maintains
the Shivwits Band's sovereign immunity unless explicitly waived by the
tribe.
Section 6. Shivwits Band of Paiutes Leasing Authority. This section
amends the LTLA to allow the Shivwits Band to lease their land for a
term of up to 99 years.
V. CBO COST ESTIMATE
Unknown.
VI. ADMINISTRATION POSITION
Unknown.
VII. EFFECT ON CURRENT LAW (RAMSEYER)
H.R. 3073 (Rep. Maloy), ``Shivwits Band of Paiutes Jurisdictional
Clarity Act''
https://naturalresources.house.gov/uploadedfiles/h.r._3073_ramseyer.pdf
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
LEGISLATIVE HEARING ON: H.R. 2130, TRIBAL TRUST LAND HOMEOWNERSHIP ACT
OF 2025; H.R. 2388, LOWER ELWHA KLALLAM TRIBE PROJECT LANDS RESTORATION
ACT; H.R. 2815, CAPE FOX LAND ENTITLEMENT FINALIZATION ACT OF 2025; AND
H.R. 3073, SHIVWITS BAND OF PAIUTES JURISDICTIONAL CLARITY ACT
----------
Wednesday, May 21, 2025
House of Representatives
Subcommittee on Indian and Insular Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 10 a.m., in
room 1324, Longworth House Office Building, Hon. Jeff Hurd
[Chairman of the Subcommittee] presiding.
Present: Representatives Hurd, Kennedy; Hoyle, Hernandez,
and Randall.
Also present: Representatives Begich, Johnson, and Maloy.
Mr. Hurd. The Subcommittee on Indian and Insular Affairs
will come to order.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
Under Committee rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I therefore ask unanimous consent that all other
members' opening statements be made part of the hearing record
if they are submitted in accordance with rule 3(o).
Without objection, so ordered.
I ask unanimous consent that the gentlewoman from Utah, Ms.
Maloy; the gentleman from Alaska, Mr. Begich; and the gentleman
from South Dakota, Mr. Johnson, be allowed to sit and
participate in today's hearing.
Without objection, so ordered. I will now recognize myself
for an opening statement.
STATEMENT OF THE HON. JEFF HURD, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Hurd. Today our Subcommittee is meeting to discuss four
bills.
The first is H.R. 2130, the Tribal Trust Land Homeownership
Act of 2025, sponsored by Congressman Dusty Johnson. This bill
would require the Bureau of Indian Affairs to process and
complete all residential and business mortgage packages on
Indian Trust land in a timely manner. This bill would only
impact land held in trust, because generally additional
approvals are needed from the BIA when a mortgage on trust land
is sought. Unlike right-of-way and lease-hold mortgages,
currently there are no statutory time frames for the review and
approval of trust land mortgages.
H.R. 2130 would establish private, industry-aligned
standards for the review and approval of trust land mortgages.
The current private industry standard for processing a mortgage
package is within 1 month, and it is critical that the BIA
moves to replicate that time frame. In the current BIA mortgage
handbook there are no outlined binding timelines for each step
in the mortgage process. We have heard story after story from
tribal advocates that these timelines are arbitrary and often
ignored. H.R. 2130 will ensure time frames are established and
followed to help promote homeownership opportunities on trust
lands and in tribal communities.
Our second bill is H.R. 2388, the Lower Elwha Klallam Tribe
Project Lands Restoration Act, sponsored by Congresswoman
Randall. This bill would place approximately 1,100 acres of
National Park Service land into trust for the Lower Elwha
Klallam Tribe. The Lower Elwha Klallam Tribe is located within
the Olympic Peninsula in northwest Washington.
The third bill is H.R. 2815, the Cape Fox Land Entitlement
Finalization Act of 2025, sponsored by Congressman Begich. This
bill would finalize the Cape Fox Village Corporation, or CFC's
Alaska Native Claims Settlement Act, or ANCSA, land conveyance.
ANCSA was enacted to settle the aboriginal land claims of
Alaska Natives. Through ANCSA, Alaska Native Village
corporations were established to receive land under settlement.
Under ANCSA, CFC could select 23,040 acres of land in the
vicinity of Saxman and Ketchikan. The Bureau of Land Management
has identified 184.57 acres of land within the core township of
CFC in an effort to finalize CFC's ANCSA entitlement. CFC has
identified 180 acres of alternative land that lie between land
parcels previously conveyed to them. These acres hold economic
value, as they will play a role in developing the Mahoney Lake
Power Project.
And the final bill in today's hearing is H.R. 3073, the
Shivwits Band of Paiutes Jurisdictional Clarity Act, sponsored
by Congresswoman Maloy. This bill would ensure that the Utah
State Court has jurisdiction over civil cases involving the
Shivwits Band that occur on the Tribe's trust land.
Additionally, this bill would allow congressional precedent by
amending the Long-Term Leasing Act to allow the Shivwits Band
to lease their land for a term of up to 99 years.
Since the Tribe's recognition was restored, the Shivwits
Band has worked to promote economic development on their lands.
However, a 2022 10th Circuit Court of Appeals case, known as
the Lawrence case, has stunted that growth. In Lawrence the
10th Circuit Court of Appeals ruled that the Utah State courts
lacked the jurisdiction to hear cases involving on-reservation
conduct. This means that if an issue were to arise between the
Tribe and an outside investor, there is no guarantee that a
State court could intervene. For the Shivwits Band this ruling
has led to economic uncertainty for the Tribe, as well as to
any potential investors. This bill would address that
uncertainty by assuring that the Utah State courts do hold
jurisdiction over civil cases involving the Tribe.
I thank our witnesses for being with us today, and I look
forward to today's conversation.
Mr. Hurd. The Chair now recognizes the Ranking Minority
Member for any statement.
Ms. Randall.
STATEMENT OF THE HON. EMILY RANDALL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Ms. Randall. Thank you so much, Chairman Hurd, and thank
you to our witnesses for being here today, and a special thank
you to Chairwoman Charles for making the trek all the way from
the Lower Elwha Klallam Tribe on the Olympic Peninsula.
Chairwoman Charles has been a champion when it comes to
preserving the Tribe's language, culture, and exercise of the
Tribe's treaty reserved hunting and fishing rights. I look
forward to hearing more from you about H.R. 2388, which I was
proud to reintroduce this year. That legislation, as Chairman
Hurd mentioned, would take approximately 1,082 acres of land
managed by the National Park Service into trust for the benefit
of the Lower Elwha Klallam Tribe in Washington. Doing so will
protect sacred and cultural lands, continue restoration efforts
for the ecosystem, and help address a decade-long battle that
the Tribe has seen regarding damage done by the two dams on the
Elwha River that have been removed, thanks in large part to the
Tribe's work.
The next bill on the agenda, H.R. 2130, Representative
Johnson's Tribal Trust Land Home Ownership Act, is a bill that
codifies deadlines for the Bureau of Indian Affairs to process
and complete all mortgage packages associated with residential
and business mortgages on Indian land. To ensure compliance
with the established time frames and communication between BIA,
other agencies, and Tribes, the bill establishes a Realty
Ombudsman to report directly to the Secretary. Housing
availability and accessibility have been serious issues in
Indian Country, and it is critical that BIA is working to
ensure mortgages are reviewed and processed in a timely manner.
The next bill is H.R. 2815, introduced by Representative
Begich. This bill would waive certain requirements under the
Alaska Native Claims Settlement Act for the Cape Fox
Corporation, and authorize the conveyance of approximately 180
acres of Federal land within the Tongass National Forest. The
conveyance of this area would allow Cape Fox to consolidate its
land holdings in the area and provide critical access to a
proposed hydropower project.
The last bill on the agenda today is H.R. 3073 from
Representative Maloy to address the lack of a clear legal
framework in Utah to address any civil disputes between non-
tribal entities and the Shivwits Band of Paiutes for Economic
Development, which has created issues for the Tribe pursuing
current and future economic opportunities.
I would be remiss if I didn't mention that this hearing
comes at a time when President Trump recently released his
skinny budget proposal for the upcoming Fiscal Year, which
would gut funding for the Bureau of Indian Affairs, all while
thousands of Federal employees are being fired and agency field
offices are set to close down. These decisions all impact
Indian Country and the effectiveness of legislation this
Subcommittee considers. We need to make sure that Tribes have
the resources that they need and the Federal partners in place
to carry out some of the work being proposed today.
I look forward to hearing more from all the witnesses
today.
Ms. Randall. And with that I yield back.
Mr. Hurd. The gentlewoman yields back, and now I will
recognize Ms. Maloy from Utah for 5 minutes to speak on her
legislation.
Ms. Maloy.
STATEMENT OF THE HON. CELESTE MALOY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
Ms. Maloy. Thank you, Mr. Chairman. I seem to have some
allergies this morning, so I apologize if I interrupt with
coughing, but I appreciate the opportunity to testify today in
support of H.R. 3073, the Shivwits Band of Paiutes
Jurisdictional Clarity Act, which seeks to restore fairness and
provide much-needed certainty to tribal economic development.
Sorry, I am going to take a second.
The legislation addresses an urgent issue created by a
recent decision from the 10th Circuit Court of Appeals which
restricts a Tribe's ability to consent to State court
jurisdiction in contract disputes. The court ruled that when a
Tribe provides a waiver of sovereign immunity that is clear and
valid, Utah State courts lack jurisdiction over cases arising
from that agreement within Indian Country unless a series of
requirements are met. And in some cases those requirements are
impractical, and sometimes unobtainable. These requirements
include congressional authorization, a waiver of sovereign
immunity, tribal court resolution, and other bureaucratic
obstacles that make it nearly impossible for a Tribe to engage
in business agreements that require State court oversight.
The rulings had real-world consequences for the Shivwits
Band of Paiutes in my district, preventing them from moving
forward with valid, vital economic development opportunities
that would allow them to better utilize their land, attract
investment, and create jobs for their community. The Shivwits
Band, I am sorry, I do know how to say it, I am just struggling
today, the Shivwits Band is located in a thriving part of the
State, where economic growth is happening all around them, and
they should be able to participate in that booming economy.
Tribes have the right to consent to State court
jurisdiction. Tribes should have the right to consent to State
court jurisdiction when it benefits their business interests.
The Shivwits Band and other affected Tribes currently face
uncertainty, which has discouraged investment and stalled
progress on long-term development plans. We need to do better
for our Tribes than that.
Tribal leaders in my district have voiced concerns about
this ruling, and emphasized the urgent need for a clear legal
framework that will allow them to move forward with confidence
in their business agreements. Without this critical reform
provided in the bill, the Shivwits Band will continue to face
barriers in leveraging their land for economic growth. H.R.
3073 provides the jurisdictional clarity necessary for the Band
to engage in commercial transactions, attract investors, and
fully participate in the broader economy.
The legislation affirms the authority of the Utah State
courts to resolve civil cases involving the Shivwits Band when
disputes arise on the Band's Indian lands, ensuring that
business agreements can proceed without unnecessary Federal
interference or legal ambiguity. At the same time, the bill
protects the Band's sovereign immunity, ensuring that they are
never subjected to unconsented lawsuits, while still allowing
them to waive immunity selectively in contracts that require
State court jurisdiction.
Importantly, this legislation puts the Shivwits Band on
equal footing with numerous other Tribes who already have the
ability to negotiate leases for extended terms, an essential
component of economic stability and long-term business
partnerships for Tribes. By eliminating the restrictions
imposed by the Lawrence decision, my bill restores the ability
of the Band to utilize their land assets effectively, ensuring
that their Indian lands can be put to the highest and best
benefit of tribal members and their larger community.
I am proud to have the strong support of the Shivwits Band.
They recognize the importance of establishing a clear,
functional legal framework that will provide them with greater
flexibility and certainty as they pursue economic opportunities
on their lands. This bill removes the unnecessary obstacles
standing in their way, providing a fair and practical solution
to a problem that has disrupted their efforts to build a more
prosperous future. And I thank the Band for being here to voice
their support today, and for coming to us seeking a solution to
a problem.
[The prepared statement of Ms. Maloy follows:]
Prepared Statement of the Hon. Celeste Maloy, a Representative in
Congress from the State of Utah
on H.R. 3073
Thank you, Mr. Chairman, I appreciate the opportunity to testify
today in support of my bill, H.R. 3073, the Shivwits Band of Paiutes
Jurisdictional Clarity Act, which seeks to restore fairness and provide
much-needed certainty to tribal economic development.
This legislation addresses an urgent issue created by a recent
decision from the Tenth Circuit Court of Appeals, which severely
restricts a tribe's ability to consent to state court jurisdiction in
contract disputes.
The court ruled that when an Indian tribe provides a waiver of
sovereign immunity that is ``clear and valid,'' Utah state courts lack
jurisdiction over cases arising from that agreement within Indian
Country unless a series of impractical and often unobtainable
requirements are met.
These requirements include congressional authorization, a waiver of
sovereign immunity, tribal court resolutions, and other bureaucratic
obstacles that make it nearly impossible for a tribe to engage in
business agreements requiring state court oversight.
This ruling has had significant, real-world consequences for the
Shivwits Band of Paiutes, preventing them from moving forward with
vital economic development opportunities that would allow them to
better utilize their land, attract investment, and create jobs for
their community.
Tribes should have the right to selectively consent to state court
jurisdiction when it benefits their business interests, but the
Lawrence Decision stripped them of that ability. As a result, the
Shivwits Band and other affected tribes now face uncertainty, which has
discouraged investment and stalled progress on long-term development
plans.
Tribal leaders in my district have voiced deep concerns about this
ruling and emphasized the urgent need for a clear legal framework that
will allow them to move forward with confidence in their business
agreements.
Without this critical reform, the Shivwits Band will continue to
face barriers in leveraging their land for economic growth.
My bill, H.R. 3073, provides the jurisdictional clarity necessary
for the Band to engage in commercial transactions, attract investors,
and fully participate in the broader economy. This legislation affirms
the authority of Utah State courts to resolve civil cases involving the
Shivwits Band when disputes arise on the Band's Indian lands, ensuring
that business agreements can proceed without unnecessary federal
interference or legal ambiguity.
At the same time, the bill protects the Band's sovereign immunity,
ensuring that they are never subjected to unconsented lawsuits while
still allowing them to waive immunity selectively in contracts that
require state court jurisdiction.
Importantly, this legislation puts the Shivwits Band on equal
footing with numerous other tribes who already have the ability to
negotiate leases for extended terms, an essential component of economic
stability and long-term business partnerships.
By eliminating the restrictions imposed by the Lawrence Decision,
my bill restores the ability of the Band to utilize their land assets
effectively, ensuring that their Indian lands can be put to their
highest and best use to benefit tribal members and their community.
I am proud to have the strong support of the Shivwits Band of
Paiutes for this legislation. They recognize the importance of
establishing a clear, functional legal framework that will provide them
with greater flexibility and certainty as they pursue economic
opportunities on their lands.
My bill removes the unnecessary obstacles standing in their way,
providing a fair and practical solution to a problem that has disrupted
their efforts to build a more prosperous future.
Thank you, Mr. Chairman, for your time and consideration. I yield
back.
______
Ms. Maloy. Thank you, Mr. Chairman, for your time and
consideration, and I yield back.
Mr. Hurd. The gentlewoman yields back. At this time I will
recognize Mr. Johnson from South Dakota for 5 minutes to speak
on his legislation.
Mr. Johnson.
STATEMENT OF THE HON. DUSTY JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF SOUTH DAKOTA
Mr. Johnson. I will begin with gratitude. Thank you, Mr.
Chairman, Ranking Member, Committee staff for allowing a
hearing of my bill, the Tribal Trust Homeownership Act.
I get it: home ownership, accessibility, affordability,
these are problems across the country. But I have got to tell
you, it is worse in Indian Country. It is much worse in many
parts of Indian Country. And in Eric Shepherd's pre-filed
testimony he makes it clear that that is certainly true in
South Dakota. He knows it all too well, as someone who has been
in the field working in these issues. There cannot unusually be
three families in a single three-bedroom home, and that creates
overcrowding, and that creates wear and tear, and that creates
yet more problems for home ownership long-term and, of course,
as well as unsafe living conditions.
And this is not just a problem for the Dakota people of the
Sisseton-Wahpeton Oyate. It is a problem for the Dakota and
Lakota people throughout the nine reservations, the nine Tribes
of South Dakota. And of course, Congress, we are not making
good on our trust and treaty obligations related to housing,
and that is one reason that I joined with Senator Thune to
introduce our Tribal Trust Land Homeownership Act.
Any of us who have taken the time to get a mortgage realize
that it is kind of a bureaucratic and administrative pain. But
I have got to tell you, the pain is much more difficult for
Indian people on trust land. On top of the bureaucracy of a
traditional mortgage, you also need sign-off by the Bureau of
Indian Affairs. That pertains to residential, commercial, and
right-of-way mortgages, to name a few. And the BIA handbook
suggests some timelines for that work to be completed, but the
timelines are not always adhered to. That causes a lot of
delays, it causes a lot of confusion for the borrowers, and
also for the lenders, right? For the banks and other financial
institutions that lend the money, they kind of know this is a
pain. And that is not also good to make sure that tribal
members get connected to the capital they need.
I am not suggesting that buying a house has to be a part of
everyone's American dream, but we know that, still,
homeownership is a special part of the American dream for so
many. And the cold, hard reality is that bureaucracy is making
it harder for native peoples to realize that American dream.
And so this bill tries to reduce some of those problems.
It establishes, and I should tell you, with regard to the
problem, the South Dakota Native Homeownership Coalition has
experienced delays not just of 30 days, but in some instances
as many as 365 days, and I think that is worth calling out.
This is not a small problem. This is indeed a major problem.
And so this is an important bill that puts some important rules
of the road in place to make sure that we do better.
I do want to thank Majority Leader Thune for leading this
effort in the Senate. I want to thank Eric Shepherd, who is
here in his capacity as the Vice Chair of the Board of
Directors of the South Dakota Native Home Ownership Coalition.
And I want to thank everybody for this hearing. This is a real
issue, and this bill would make a significant step forward in
addressing it.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Hon. Dusty Johnson, a Representative in
Congress from the State of South Dakota
on H.R. 2130
Chair Hurd, Ranking Member Leger Fernandez, and Members of the
Indian and Insular Affairs Subcommittee:
Thank you for the opportunity to testify before the subcommittee
today. I am here to speak on my bill, the Tribal Trust Land
Homeownership Act.
It is no secret there is a housing availability and affordability
crisis across the country. However, this is especially true in Indian
country where poverty rates and lacking housing infrastructure have
presented unique challenges.
South Dakota, home to nine tribes, knows this all too well. As Eric
Shepherd noted in his testimony, a lack of housing leads to
overcrowding in the available units. It is not uncommon for three or
more families to share a single three-bedroom house--sometimes as many
as 15 individuals share one unit. Overcrowding then leads to higher
wear-and-tear, which can then result in unsafe living conditions.
This challenge is echoed through reservations across South Dakota,
and it is unacceptable. Congress should be working to address housing
insecurity on reservations and uphold our commitment to Indian country.
That is why I joined my colleague Senator Thune to introduce the Tribal
Trust Land Homeownership Act.
Currently, mortgages involving property on tribal trust land must
be reviewed and approved by the Bureau of Indian Affairs (BIA) in order
for the mortgage to be finalized. This pertains to residential,
commercial, and right-of-way mortgages, to name a few. The BIA Mortgage
Handbook establishes timelines for BIA offices to process and approve
these mortgages. However, these timelines are not always adhered to,
causing significant delays, and leaving lenders in the dark.
Native people should not face reduced access to homeownership
opportunities if they live on tribal trust land. Off reservation,
county assessors' records allow title records to be seen within minutes
and for title policies issued by title companies that timeline is
usually within two to four weeks. The South Dakota Native Homeownership
Coalition has experienced delays anywhere from 30 to 365 days to
receive comparable documents from the BIA.
This is an important bill, and I want to thank my partners in this
effort. I want to thank my friend Senator John Thune for leading this
effort in the Senate. Further, Eric Shepherd is here today in his
capacity as the Vice Chair of the Board of Directors of the South
Dakota Native Homeownership Coalition. I am thankful for his advocacy
for the Coalition, for the Sisseton Wahpeton Oyate and for native
homeownership generally.
Thank you again for holding this hearing. I look forward to working
with the committee on passing my bill to improve homeownership outcomes
for natives.
______
Mr. Johnson. With that I would yield.
Mr. Hurd. The gentleman yields back.
I would now ask for unanimous consent that statements for
the record from the Department of the Interior and U.S.
Department of Agriculture be added to the record.
Without objection, so ordered.
Mr. Hurd. The Chair now recognizes Ms. Maloy for 2 minutes
to introduce the witness from her district.
Ms. Maloy.
Ms. Maloy. Mr. Chairman, I have to admit I didn't know I
was going to introduce her today, so I am going to make this
very brief.
We have Chairwoman Gonzales here from the Shivwits Band of
Paiute Indians in southern Utah, in my district. We have spent
some time together and got to know each other, and I know that
she is a passionate advocate for her people. And she is here
because she cares about the Shivwits people who are currently
living in Washington County, and their children and their
grandchildren, and making sure that the Tribe, the Band are
economically viable and culturally viable far into the future.
With that I yield back.
Mr. Hurd. Great. Thank you, Ms. Maloy.
The next witness that we have on our panel is The Honorable
Thomas Harris, who is Vice President of Cape Fox Corporation in
Ketchikan, Alaska.
Mr. Harris, welcome.
The Chair will now recognize Ms. Randall from Washington
for 2 minutes to introduce the witness from her district.
Ms. Randall.
Ms. Randall. Thank you.
And thank you again, Chairwoman Charles, for making the
time to be here and traveling all the way across the country. I
make that flight twice a week. I know what you have undertaken
to be here.
Chairwoman Charles has served on the Lower Elwha Klallam
Tribal Council since 1993, and has served as Chairwoman for a
total of 21 years. As Chairwoman, she is actively involved in
the preservation of the Tribe's culture, language, and exercise
of treaty rights.
This year the Tribe is proud to host the annual Intertribal
Canoe Journeys, celebrating the removal of the two
hydroelectric dams on the Elwha River and the Tribe's effort to
restore the river and salmon fisheries. Chairwoman Charles has
championed these efforts throughout her time in office, and for
this leadership she was honored in 2012 as a conservationist of
the year by the Northwest Chapter of the Society for Ecological
Restoration.
Prior to her service in Elwha tribal government, Chairwoman
Charles was a fire crew leader for the Olympic National Forest.
In this role she was recognized as one of the top woman crew
leaders on the Olympic Peninsula.
Thank you, Chairwoman, for your leadership, for hosting us
and inviting us to join you for Canoe Journey, and I look
forward to your testimony.
Mr. Hurd. The gentlewoman yields. The Chair now recognizes
Mr. Johnson from South Dakota for 2 minutes to introduce the
witness from his district.
Mr. Johnson.
Mr. Johnson. [Speaking native language], Mr. Chairman, my
Dakota is really abysmal, so I hope Mr. Shepherd will forgive
me. But there is a word in Dakota, it is [speaking native
language], which some translate as ``leader,'' but it doesn't
mean the chief or the president or the chairman of a Tribe. It
really, I think, means a spokesman, somebody who brings the
truth of their people and provides that to others. I have got
to tell you; Eric Shepherd is that kind of a spokesman.
His knowledge of housing is not theoretical, it is not
academic. In his work with the Sisseton-Wahpeton Oyate he has
helped to construct almost 100 homes. That is more than 100
families who have had an opportunity to live a better, safer,
more fulfilling life because of that roof over their head.
There are lots of people who can talk, but we have with us
today someone who not only talks as a spokesman, but is also a
doer in helping people realize their dreams.
Sir, your presence is an honor to all of us. Thank you for
being here.
Mr. Hurd. The gentleman yields back. Let's now move into
the testimony portion of our hearing.
Let me remind the witnesses that, under Committee rules,
they must limit their oral statements to 5 minutes, but your
entire statement will appear in the hearing record.
To begin your testimony just press the talk button on the
microphone.
We do use timing lights. When you begin the light will turn
green. When you have 1 minute left the light turns yellow, and
at the end of 5 minutes the light will turn red and I ask you
to please complete your statement.
I will also allow all witnesses on the panel to testify
before member questioning.
The Chair now recognizes The Honorable Tina Gonzales for 5
minutes.
STATEMENT OF THE HON. TINA GONZALES, CHAIRWOMAN, SHIVWITS BAND
OF PAIUTES, IVINS, UTAH
Ms. Gonzales. Thank you. I do appreciate your time and
being able to hear me out. Good morning, Mr. Chair and
distinguished members of the Subcommittee. My name is Tina
Gonzales, and I have the honor to serve as Chairwoman for the
Shivwits Band of Paiutes. I have submitted written testimony
that includes my Tribe's history, our perseverance, and a more
detailed background explanation of the circumstances giving
rise to our need for this legislation, rather than repeat that
written testimony before you today.
I plan to focus my remarks this morning on the Shivwits
Band's vital needs for economic development through long-term
investment with developer partners which can only occur where
private developers have certainty regarding their ability to
access a State court forum to resolve civil disputes arising
under contracts or agreements with the Shivwits Band.
In short, the Shivwits band needs Congress's help to remove
legal and bureaucratic barriers to our economic progress.
My ancestors were part of the Shivwits Band, the several
bands of Paiute Indians that have lived since time immemorial
in an area that once covered more time than 30 million acres
across the present day southern Utah, northern Arizona, and
southern Nevada in the mid-1800s. Settlers arriving in Utah
territory displaced many ancestors from their traditional
lands, which also resulted in limited access to water for my
ancestors to continue their historical farming practices. Loss
of access to food and water sources and being exposed to
unfamiliar diseases resulted in dissemination of this Shivwits
population.
The Shivwits Band was first recognized by the Federal
Government in 1891. When the first reservation was established
in 1916, the Shivwits reservation was expanded to nearly 27,000
acres, with over 1,000 acres being added to the reservation in
1937. Today the Shivwits Band's reservation covers over 28,000
acres in southwestern Utah, near the town of St. George.
The journey to the Shivwits Band's present-day situation
has been difficult. The Shivwits Band's trust relationship with
the United States was terminated in 1954 during the Federal
Government's termination era during which Congress adopted
various laws aimed at terminating Federal obligations to Indian
Tribes. Following termination and before our federally
recognized status was restored, the Shivwits Band continued to
forge ongoing, holding steadfast to our lands and our culture.
Eventually, the Federal Government walked back many of its
termination era policies, and in 1980 Congress passed
legislation restoring federally recognized status to the
Shivwits Band.
Since restoration in 1980, we have continued efforts to
strengthen our Tribe's sovereignty. While restoration has
yielded notable improvements in the quality of life for members
of the Shivwits band, restoration did not bring substantive
economic development to Shivwits band lands. As a result, the
Shivwits Band has remained dedicated to confronting economic
challenges, continuously searching for economic development
opportunities that will allow the Shivwits Band to supply
governmental services and employment options to Shivwits Band
members, and to become independent from reliance on Federal
funding.
The Shivwits Band now seeks to pursue new economic
development opportunities created by rapid growth in
southwestern Utah, but our ability to put the Tribe's lands to
their highest and best use is hindered by the lack of a clear
legal framework that allows for resolution of civil disputes on
our tribal lands and the ability to offer longer lease terms
comparable to the standard lease terms for non-Indian lands.
Without changes, the Shivwits Band will be unable to take
advantage of current and future development opportunities.
H.R. 3073 provides the technical corrections necessary to
affirm Utah State court jurisdiction over civil cases involving
Shivwits Band that occur on our lands. Civil disputes will have
a clear legal structure to be resolved in a Utah State court
forum, where the Tribe has agreed to the State court as a
forum. This removes a huge obstacle to economic development
partnerships between the Shivwits Band and private-sector
investors.
The legislation also ensures that the Shivwits Band's
sovereign immunity remains intact, unless explicitly waived by
the Tribe. This means that the Shivwits Band remains immune
from unconsented lawsuits, while having the option to consent
to State court jurisdiction in individual contracts with
private developers.
The legislation also confirms that Federal court is a forum
option for civil suits involving the Shivwits Band, affirming
the Shivwits Band's ability to consent to State court
jurisdiction. And an individual's contracts and agreements are
essential to ensuring that the Shivwits Band can engage outside
businesses for long-term economic development, benefiting not
only the Shivwits Band community, but local Utah communities as
well.
Passage of H.R. 3073 would be championing legislation to
assist the Shivwits Band in resolving barriers to economic
development so that the Shivwits Band and the surrounding
community can enjoy the benefits of long-term stability and
financial security.
Thank you again to the Subcommittee for holding this
hearing and for your consideration of H.R. 3073, and to
Congresswoman Maloy for her tireless work on behalf of the
Shivwits Band.
I am happy to answer any questions that you may have.
[The prepared statement of Ms. Gonzales follows:]
Prepared Statement of Chairwoman Tina Gonzales, Shivwits Band of
Paiutes
on H.R. 3073
Chairman Hurd and distinguished Members of the House Subcommittee
on Indian and Insular Affairs, my name is Tina Gonzales, and I have the
honor to serve as Chairwoman of the Shivwits Band of Paiutes
(``Shivwits Band'' or ``Shivwits''). Thank you for the opportunity to
provide testimony on H.R. 3073, the Shivwits Band of Paiutes
Jurisdictional Clarity Act, and thank you to Congresswoman Maloy for
her dedication to representing the interests of Native American tribes,
and in particular for her notable efforts on H.R. 3073.
1. History of the Shivwits Band of Paiutes
The Shivwits Band is one of several groups of Paiute Indians that
have lived since time immemorial in an area once encompassing more than
30 million acres across present-day southern Utah, northern Arizona,
and southern Nevada. The Shivwits were closely tied to their awe--
inspiring homelands, living close to water and farming the lands along
waterways to cultivate numerous varieties of crops for sustenance and
medicinal purposes by implementing irrigation practices.
During the mid-19th century, settlers arrived in the Utah territory
and settled on lands traditionally inhabited by Shivwits. Loss of
access to food and water sources and being exposed to unfamiliar
diseases resulted in decimation of the Shivwits population. As their
lands were taken and their traditional sources of food were depleted,
Paiute bands like the Shivwits became progressively more dependent on
the federal government for survival.
By the late 1880s, settlers petitioned the federal government to
relocate Shivwits to a new home on the Santa Clara River, to free up
more lands for ranching. The Shivwits Band was first recognized by the
federal government in 1891, when the first reservation was established
for the ``Shebit tribe of Indians in Washington County, Utah.''
Unfortunately, however, the reservation did not include water rights,
so the Shivwits Band was forced to abandon its historical farming
practices and were left destitute with little resources to survive.
In 1916, President Woodrow Wilson ordered expansion of the Shivwits
reservation to 26,880 acres. Congress added an additional 1,280 acres
to the reservation in 1937. In 1935, the Shivwits Band voted to accept
the Indian Reorganization Act of 1934, and in 1940, the Shivwits Band
established its federally approved Constitution and Bylaws. However,
changes in federal policies toward Indian tribes proved devastating to
the Shivwits Band's efforts to reestablish itself.
2. Federal Termination Era (1953-1968)
Post-World War II, the federal government's policy toward Indian
tribes shifted to one of termination, as Congress adopted various laws
aimed at terminating federal obligations to Indian tribes. Well over
100 tribes, bands, and rancherias were terminated through Congressional
enactments during the Termination Era.
The Paiute bands of southern Utah, including Shivwits, soon fell
within the crosshairs of Termination Era policies. In January 1954,
Paiute leaders received copies of S. 2670, the termination bill
targeting Shivwits and other Paiute bands. By letters dated February 2,
1954, Paiute leaders were informed that Congressional hearings on S.
2670 would be held on February 15, 1954, in Washington D.C., and that
Paiute leaders could travel to attend these hearings, ``provided that
the particular groups concerned have ample available tribal funds to
cover the expenses of such a trip. There are no federal funds available
for such travel expenses nor for advances to delegates who run out of
funds while in Washington.'' Unsurprisingly, the Shivwits Band lacked
funds for travel to Washington, D.C. to advocate against its
termination. The legislation sped through Congress, and on September 1,
1954, President Eisenhower signed Public Law 762, thereby terminating
the federal government's trust relationship with the Paiute bands,
including Shivwits.
Despite termination, the Shivwits Band forged onward with its
trademark resilience, continuing to perform self-governing functions by
electing Shivwits Band representatives and holding meetings of its
general membership. Although termination had devastating effects on the
Shivwits economy, the Shivwits Band held steadfast to their lands and
culture. Remarkably, unlike other Paiute bands, the Shivwits Band
managed to retain ownership of its lands, leasing those lands to local
ranchers.
In short, the termination policy did not have the effect that its
proponents predicted in regards to integrating Native Americans into
``mainstream'' America. Huge swaths of Indian lands were lost.
Socioeconomic data from that time indicates that terminated Indians
continued to have higher unemployment rates, lower incomes, and lower
levels of educational attainment than surrounding non-Indian
communities, but without federal programs and services to aid in
responding to these needs. Congress eventually acknowledged that the
policies of the Termination Era were a mistake, and ultimately restored
terminated tribes, including Shivwits, to federal status, by passage of
individualized ``restoration'' legislation.
3. Restoration of the Shivwits Band's Federally Recognized Status
In 1979, S. 1273 was introduced in the Senate, with aims to restore
federal status and services to Shivwits and the other Paiute bands. On
November 8, 1979, before the Senate Select Committee on Indian Affairs,
Utah Congressman Dan Marriott explained his support of restoration of
Shivwits and the other Paiute bands:
As I see it, for Congress to terminate the Paiute Bands was the
equivalent of giving a lame, jobless man and his family a new
house, then looking the other way when the mortgage came due.
It simply wasn't fair. It wasn't right. This Committee and this
Congress has the power and the opportunity to restore to the
Paiute people of Utah benefits and a measure of dignity which
were wrongfully taken from them 25 years ago. I urge that we do
so by swiftly enacting the legislation now before you.
On April 3, 1980, the Shivwits Band was restored to federally
recognized status when Congress passed the Paiute Restoration Act,
Public Law No. 96-227, reestablishing the trust relationship between
the federal government and the Paiute bands, including Shivwits. As of
that date, and since that time, Shivwits has been a federally
recognized Tribe. Shivwits was restored to its status as a federally
recognized Tribe that existed before termination. Today, Shivwits
cooperates with four other restored Bands of Paiutes on some common
governance issues through an inter-Tribal constitution. Notably, the
joint governance cooperation that Shivwit chose after being restored by
Congress does not diminish the Band's status as a federally recognized,
restored Tribe. The use of the term Band or Pueblo or Rancheria, etc.
does not denote a lesser status. The Shivwits Band of Paiutes is a
federally recognized Tribe based on Congress' Restoration Act in 1980.
4. Roadblocks to Shivwits Economic Development
Since its restoration in 1980, the Shivwits Band has continued its
dedicated efforts to strengthen its sovereignty. While restoration has
yielded notable improvements in the quality of life for members of the
Shivwits Band, restoration did not bring substantive economic
development to Shivwits Band lands, without which true self-
determination and self-sufficiency remain unattainable. As a result,
the Shivwits Band has remained dedicated to confronting economic
challenges, continuously searching for economic development
opportunities that will allow the Shivwits Band to supply governmental
services and employment options to Shivwits members, and to become
independent from reliance on federal funding, which is very limited and
is generally tied to implementation of federally conceived programming.
The story of the Shivwits Band is one of determined resilience in
the face of relentless challenges and broken promises. After years of
searching for suitable business investments, recent development
opportunities on the Shivwits Reservation has opened the door for
sustainable economic expansion for the Shivwits Band. Unfortunately,
however, as discussed below, a 2022 decision by the Tenth Circuit Court
of Appeals has presented a roadblock to these opportunities, and has
stunted the Shivwits Band's ability to engage in economic development
and self-determination.
The decision in question, Ute Indian Tribe of the Uintah and Ouray
Reservation v. Lawrence, 22 F.4th 892 (10th Cir. 2022) (hereinafter,
``Lawrence''), holds that, even where an Indian tribe has provided a
clear and valid waiver of its sovereign immunity in an agreement, Utah
state courts lack subject matter jurisdiction to hear cases arising
under that agreement and within Indian country, unless the requirements
of 25 U.S.C. Sec. Sec. 1322 and 1326 are met. As discussed below, 25
U.S.C. Sec. Sec. 1322 and 1326 derive from Public Law 280, an enactment
that was part of the suite of harmful Termination Era legislation aimed
at ending federal obligations to Indian tribes. The Lawrence case's
holding, based upon a flawed interpretation and application of 25
U.S.C. Sec. Sec. 1322 and 1326, along with language in the Paiute
Restoration Act, has resulted in outside developers being unwilling to
engage the Shivwits Band for long-term economic development activities,
because non-Indian businesses and entities are not guaranteed a state
court forum for resolving disputes arising under contracts with the
Shivwits Band.
A. Public Law 280
Public Law 280, or ``PL 280,'' is the common reference to the Act
of Aug. 15, 1953, 67 Stat. 588, which is codified in part at 25 U.S.C.
Sec. Sec. 1321-1326. As mentioned above, Congress passed PL 280 during
the Termination Era. PL 280 controversially transferred legal
jurisdiction from the federal government to state governments in
certain states, which altered previous longstanding dynamics of legal
authority between federal, state, and tribal governments. Before PL
280, the federal government and tribes shared jurisdiction over almost
all civil and criminal matters involving Indians in Indian country, and
states had no jurisdiction in Indian country. By PL 280, Congress
mandated that six (6) states (CA, MN, NE, OR, WI, and AK)--referred to
as the ``mandatory'' PL 280 states--had extensive criminal and civil
jurisdiction over Indian country within those states.
Separately, PL 280 also permitted some other states to acquire
jurisdiction over Indian country at their option--called the
``optional'' PL 280 states. Utah is one of those ``optional'' PL 280
states. When passed in 1953, PL 280 was written to provide that
``optional'' states could legislate to accept some degree of
jurisdiction over Indian country, without the consent of the Indian
tribes within that state. However, that consent requirement (or lack
thereof) changed in 1968 when Congress amended PL 280 to require tribal
consent to state jurisdiction (manifested by a special election) before
a state could opt-in to assume jurisdiction over a tribe's Indian
country under PL 280. The PL 280 provisions that permit states to
acquire criminal and civil jurisdiction over Indian country at the
state's option are codified at 25 U.S.C. Sec. Sec. 1321, 1322. The
provision requiring a tribe's consent to state jurisdiction by special
election is codified at 25 U.S.C. Sec. 1326.
As a result of the 1968 amendments, any ``optional'' PL 280 state's
passage of legislation after 1968, in which the state purports to
acquire jurisdiction over Indian country within that state under 25
U.S.C. Sec. Sec. 1321, 1322, is only effective where a tribe holds a
special election consenting to the state's jurisdiction over that
tribe's Indian country under 25 U.S.C. Sec. 1326. The State of Utah
passed its legislation in 1971, making Utah the only ``optional'' PL
280 state that passed legislation under 25 U.S.C. Sec. Sec. 1321 and
1322, acquiring jurisdiction over Indian country after the 1968
amendments to PL 280. As a result, the State of Utah can only exercise
global civil and criminal jurisdiction over Indian country under PL 280
where Utah tribes hold a special election under 25 U.S.C. Sec. 1326 and
vote to consent to Utah state jurisdiction over the tribe's Indian
country.
B. Paiute Restoration Act and PL 280
Several post-1968 federal statutes affording restoration or federal
recognition to individual tribes specified that the state must only
exercise civil and criminal jurisdiction as if that state had assumed
such jurisdiction with the consent of the tribe under PL 280 as amended
in 1968. As discussed below, the Paiute Restoration Act is one such
federal statute.
Relevant here, Section 7(b) of the Paiute Restoration Act provides
that the ``State of Utah shall exercise civil and criminal jurisdiction
with respect to the reservation and persons on the reservation as if it
had assumed jurisdiction pursuant to [P.L. 280 and its 1968
amendments], and pursuant to sections 63-36-9 through 63-36-21 of the
Utah State Code.'' (emphasis added.) Section 7(b) is written to provide
that the State of Utah shall only exercise civil and criminal
jurisdiction over the Paiute bands pursuant to PL 280's tribal consent
requirements and Utah law passed in 1971, which accepts jurisdiction
over Indian country in Utah only where the tribe in question has held a
special election to confer such jurisdiction as required by PL 280. The
Paiute Restoration Act's provision on jurisdiction places the Shivwits
Band at risk of a fate similar to that in Lawrence. Under Lawrence,
Section 7(b)'s language acts as a jurisdictional limitation, given the
provision requiring compliance with PL 280 and its 1968 amendments.
C. Lawrence Case
In Lawrence, a Utah tribe waived its sovereign immunity for suits
arising from a contract with a non-Indian consultant (``consultant''),
which contract was the subject of the underlying lawsuit. The tribe
also expressly waived any arguments regarding exhaustion of tribal
court remedies and agreed to submit to the jurisdiction of any court of
competent jurisdiction. Despite these waivers, once disputes arose
under the contract in question, the tribe fought the consultant's
efforts to have the disputes heard in Utah state court. Notwithstanding
the tribe's immunity waiver and contractual consent to state court
jurisdiction, the Tenth Circuit Court of Appeals held that Utah state
courts could not exercise civil jurisdiction over this specific
contractual dispute absent tribal consent to general, global civil
jurisdiction under 25 U.S.C. Sec. 1322(a), which general consent must
be provided through a special election conducted under 25 U.S.C.
Sec. 1326.
Lawrence rejected valid and reasoned arguments that special
elections under 25 U.S.C. Sec. 1326 are only required where a tribe
wishes to permanently authorize the state to assume global jurisdiction
over the tribe's Indian country.
Contrary to the ruling in Lawrence, the procedures at 25 U.S.C.
Sec. Sec. 1322, 1326 for assuming permanent general civil jurisdiction
should not foreclose a tribe's ability to selectively consent to state
court jurisdiction for disputes arising under individual contracts and
agreements. Tribes like the Shivwits Band should be able to selectively
consent to state court jurisdiction in contracts, by agreeing to waive
their sovereign immunity for suits arising under that contract and
consenting to state court as a court of competent jurisdiction as to
specific legal actions. The Lawrence decision has robbed tribes,
including the Shivwits Band, of their ability to so selectively consent
to state court jurisdiction, resulting in uncertainty for outside
investors looking to engage the Shivwits Band in economic development
and other business opportunities.
5. Need for H.R. 3073
As a result of Lawrence, because non-Indian businesses and entities
are not guaranteed a state court forum for resolving disputes arising
under contracts with the Shivwits Band, those outside businesses and
entities are hesitant to engage the Shivwits Band in business
relationships. Recently, the Shivwits Band was presented with a
promising business opportunity to develop its lands; however, without
assurances that there will be a forum available in which to resolve
disputes, the Shivwits Band is concerned that this opportunity, and any
future opportunities, will not be realized. The Shivwits Band's self-
determination and independence depends on a federal legislative fix
that allows the Shivwits Band to selectively consent to state court
jurisdiction in individual agreements, rather than holding a special
election to adopt a global and permanent consent to state court
jurisdiction over the Shivwits Band's affairs.
H.R. 3073 is the federal legislation that the Shivwits Band needs
to address the problem created by Lawrence. Affirming the Shivwits
Band's ability to consent to state court jurisdiction in individual
contracts and agreements is essential to ensuring that the Shivwits
Band can engage outside businesses for long-term economic development
benefiting not only the Shivwits Band's community, but local Utah
communities as well. By passage of H.R. 3073, you would be championing
legislation to assist the Shivwits Band in resolving the issue created
by Lawrence, so that the Shivwits Band and surrounding community can
enjoy the benefits of economic development, stability, and financial
security.
Thank you again to this Subcommittee for holding this hearing and
for your consideration of H.R. 3073, and to Congresswoman Maloy for her
tireless work on behalf of the Shivwits Band. I am happy to answer any
questions that you may have.
______
Questions Submitted for the Record to Hon. Tina Gonzales, Chairwoman,
Shivwits Band of Paiutes
Questions Submitted by Representative Westerman
Question 1. As discussed in the hearing, the Shivwits Band was
impacted by the Lawrence Case ruling. Prior to the ruling in Lawrence
how did the Shivwits Band operate with outside investors?
Answer. Between the passage of the Paiute Restoration Act in 1980
up until issuance of the Lawrence decision in January 2022, the
Shivwits Band has remained dedicated to the pursuit of economic
development opportunities that meet several criteria, including (a)
involvement of established investors or third-party developers that
view the relationship with the Shivwits Band as one between long-term
development partners with a strategic alliance, rather than as a
marriage of necessity or a means to a development end; (b) proposed
uses that are likely to remain viable over a prolonged period of time;
(c) ideas that would put the Shivwits Band's 28,000-acre Reservation to
its highest and best use; and (d) projects that coincide with the
Shivwits Band's values and long-term goals for success. The Shivwits
Band was often approached by disreputable or inexperienced devisers of
short-term projects, with terms that failed to deliver real,
sustainable economic opportunity to the Shivwits Band and its
membership. In the lead-up to the Lawrence decision, there were
admittedly few opportunities that fulfilled the Shivwits Band's
standards, given the remote location of the Shivwits Band Reservation
and the historically limited surrounding development opportunities in
the area.
However, in a remarkable turnaround over the last few years,
southern Utah has experienced growth at unprecedented rates, which has
brought inventive and exciting commercial development opportunities to
the area, led by reputable and established developers. Unfortunately,
while this development boom has resulted in an economic upswing in the
surrounding area, the Lawrence decision has made outside investors and
developers reticent to engage the Shivwits Band for similar projects on
Shivwits Band lands.
The Shivwits Band wishes to engage legitimate third-party
developer-investors with a proven track record of successful projects
and relationships, so that the Shivwits Band may participate in the
ongoing economic expansion of the surrounding area, while those
opportunities remain available. Understandably, developer-investors of
this caliber require certainty that a judicial forum is available to
resolve any disputes that may arise out of a transactional relationship
with the Shivwits Band. Without that certainty, developer-investors are
unable to obtain project financing and cannot enter into enforceable
agreements with the Shivwits Band, and therefore cannot engage the
Shivwits Band as a long-term development partner. H.R. 3073 is intended
to level the playing field, and place the Shivwits Band on equal
footing with surrounding landowners, so that the Shivwits Band may also
engage in meaningful development and capitalize on the area's economic
growth.
Question 2. As the law currently stands, the only way for the
Shivwits Band to consent to state court jurisdiction is if the tribe
holds a special election and adopts a universal consent to that end.
2a) How does this process harm the tribe's sovereign immunity?
Answer. A special election to adopt universal consent to state
court jurisdiction would not impact the Shivwits Band's sovereign
immunity from unconsented suit. A waiver of the Shivwits Band's
sovereign immunity would still be required in order to effectuate a
lawsuit against the Shivwits Band, as tribal sovereign immunity waivers
must be expressly given. See Three Affiliated Tribes of the Ft.
Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 892
(1986).
However, although the Lawrence decision does suggest that a
Secretarial election under 25 U.S.C.Sec. 1326 would ensure that state
courts can exercise jurisdiction over civil causes of action to which
the Shivwits Band is a party, in reality, it remains an open question
whether a Secretarial election could actually secure this result. One
of the more perplexing aspects of the Lawrence decision is the lack of
acknowledgement that the civil jurisdiction provision of P.L. 280
allows states to hear ``civil causes of action between Indians or to
which Indians are parties.'' 28 U.S.C. Sec. 1360(a) (emphasis added);
see also 25 U.S.C. Sec. 1322. This language refers to suits involving
individual Indians only, and does not mention suits against tribes. See
Bryan v. Itasca County, 426 U.S. 373, 389 (1976) (observing that
``there is notably absent'' from P.L. 280 ``any conferral of state
jurisdiction over tribes themselves''); Parker Drilling Co. v.
Metlakatla Indian Comm., 451 F. Supp. 1127, 1139 (quoting Bryan); Meier
v. Sac & Fox Indian Tribe of Mississippi, 476 N.W.2d 61, 63 (Iowa 1991)
(providing that ``the language of Public Law 280 . . . clearly confers
narrow civil jurisdiction over individual Native Americans, and not the
Tribe per se''); Long v. Chemehuevi Indian Reservation, 115 Cal.App.3d
853 (Cal.App.4th Dist. 1981) (``No case has been cited to us, and we
have found none, which concludes or even suggests, that [28 U.S.C.
Sec. 1360] conferred on California jurisdiction over the Indian tribes,
as contrasted with individual Indian members of the tribes.'').
Because the provisions of P.L. 280 are intended to confer state
court jurisdiction over civil causes of action involving individual
Indians, that is the type of jurisdiction that could be invoked
following a Secretarial election under 25 U.S.C. Sec. 1326. As a
result, even if the Shivwits Band did hold a Secretarial election
consenting to state court jurisdiction under P.L. 280, it remains a
question whether a state court could permissibly exercise jurisdiction
over civil causes of action involving the Shivwits Band as a tribe. As
any third-party developer or investor would be engaging with the
Shivwits Band in regards to any development project, those developers
require certainty as to the availability of a forum in which to resolve
disputes that arise during the course of the development project.
Although the Lawrence decision suggests that a Secretarial election is
the method to secure such certainty, it remains doubtful whether a
Secretarial election under P.L. 280 would actually deliver this result,
given that P.L. 280 confers jurisdiction on states in ``civil causes of
action between Indians or to which Indians are parties,'' 28 U.S.C.
Sec. 1360(a) (emphasis added), and does not relate to state court
subject matter jurisdiction over cases to which the tribe itself is a
party.
However, despite the above, one clear takeaway from the Lawrence
decision is that some form of Congressional authorization is required
before state courts may permissibly exercise jurisdiction over civil
causes of action involving the Shivwits Band. Lawrence suggests that
P.L. 280's Secretarial election provisions could be the source of that
Congressional authorization. But, given the limitations on P.L. 280's
applicability (i.e., its application only to suits involving individual
Indians), the Secretarial election provisions of P.L. 280 actually do
not definitively supply the needed Congressional authorization for
state court exercise of jurisdiction over suits involving the Shivwits
Band as required under Lawrence. H.R. 3073 is intended to supply that
certain and clear Congressional authorization, as required under
Lawrence, for state courts' exercise of jurisdiction over civil causes
of action involving the Shivwits Band, where the Shivwits Band consents
to such jurisdiction by contract or agreement and provides a valid
waiver of its sovereign immunity from unconsented suit.
2b) How does H.R. 3073 circumvent that?
Answer. As mentioned above, the Lawrence decision's key takeaway is
that some form of Congressional authorization is required before a
state court can exercise subject matter jurisdiction over civil causes
of action involving an Indian tribe. The Lawrence court held that P.L.
280 could be the source of such Congressional authorization, where the
tribe has held a Secretarial election under 25 U.S.C. Sec. 1326 and
voted to approve global consent to state court jurisdiction. However,
as mentioned above, Lawrence does not address the fact that P.L. 280
applies only to ``civil causes of action between Indians or to which
Indians are parties,'' 28 U.S.C. Sec. 1360(a), rather than to tribal
governments.
H.R. 3073 therefore does not circumvent the Lawrence decision, but
instead carries out Lawrence's holding that some form of Congressional
authorization is required before a state court can exercise subject
matter jurisdiction over civil causes of action involving the Shivwits
Band, where the Shivwits Band has agreed by contract to subject itself
to state court jurisdiction. H.R. 3073 supplies the Congressional
authorization of state court subject matter jurisdiction over civil
causes of action involving the Shivwits Band, as required by Lawrence.
______
Mr. Hurd. Thank you, Chairwoman Gonzales, for your
testimony.
Now I will recognize Mr. Begich from Alaska for 5 minutes
to speak on his legislation, and also to introduce the witness
from his district.
Mr. Begich.
Mr. Begich. Thank you, Mr. Chairman. I am especially
pleased to welcome our next witness, The Honorable Mr. Thomas
Harris, Vice President of the Cape Fox Corporation and a proud
Alaskan from Saxman.
As a constituent and a community leader, Mr. Harris brings
invaluable insight into the long-standing land entitlement
challenges faced by Cape Fox. I appreciate his commitment to
ensuring southeast Alaska's native corporations receive fair
and final treatment under ANCSA, and I thank him for being here
today to testify in support of this important legislation.
Welcome, Mr. Harris.
STATEMENT OF THE HON. NICK BEGICH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALASKA
Mr. Begich. And just in speaking about my bill, the Cape
Fox Land Entitlement Finalization Act of 2025, or H.R. 2815, I
wanted to put some things in the record.
Land is at the heart of Alaska's future. Our ability to
develop resources, build infrastructure, grow communities, and
generate local opportunity all starts with access to land.
Unfortunately, land exchanges, selections, and conveyances in
Alaska have historically been fraught with red tape, delays,
and Federal constraints. Many Alaska Native corporations were
saddled with unusable or economically stranded parcels due to
topography, regulatory overlays, or proximity restrictions.
That is why legislation like H.R. 2815 is so important. It cuts
through bureaucratic barriers to correct long-standing
inequities and unlock real potential for economic development
in our communities in Alaska.
Cape Fox Corporation, representing the Alaska native
village of Saxman, is a Southeast Alaska village corporation
still awaiting full satisfaction of its ANCSA entitlement. This
bill authorizes a land exchange with the U.S. Forest Service
for approximately 180 acres that will connect two existing Cape
Fox parcels, land that is contiguous, strategic, and
economically useful. Cape Fox was uniquely burdened by a
restriction prohibiting selections within six miles of
Ketchikan, limiting its options to steep, rocky, or isolated
lands. This exchange finally remedies that disparity and gives
Cape Fox the opportunity other southeast village corporations
have already received.
The land will facilitate development of a transportation
and power corridor, improving access between Mahoney Lake and
the Beaver Falls power grid. That connection is crucial to Cape
Fox's plans for a renewable hydropower project, and will
support winter access to tourism facilities and subsistence
areas. Beyond energy, this access corridor opens the door to
expanded tourism, marine services, and local job creation,
sectors vital to Ketchikan and southeast Alaska as a whole.
Letters of support from local governments, utilities, and
businesses reflect a strong consensus that this land exchange
is in the public interest.
This bill honors the original promise of ANCSA: land in
exchange for extinguished claims. By ensuring Cape Fox can
actually use and benefit from its settlement lands, it advances
self-determination and economic opportunity in a way that is
consistent with both the law and the conservative principle of
empowering local communities. H.R. 2815 is not about expanding
government. It is about finishing what Congress started over 50
years ago under ANCSA, and finally delivering on a promise made
to the people of Saxman. It is a common-sense, locally-
supported solution that promotes development, respects Alaska's
unique geography, and empowers Alaska native corporations to
thrive on their own terms.
I urge my colleagues to support this long-overdue
legislation and support self-determination for the native
people of southeast Alaska.
[The prepared statement of Mr. Begich follows:]
Prepared Statement of the Hon. Nick Begich, a Representative in
Congress from the State of Alaska
on H.R. 2815
Talking Points for Congressman Begich--Cape Fox Land Entitlement
Finalization Act of 2025 (H.R. 2815)
Setting the Stage: Why Land Matters in Alaska
Land is at the heart of Alaska's future--our ability to
develop resources, build infrastructure, grow communities, and generate
local opportunity all starts with access to land.
Unfortunately, land exchanges, selections, and conveyances
in Alaska have historically been fraught with red tape, delays, and
federal constraints. Many Alaska Native Corporations were saddled with
unusable or economically stranded parcels due to topography, regulatory
overlays, or proximity restrictions.
That's why legislation like H.R. 2815 is so important: it
cuts through bureaucratic barriers to correct longstanding inequities
and unlock real potential for economic development in our communities.
Key Points on H.R. 2815
1. Finalizing a Long-Delayed Entitlement:
Cape Fox Corporation, representing the Alaska Native
village of Saxman, is the last Southeast Alaska village corporation
still awaiting full satisfaction of its ANCSA entitlement.
This bill authorizes a land exchange with the U.S. Forest
Service for approximately 180 acres that will connect two existing Cape
Fox parcels--land that is contiguous, strategic, and economically
useful.
2. Fixing a Unique Inequity:
Cape Fox was uniquely burdened by a restriction
prohibiting selections within six miles of Ketchikan--limiting its
options to steep, rocky, or isolated lands.
This exchange finally remedies that disparity and gives
Cape Fox the opportunity other Southeast village corporations have
already received.
3. Infrastructure and Energy Benefits:
The land will facilitate development of a transportation
and power corridor, improving access between Mahoney Lake and the
Beaver Falls Power Grid.
That connection is crucial to Cape Fox's plans for a
renewable hydropower project and will support winter access to tourism
facilities and subsistence areas.
4. Supporting Local Economic Growth:
Beyond energy, this access corridor opens the door to
expanded tourism, marine services, and local job creation--sectors
vital to Ketchikan and Southeast Alaska.
Letters of support from local governments, utilities, and
businesses reflect a strong consensus that this land exchange is in the
public interest.
5. Respecting Tribal Sovereignty and ANCSA Intent:
This bill honors the original promise of ANCSA--land in
exchange for extinguished claims--by ensuring Cape Fox can actually use
and benefit from its settlement lands.
It advances self-determination and economic opportunity in
a way that's consistent with both the law and the conservative
principle of empowering local communities.
6. Closing Points
H.R. 2815 is not about expanding government--it's about
finishing what Congress started over 50 years ago under ANCSA, and
finally delivering on a promise made to the people of Saxman.
It's a commonsense, locally supported solution that
promotes development, respects Alaska's unique geography, and empowers
an Alaska Native Corporation to thrive on its own terms.
I urge my colleagues to support this long-overdue
legislation and help unlock new opportunity for Southeast Alaska.
______
Mr. Begich. And with that I yield back.
Mr. Hurd. The gentleman yields. The Chair now recognizes
The Honorable Thomas Harris for 5 minutes.
Vice President Harris.
STATEMENT OF THE HON. THOMAS HARRIS, VICE PRESIDENT, CAPE FOX
CORPORATION, KETCHIKAN, ALASKA
Mr. Harris. [Speaking Native language.] Thank you so much,
Chairman and Ranking Member Leger Fernandez. My name is Tom
Harris, and I have the honor to serve as the Vice President of
Cape Fox Corporation. Thank you for scheduling this important
legislative hearing to consider H.R. 2815, the Cape Fox Land
Entitlement Finalization Act of 2025.
First I would like to thank our representative, Nick
Begich, from my home State of Alaska and his support for
introducing the bill.
This bill has received strong support at home, and is
identical to the bill the Senate passed last Congress with
bipartisan support and unanimous consent. I am encouraged and
optimistic that this Congress can get this much-needed bill
passed.
I also want to thank Committee staff, Mr. Ken Degenfelder
and his team, for working with us to get this bill ready.
This bill provides a fair and equitable treatment for the
Cape Fox Corporation's land entitlement under the Alaska Native
Claims Settlement Act, commonly called ANCSA, under section 14
of that, conveyances to villages and regional corporations.
Cape Fox is the only village corporation in the 13 southeast
Alaska villages that has not completed its ANCSA settlement
after 51 years. We are the last ones since the passage of ANCSA
in December 18, 1971.
One of the main reasons this settlement has taken so long
is that the Bureau of Land Management required the Corporation
to include as its selection acreage on a rocky mountain top
with zero economic value, zero access, zero safe environmental
access, and it is not adjacent to any other corporation lands.
It would be landlocked, effectively. BLM requires legislation
to deviate from its interpretation of ANCSA's conveyance
requirements.
For those who have not traveled to the village of Saxman,
home of the Cape Fox Corporation, we are nestled between the
remote, mountainous expanse of Revillagigedo Island and the
Tongass Narrows, with a handful of islands scattered beyond.
The city of Ketchikan hems us in to the north and to the south
the Annette Island Indian Reservation, belonging to the
Metlakatla Indian Community. To further complicate matters,
ANCSA restricted us from making any selections within six miles
of the boundary of the City of Ketchikan, therefore severely
limiting our choices both internally and externally. All other
Cape Fox selected lands are outside that six-mile designation.
However, this bill will rectify the situation and allow for
the conveyance of 180 acres of tract in the Tongass National
Forest under ANCSA. It will provide an access corridor between
two existing Cape Fox tracks, effectively meeting the
congressional requirement that our selections be compact and
contiguous.
In addition to this, the conveyance will allow for access
to land critical to sustaining the grid in the community. This
grid, as many know, is aged and it is over-stressed with the
advent of 1.7 million tourists a year visiting the area. So we
are anxious to have that grid available and sustained for the
benefit of the entire community not as a competing interest,
but as a completing interest.
We also wish to have access to lands for subsistence
hunting, fishing, gathering, and management, among other
economic development opportunities.
[Speaking Native language.] Thank you again for allowing
us, and I look forward to answering any questions you may have.
[The prepared statement of Mr. Harris follows:]
Prepared Statement of Hon. Thomas Harris, Vice President,
Cape Fox Corporation
on H.R. 2815
Dear Chairman Hurd and Ranking Member Fernandez:
Thank you for scheduling this very important legislative hearing to
consider H.R. 2815, the Cape Fox Land Entitlement Finalization Act of
2025. First, I would like to thank Representative Nick Begich from our
home state of Alaska for his support in introducing this bill and
moving it forward through the process. This bill has also received
strong local support. By background, this identical bill passed the
U.S. Senate last Congress with bipartisan support and by unanimous
consent. Last Congress, we simply ran out of time to get this bill to
the President's desk, but I am optimistic that we can finally get this
much-needed bill passed in this Congress. I also want to thank
Committee staff, Mr. Ken Degenfelder and his team, for working with us
to get this bill ready.
This bill provides fair and equitable treatment for Cape Fox
Corporation's land entitlement under the Alaskan Native Claims
Settlement Act (ANCSA) Section 14, ``Conveyances to Village and
Regional Corporations.'' Cape Fox Corporation is the only village
corporation of the 13 SE Alaska Villages that has not completed its
ANCSA settlement. We are the last ones after 50 years since the passage
in 1971. One of the main reasons this settlement has taken so long is
that the Bureau of Land Management required the Village to include
acreage on a rocky mountaintop with zero economic value and not
adjacent to any other Cape Fox ANCSA lands. The BLM requires
legislation to deviate from its interpretation of ANCSA conveyance
requirements.
For those who have not traveled to the Village of Saxman, home of
Cape Fox Corporation, we are nestled between the remote, mountainous
expanse of Revillagigedo Island and the Tongass Narrows, with a handful
of islands scattered beyond. Ketchikan hems us to the north and is
further hemmed in by the Annette Island Indian Reservation, belonging
to the Metlakatla Indian Community, to the south. To further complicate
matters, the ANCSA restricted us from making selections within six
miles of the boundary of the city of Ketchikan, thus, our choices were
significantly limited. All other Cape Fox selected lands are outside of
the
6-mile designation.
However, this bill will rectify the situation and allow for the
conveyance of a
180-acre tract in the Tongass National Forest under ANCSA, which will
provide an access corridor between two existing Cape Fox tracts.
Conveyance of this tract would allow Cape Fox to consolidate its land
holdings in the area, providing access to a proposed hydro power
project. Conveyance of the corridor will allow access to land currently
unavailable for subsistence hunting, fishing, subsistence gathering,
and other economic development.
Thank you again for scheduling today's hearing, and I look forward
to answering your questions.
______
Questions Submitted for the Record to Hon. Tom Harris, Vice President,
Cape Fox Corporation
Questions Submitted by Representative Westerman
Question 1. What would finalizing this final land conveyance under
ANCSA mean to Cape Fox?
Answer. The passage of ANCSA on December 18, 1971 represented the
largest single land settlement promise in Congressional history. This
promise has been held up 53 years, for Cape Fox Corporation, based on
the BLM'S strict bureaucratic interpretation of the letter of the law
rather than the spirit of the law.
The spirit of the law intended that ANCSA corporations receive
these lands as a community development endowment in support of and in
service to the socioeconomic survival of each Congressionally
identified community.
The agency's interpretation of the letter of the law, set aside
that Congressional intent, in favor of forcing Cape Fox to select an
isolated mountain top, with zero legal or ecological viable access and
zero socioeconomic value to its community.
The passage of H.R. 2815 would for the first time in history,
provide Cape Fox Corporation the last critical land selection that
would finalize the land settlement and open up the potential to:
1. Complete a compact and contiguous utility corridor to a
potential 9 MW hydroelectric site.
2. Develop that site into a completing interest hydroelectric power
plant in support of the growing renewable energy demands the local
community.
3. Complete a comprehensive analysis of this site as what may be
the largest hydroelectric energy storage facility in Alaska, capable of
stabilizing the Southeast Alaska Grid, while simultaneously functioning
as a power charging station for Electric Vessels and Cruise Ships, that
are currently forced to run onboard generators while in port.
Question 2. It is my understanding that the Cape Fox Corporation
has the necessary licenses to develop the proposed Mahoney Lake Project
power facility.
2a) What obstacles currently stand in the way of this development?
Answer. At the present time no Power Sales Agreement (PSA) exists
between CFC and Ketchikan Public Utility or any other entity. This is
due in part to the lack of a secured utility corridor which H.R. 2815
addresses. As such, pursuit of a comprehensive hydropower/storage
development plan, complete with a PSA and financing package can proceed
upon the passage of H.R. 2815.
Question 3. From Cape Fox's perspective, how would H.R. 2815 ensure
the Mahoney Lake Project is developed and enacted effectively?
Answer. The passage of HR 2815 and the conveyance of these lands
will allow CFC to move forward with design and construction of an
access corridor between its existing land holdings. The construction of
the access road will not only significantly increase the feasibility of
the Mahoney Power Project, but it will also provide a significant
source of Cultural Wood required to maintain traditional customs and
skills of the Saxman People. There will also be additional economic
activity due to increased access to its traditional lands. The increase
to the existing tourism venues will be substantial.
Question 4. Committee research has shown that Cape Fox and
surrounding areas deal with power brownouts due to the lack of ample
energy supplied.
4a) Share with us what the Cape Fox brownout experience has been?
Answer. In 2019 the Saxman / Ketchikan Area experienced a severe
drought situation which impacted the hydropower sources. The area
usually generates 98% of its power from Hydro, the drought required
full use of the Utilities' existing diesel generation backup and
additional generators to be added. The village of Metlakatla has
experienced several ``power crisis'' events over the years due to aging
power grids.
4b) How would the Mahoney Lake Power Project reduce brownouts?
Answer. The Mahoney Power Project would increase electrical power
production allowing for additional long-term power security.
Question 5. What positive impacts would the Mahoney Lake Power
Project provide for surrounding communities?
Answer. Coupled with an intertie to Metlakatla, many economic
projects including changing current diesel heat to electric, providing
power to Cruise Ships, and expanding the Ketchikan Shipyard can be
realized. The additional power will allow expansion for potential
milling or mining activities such as the Niblack and Bokan-Dotson Mines
which would require additional electrical generation. The largest
potential power requirement is for the Cruise Lines which are
interested in ``plugging in'' to the Ketchikan power grid. A large
cruise ship requires 12 MGW of power to partially shut down its
systems.
______
Mr. Hurd. Thank you, Vice President Harris, for your
testimony. The Chair now recognizes the Honorable Frances
Charles for 5 minutes.
Chairwoman Charles.
STATEMENT OF THE HON. FRANCES CHARLES, CHAIRWOMAN, LOWER ELWHA
KLALLAM TRIBE, PORT ANGELES, WASHINGTON
Ms. Charles. Thank you. Chairman Hurd, Ranking Members
Leger Fernandez, and distinguished members of the Subcommittee
for the Indian and Insular Affairs, thank you for the
opportunity to testify on H.R. 2388 to transfer certain Federal
lands on the Elwha River to the Lower Elwha Klallam Tribe in
trust and reservation status. I want to thank Representative
Randall from the State of Washington for introducing this bill.
My name is Frances Charles. I am the Chairwoman of the Lower
Elwha Tribe and the Tribal Council. I have been on tribal
council since 1993 and Chairwoman for the past 21 years.
Our reservation is located on the Elwha River. It flows
into the San Juan de Fuca on the beautiful Olympic Peninsula.
The Elwha River is our life blood. It is our life blood that
flows in our veins, and our Elwha people have lived there for
thousands and thousands of years, in balance with the abundant
salmon runs which always provided food for our families,
tables, and ceremonials that we feed our guests with.
In 1913 the Elwha Dam was built just a few miles upstream
from our homes. No one told us, and no one had asked us. I
remember the elders that talked about it in our earlier years.
The dam blocked 95 percent of the river. Almost overnight the
salmon runs were destroyed, reduced to a small fraction of what
that had been. Since then we have been working to get the dams
removed.
The Elwha Dam also inundated the Indian Valley under the
reservoir of the dam form known to us today as Lake Aldwell.
The valley is a significant cultural and ceremonial values to
the Tribe, as it is located on our ancestral village in the
sacred land known as the creation site. After working for
decades to remove the dam and restore the ecosystem in the
salmon fisheries, Congress passed the Elwha River Ecosystem and
Elwha Fisheries Restoration Act in 1992, which led to the
removal of the dam and restoration of the Elwha ecosystem and
the fisheries by 2014.
The Department of the Interior had to acquire the dam and
the reservoir lands in order to remove the dam and to have it
transferred to these lands that we are talking and discussing
about today. The Elwha River Act identifies the Tribe as one of
the four entities eligible for the transfer of these lands. The
other eligible entities are Federal and State agencies that do
not want the land.
The largest piece of the land that has been transferred by
the bill is the former Aldwell Reservoir, which I previously
mentioned is the site of the great importance to our Tribe. I
cannot express how difficult it has been to have that site
submerged for the past 100 years. Several of us had hiked to
our spiritual sacred site to enjoy the site, the visuals of our
ancestors. We were willing and eager to take on the stewardship
management of our ancestors' lands, and will conduct all of the
activities in accordance with the need to restore and protect
the salmon resources on the Elwha River, as we always have
done.
We have received letters of unconditional support from
Makah Tribe, City of Port Angeles, and the Washington
Department of Transportation is supporting this transfer as
well.
We have included disclaimer language in section three of
the bill to ensure that all of our treaty rights and the treaty
rights of our sister Tribes will be protected, and we will
continue to work with our sister Tribes as a part of the river
restoration efforts.
We have waited for years, years for this land to be
transferred to us, and to achieve that, we need the bill to
move along to be passed in Congress. We have been the sole
workers, the sole Tribe working on the dam removal and the
fisheries restoration for so many years, so many generations.
And we have put all of our resources and energy into the river
restoration. We will continue to work with Representative
Randall, this Committee, and the National Park Service to bring
the last piece of the dam removal project to closure.
I thank our ancestors, the previous tribal council, our
elders, the veterans, and the future generations to follow to
be here before you all today. I thank you for your time and the
work that you have put into this just as well.
[Speaking Native language.] Thank you.
[The prepared statement of Ms. Charles follows:]
Prepared Statement of Frances G. Charles, Chairwoman, Tribal Council,
Lower Elwha Klallam Tribe
on H.R. 2388
Chairman Hurd, Ranking Member Leger Fernandez, and distinguished
members of the Subcommittee for Indian and Insular Affairs, thank you
for this opportunity to submit written testimony on H.R. 2388, which
would take certain federal land in the State of Washington into trust
for the Lower Elwha Klallam Tribe.
I also wish to express my gratitude to Representative Randall for
introducing this bill. And we appreciate the work of our partner at the
National Park Service in contributing to the development of this bill.
My name is Frances Charles. I serve as the Chairwoman of the Tribal
Council for the Lower Elwha Klallam Tribe. I have been elected to serve
on the Tribal Council from 1993 to the present, and for the past 20
years my people have elected me as the Chairwoman of the Tribal
Council. During all of this time, the removal of the dams on the Elwha
River and the restoration of the ecosystem and salmon fisheries has
been a critical goal of the Tribe, to which we have devoted an
extraordinary amount of our time, expertise, and resources. Together,
with our partner the National Park Service, we have accomplished many
monumental objectives but much work remains to fulfill the promise of
restoring the ecosystem and the salmon fisheries as made possible by
the Elwha River Ecosystem and Fisheries Restoration Act of 1992. This
is one of the greatest ecosystem restoration projects ever undertaken
in the United States, and the Lower Elwha Tribe is proudly committed to
seeing this effort through to the end, when restored runs of our salmon
relatives will, after over 100 years, again fill the Elwha River with
life.
1. H.R. 2388, to take certain Federal land into trust for the Lower
Elwha Klallam Tribe
This bill will transfer certain federal land on the Elwha River on
the Olympic Peninsula in the State of Washington into trust and
reservation status for the Lower Elwha Klallam Tribe (Lower Elwha or
Tribe). Section 3 of the Elwha River Ecosystem and Fisheries
Restoration Act,
P.L. 102-495, 10 Stat. 3173, October 24, 1992 (EREFRA), authorized
the Secretary of the Interior (Secretary) to acquire the property
necessary to carry out the dam removal and the restoration of the
ecosystem and fisheries on the Elwha River. Subsection 3(c)(3) of
EREFRA directed the Secretary to address the suitability of, among
other things, the transfer to Lower Elwha of lands acquired for the
project outside of the boundaries of Olympic National Park.
Most of the parcels subject to this bill (approximately 1,061
acres) are those that the Secretary acquired for the demolition of the
Elwha Dam and ecological restoration of the former Lake Aldwell
reservoir that had been impounded by that dam.\1\ These lands (often
referred to as Project Lands or Aldwell Lands) are located beginning at
4.9 miles upriver from the mouth of the Elwha River. The Lower Elwha
Tribe has performed the largest share of the restoration work on these
parcels, including revegetation of the former reservoir site and
operation of on-reservation hatchery programs that have preserved the
native Elwha genetics of four species of anadromous fish.\2\
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\1\ The Lake Aldwell Parcels are identified on the map entitled
Olympic National Park Proposed Transfer of Elwha Lands, Map Number 149/
178020, December 2021.
\2\ The Tribe's original hatchery was rendered unusable by the
elevated water table resulting from dam removal. The new Lower Elwha
fish hatchery maintains programs for Steelhead trout, Coho, Chum and
Pink salmon. The Washington Department of Fish and Wildlife (WDFW)
maintains the Elwha River Chinook salmon hatchery program.
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The remaining lands transferred by this bill are the three Hill
parcels (approximately 16.83 acres) and the Halberg parcel
(approximately 4.8 acres), which the Secretary acquired to construct
the pipeline conveying surface water to the Tribe's new fish hatchery--
the House of Salmon--which was built with EREFRA funds as mitigation
for the dam removal project.\3\ Water for the new hatchery is supplied
from the City of Port Angeles's new surface water intake and water
treatment plant, which were constructed as mitigation to protect the
City's municipal and industrial water supply. The Hill and Halberg
parcels are contiguous to the Tribe's current reservation boundary and
adjacent to the Tribe's fish hatchery pipeline and rights-of-way for
the operation and maintenance of that pipeline. These small parcels
will be managed in accordance with existing conservation requirements
applied to the contiguous reservation lands along the Elwha River
corridor, which do not allow hunting given their proximity to tribal
buildings, residential areas, and public roadways.
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\3\ The Hill and Halberg parcels are also identified on Map Number
149/178020.
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This bill is an important final action to the dam removal project
and the restoration of the fisheries. The bill will uphold the federal
government's trust and treaty obligations to the Tribe by protecting
the federal investment in restoration and conservation of the Elwha
River and allowing for the continued restoration of the river ecosystem
and fisheries under the Tribe's management. This bill will also protect
sacred and cultural homelands by restoring them to the stewardship of
the Tribe. Lower Elwha is the only tribe that has been involved in this
project and has done more in-water and on-ground work than any agency,
including on the very lands transferred by this bill.
2. The Lower Elwha Klallam Tribe
The Tribe is located on the North Olympic Peninsula in the
northwestern corner of Washington State. Our Reservation is at the
mouth of the Elwha River where it meets the Strait of Juan de Fuca, a
body of marine water that also serves as the international boundary
with Canada. Our people have inhabited the territory along the Elwha
River from the mouth to the upper basin in the Olympic Mountains since
time immemorial.
In 1855, the Tribe, expressly represented by the village of Elwha,
entered into the Treaty of Point No Point with the United States. While
ceding all of our homeland territory to the United States, the Tribe
reserved its pre-existing aboriginal rights to fish, hunt and gather in
those lands and waters, and agreed to other promises made by the United
States.
After the Treaty, the Lower Elwha were essentially a landless
people--living as best we could in the Elwha watershed and along Port
Angeles Harbor--until the Secretary of the Interior acquired several
hundred acres of land at the mouth of the Elwha River in trust for us
in 1936-37, under authority of the newly enacted Indian Reorganization
Act of 1934. This land was formally proclaimed as the Lower Elwha
Reservation in 1968. It was not until 1974 that the State of
Washington's suppression of our treaty rights began to come to an end
with the successful fishing rights litigation United States v.
Washington, which resulted in the well-known Boldt Decision of 1974
that the Treaty Tribes have a right to harvest half of the salmon runs.
U.S. v Washington is still going on today and the 20 Treaty Tribes have
become co-managers, with the State of Washington, of the fishery
resources, with sophisticated management and regulatory capabilities.
In 1978, the federal court in U.S. v Washington began, in a series
of decisions, to delineate Lower Elwha's Usual and Accustomed treaty
fishing area (commonly referred to as ``U&A''). The first decision is
most relevant for purposes of this bill, that Lower Elwha's adjudicated
U&A includes, but is not limited to, the waters of the Strait of Juan
de Fuca and all the streams draining into it from the Hoko River
eastward to the mouth of Hood Canal. U.S. v Washington, 459 F.Supp.
1020, 1049 (W.D.Wash. 1978). This Lower Elwha treaty fishing area thus
includes the Elwha River and other rivers to the east and west.
3. The Elwha River Dams
During the period between the 1855 Treaty and the 1937 relocation
of Elwha Indians to the Elwha River trust lands, one of the major
hardships to visit the Tribe began to unfold. In the early 1900s, two
dams were built on the Elwha River to provide hydroelectric power to
the City of Port Angeles and the booming timber industry. Up until
then, the Elwha River had been the most productive salmon river on the
North Olympic Peninsula, and was one of few rivers with all six species
of anadromous fish--Chinook, Sockeye, Coho, Chum and Pink salmon, and
Steelhead trout. The dams were constructed without fish passage, a
clear violation of State law at the time, and immediately blocked
access to 95% of the river's pristine salmon habitat, seventy-five
miles of river and stream. This is illustrated in two maps attached at
the end of this testimony. Predictably, this resulted in the immediate
decimation of the anadromous salmon and trout populations. The loss of
those fisheries, which have significant cultural and economic meaning
to the Tribe, was an obvious infringement of the Tribe's treaty fishing
rights and proved devastating.
The Elwha Dam built in 1913 inundated Indian Valley under the
reservoir that became known as Lake Aldwell. This valley, which
comprises the lands to be transferred by this bill, is an important
cultural and ceremonial location to the Tribe that includes our
ancestral village of Tee-tee-ulth, a once prolific fishing site for
Elwha Chinook and Sockeye salmon located on the Elwha River at the
mouth of Indian Creek. In addition to Tee-tee-ulth, the valley is the
location for other seasonal fishing and hunting camps, lithic
processing sites, and sacred lands, including land known as the
Creation Site--the location where the Creator bathed and blessed the
Elwha people.\4\ Uncountable generations of our people traveled to this
site to purify themselves and receive spiritual guidance, a practice
that has been restored by the removal of the Elwha Dam.
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\4\ Indian Valley is the subject of a Traditional Cultural Property
(``TCP'') study being conducted on behalf of the Lower Elwha as
mitigation for the Federal Highway Administration and Washington State
Department of Transportation Highway 101 Elwha River Bridge Replacement
Project.
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4. Lower Elwha's Fight Against the Dams
In the 1970s and 80s, the Tribe challenged the relicensing of the
dams on the Elwha River by the Federal Energy Regulatory Commission
(FERC).\5\ We officially intervened in the FERC relicensing proceedings
for the Elwha Dam in 1976. After we did so, the National Park Service
(NPS), and the Washington State Department of Ecology (Ecology) and
Department of Fish and Wildlife (WDFW) also intervened. Other federal
and state agencies intervened as the challenged proceedings continued.
In 1978, the Elwha Dam failed a safety inspection, which prevented the
expenditure of funds on the Lower Elwha Reservation for important
programs related to flood control, housing, and economic development.
In response, the Tribe hired its own consulting and engineering firms
and pushed FERC into issuing an emergency dam safety order requiring
the repair of the dam.
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\5\ Appendix B ``Federal Licensing Chronology'' to the Elwha Report
provides a summary of the challenges to the dams on the Elwha River.
The Elwha Report: Restoration of the Elwha River Ecosystem & Native
Anadromous Fisheries, U.S. Department of the Interior (January 1994).
---------------------------------------------------------------------------
In the 1980s, the Tribe turned its attention to the issue of fish
passage, and the fight expanded. It was clear to the Tribe, the federal
agencies, and the conservation groups involved that continued operation
of the dams, even with mitigation for fish passage, could never meet
the resource goals of the federal agencies, the state, or the Tribe. In
1986, the Tribe intervened in the FERC relicensing of the Glines Canyon
Dam, and shortly thereafter the NPS intervened on the basis that the
initial construction and continued operation within the boundaries of
Olympic National Park was a violation of numerous federal laws.
Lower Elwha was one of the most assertive parties seeking removal
of the dams. We led the charge, prompting federal and state agencies to
intervene. It is important to note that Lower Elwha stood alone as the
only Tribe in the fight against the dams. Other tribes may claim some
rights or interests in the Elwha River fisheries, but none of them has
actively engaged or devoted resources, time, and the hard work that was
necessary to achieve dam removal and the ongoing process of ecosystem
restoration.
The focus on dam removal as the only viable solution, as advocated
by the parties intervening in the FERC proceedings, also posed the
potential loss of jobs in the City of Port Angeles, Washington, and
surrounding community. Congress recognized that this conflict between
the environment, treaty rights, and jobs required a negotiated
resolution that could not be achieved through settlement of the
litigation. Only compromise achieved through congressional action was
capable of restoring the fisheries, protecting the treaty rights of
tribes, and minimizing economic impact on the local community. Congress
stepped in to bring closure to this long-standing issue.
5. The Elwha River Ecosystem and Fisheries Restoration Act of 1992
In 1992, Congress passed EREFRA to remove the dams and restore the
river ecosystem and fisheries. In order to remove the dams, the
hydroelectric project lands--dam and reservoir sites--were acquired by
the Department of Interior.\6\ The project lands located outside of
Olympic National Park that were acquired for this purpose (the Aldwell
Reservoir lands comprising 1061 acres) are the subject of this bill
(along with the smaller, miscellaneous Hill and Halberg parcels).
EREFRA section 3(c)(3) specifically included provisions for Interior to
protect the federal investment in restoration of the river and its
fisheries by transferring lands to Lower Elwha in trust for housing,
cultural, or economic purposes.
---------------------------------------------------------------------------
\6\ The Secretary of Interior's authority under EREFRA was
transferred to the National Park Service by Secretarial Order No. 3212
(February 29, 2000).
---------------------------------------------------------------------------
EREFRA section 3(c)(4) also required Interior to protect the water
supply from the Elwha River for the City of Port Angeles and its
industrial user. As mitigation for dam removal, the City's water intake
had to be relocated and a treatment plant constructed to protect water
quality from the heavy sediment loads that would be released from
behind the former dams.
Also as mitigation, the Tribe's fish hatchery was replaced and
relocated with a new facility designed to prevent the extirpation of
the Elwha River anadromous fish stocks. As a result, the water intake
for the fish hatchery was moved and co-located with City's new surface
water intake. NPS thus acquired the Hill and Halberg parcels
(approximately 21 acres) for construction of the pipeline that supplies
the new fish hatchery with surface water supply from the City's new
intake. The transfer of these parcels in the bill to the Tribe is a
necessary prerequisite so the NPS can transfer the pipeline
infrastructure and rights-of-way for its operation and maintenance.
6. Status of Dam Removal and Ecosystem and Fisheries Restoration;
Endangered Species Act Considerations
The two dams were removed from 2011-14 and the work of restoring
the ecosystem and fisheries is ongoing. Even prior to demolition, the
Tribe's stream and habitat restoration crew had built numerous
Engineered Log Jams (ELJs) in the river to direct the energy of the
newly liberated river and create various micro-habitats and refugia for
fish restoration. With the dams gone, an enormous volume (21 million
cubic yards) of accumulated sediment was released, with much of the
sand ending up initially as a new 90 acre beach. Most of the material
has since been transported eastward via longshore drift and has been
deposited as far east as Ediz Hook, the spit that encloses Port Angeles
Harbor. The Tribe's Revegetation Crew has planted over 450,000 native
trees and shrubs and 8,000 pounds of seeds, and eradicated noxious
weeds, throughout the newly dewatered former reservoir sites, not only
on the Aldwell lands transferred by this bill but also the upper site
behind the former Glines Canyon Dam site within Olympic National Park.
Fish are beginning to recolonize the upper watershed above the
Glines site. But the total moratorium on commercial and recreational
fishing that began in 2011 remains in effect. It will take additional
salmon life cycles, greater distribution, and increased productivity
before significant fishing can resume, particularly for the listed
species, Chinook salmon and Steelhead. Inter-agency fisheries
scientists, including the Tribe's, have identified four phases for
fisheries recovery: Preservation, Recolonization, Local Adaptation, and
Sustained Natural Production. Adaptive management of fish recovery is
governed by Biological Opinions issued by the National Marine Fisheries
Service (NMFS or NOAA Fisheries). Triggers for moving from one recovery
phase to the next are based on surveys of returning adult fish,
including fish numbers and natural spawning locations, as well as
enumeration of out-migrating smolts. At this point, recovery by coho
salmon, Chinook salmon, and Steelhead are in the early to middle stages
of the Recolonization phase. One notable exception to the ongoing
fishing moratorium on the Elwha River is with coho salmon, which have
responded rapidly thanks to early translocation efforts and hatchery
supplementation. The Co-managers (WDFW and the Tribe) initiated a
Ceremonial and Subsistence coho salmon fishery in fall 2023 due to
projected modest surpluses of returning fish, and the fact that this is
not a listed species under recovery NOAA guidance.
Compliance with the requirements of the Endangered Species Act, 16
U.S.C. Sec. Sec. 1531-1544 (ESA), has been a critical long-term
consideration in Elwha River dam removal and fisheries restoration,
particularly with respect to the use of fish hatchery and rearing
facilities. In order to remove the very dams responsible for decimation
of the salmon runs, the Tribe and the United States had to ensure that
doing so would not result in ``jeopardy''--in the language of the ESA--
to listed fish or undue harm to the remnants of the native Elwha
anadromous fish stocks.\7\ Release of the accumulated sediment posed a
serious risk of extirpating the remaining native fish, because it could
wipe out a whole year-class or generation of juveniles during the time
they spend in the river maturing to a point when they are ready to out-
migrate to salt water. Accordingly, as a key element of its ESA ``no
jeopardy'' determination for dam removal in July 2012, NOAA Fisheries
required the Tribe and the State of Washington to operate their
existing hatchery and rearing programs as a ``gene bank,'' to preserve
the unique native genetics of Elwha River anadromous fish.
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\7\ Anadromous fish are those that begin their life cycle in fresh-
water streams, migrate to the ocean for several years, and return to
their natal streams to reproduce. The Elwha River historically produced
all five species of Pacific Salmon as well as Steelhead. Currently,
Puget Sound Chinook salmon and Puget Sound Steelhead are listed as
threatened under the ESA.
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Indeed, the Tribe has been long at work to ensure the survival of
these sacred species. Since the 1970s, the Tribe has operated an on-
reservation hatchery with programs for several anadromous species,
including stocks still carrying native Elwha River genetics. The
Tribe's old hatchery was rendered unusable due to an elevated water
table after dam removal, and EREFRA provided funding for construction
of a new state-of-the-art hatchery at river mile 1.2. The WDFW also
operates its rearing facility on the Elwha River, 2.5 miles upstream of
the Elwha hatchery, where it raises Chinook salmon hatched from Elwha
River eggs at an out-of-watershed facility. The goal of Elwha
restoration is of course to ensure that all native species be preserved
and eventually reproducing naturally in the seventy-five miles of
pristine habitat made accessible by dam removal, such that hatchery
production may eventually become unnecessary.
The Tribe's four hatchery programs and the State's single program
are operated in accordance with Hatchery and Genetics Management Plans
(HGMPs) that have been reviewed and approved by NMFS in a December 2012
Biological Opinions under the ESA. From 2012-2015, the Tribe, Interior,
and NMFS partnered to successfully defend a major ESA lawsuit
challenging the adequacy of these HGMPs and NMFS's Biological Opinions.
Clearly, Lower Elwha has made a major commitment of time,
resources, and its own expertise to work closely with our agency
partners to make Elwha River dam removal and ecosystem and fisheries
restoration a major success story.
7. Disposition of Project Lands to Protect Federal Investment in
Restoration
Section 2(c) of H.R. 2388 expressly preserves the requirement of
EREFRA subsection 3(c)(3), that following dam removal--and ``for
purposes of protecting the federal investment in restoration'' of the
Elwha River and its fisheries--the Aldwell Lands are to be managed in
accordance with the policy of Section 1(b) of Public Law 90-542, the
Wild and Scenic Rivers Act, 16 U.S.C. Sec. 1271, ``except that
modifications necessary to restore, protect, and enhance fish resources
. . . are hereby authorized.'' That subsection of EREFRA also
identified the Tribe as one of four entities eligible for transfer of
these lands, in trust and reservation status. The other three eligible
entities were: NPS, for inclusion in the National Park System; the
United States Fish and Wildlife Service (USFWS), for addition to the
National Wildlife Refuge System; and the State of Washington, for
development and use by the State. Neither NPS nor the State desired the
lands. The USFWS conducted a feasibility study and concluded that these
lands are of insufficient size and lacking the wildlife and fish values
necessary for a National Wildlife Refuge. Accordingly, NPS has
identified Lower Elwha as the only authorized entity willing and able
to take on the management of these lands to protect the federal
investment in Elwha River restoration.
Indeed, Lower Elwha stands willing and eager to take on the
stewardship and management of these ancestral lands, to fully realize
the promise of a restored ecosystem and fisheries. Any use of these
lands for tribal housing or economic development purposes, as provided
for in EREFRA, will be conducted in accordance with the need to
restore, protect, and enhance the fish resources and the Elwha River as
the first priority.
8. Support from State Agencies and Local and Tribal Governments
In 2020, the Tribe received letters of unconditional support from
the Makah Tribe, City of Port Angeles, and Washington Department of
Transportation, all recognizing the years of hard work put in by the
Tribe and the cultural importance of these lands to the Lower Elwha.
A joint letter of conditional support was submitted by the
Jamestown and Port Gamble S'Klallam Tribes (S'Klallam Tribes). This
letter supported the transfer of the project lands to Lower Elwha--
while acknowledging the presence of the Elwha Creation Site and Elwha
village of Tee-tee-ulth--and sought protection of the S'Klallams'
interpretation of their treaty rights. Lower Elwha and the S'Klallams
resolved the treaty rights concerns by the addition of the savings
clause (or disclaimer) in Section 3 of H.R. 2388, discussed below. It
must be noted that the hard work of dam removal by Lower Elwha and NPS
as its primary partner has already advanced the protection of treaty
rights of all Tribes, including the S'Klallam. Ultimately, the ongoing
efforts to restore the ecosystem and fisheries will result in the
increased natural production of anadromous fish and harvest
opportunities in those fisheries.
9. Protection of Treaty Rights Through Continued Adaptive Management
and Legislative Savings Provisions in EREFRA and H.R. 2388
The protection the S'Klallam Tribes seek is already accounted for
in EREFRA. The savings clause in subsection 8(b) of EREFRA provides:
``Nothing in this Act shall affect the rights of any Indian Tribe
secured by Treaty or other law of the United States.'' Thus, the
provision in EREFRA that allows for the transfer in trust of lands to
the Elwha Klallam for tribal housing, cultural and economic development
purposes, as well as the provision recognizing the transfer of the
Aldwell lands, cannot be said to affect the S'Klallam Tribes' treaty
rights.
In addition, the savings clause (or disclaimer) in Section 3 ``No
Impact on Treaty Rights,'' provides: ``Nothing in this Act affects
treaty rights under the Treaty between the United States of America and
the S'Klallams Indians, concluded at Treaty of Point No Point.'' The
inclusion of this language in the bill protects the treaty rights of
the parties to the Treaty of Point No Point, including protecting the
S'Klallam Tribes from any effect that the transfer of the project lands
in trust and reservation status for the Elwha Klallam may otherwise
have on any such rights. These lands proposed for transfer to the Tribe
in the bill were previously under federal ownership, which likewise,
would not have extinguished tribal treaty rights. Change in title and
vesting of reservation status to the Tribe similarly is not an act of
abrogation of treaty rights and the disclaimer language makes that
clear.
Moreover, EREFRA subsection 3(c)(3) requires that the transfer to
Elwha Klallam of lands in trust be done in accordance with a management
plan to be prepared by the Tribe in consultation with the Secretary of
Interior. The management plan will be consistent with both the purposes
of the transfer of the lands in trust for the Elwha Klallam enumerated
in subsection 3(c)(3), including tribal housing, cultural and economic
development, and the protection of the federal investment in
restoration. The ongoing restoration requirements will be governed in
large part by the Biological Opinions and adaptive management practices
explained in Section 6 above.
For purposes of providing the S'Klallam Tribes with the protection
they are seeking for the exercise of their treaty rights, the
consultation with Secretary of Interior on the management plan will
provide an opportunity for the S'Klallam Tribes to engage on those
aspects of the plan that involve fishing, hunting and gathering in a
manner consistent with: (1) the respective treaty rights of the Elwha
Klallam and the S'Klallam Tribes; (2) the restoration of the lands,
ecosystem, river and fisheries; (3) the purposes for the transfer of
land in trust affected by this bill; and (4) the trust responsibility
of the United States toward the three Tribes.
Nothing further needs to be added to this bill. The protections
sought by the S'Klallam Tribes for the exercise of their treaty rights
under the Treaty of Point No Point are accounted for. No new
legislative language is needed beyond the inclusion of the savings
clause in Section 3, which is the standard disclaimer language used by
Congress on a consistent basis.
10. In Closing
The Lower Elwha Klallam Tribe has invested heavily in the fight for
dam removal and has worked tirelessly toward the goal of a restored
Elwha River. We have been involved in every aspect of this historic
process, from hands-in-the-earth and waders-in-the-river to peer-
reviewed scientific papers and federal appeals court legal briefs and
everything in between. We have almost certainly spent more time than
any other party working on the Aldwell Lands to restore the native
vegetation and the habitat in the river. An appendix listing examples
of these actions is included with this testimony. This Congress has the
opportunity to take one of the final legislative actions necessary to
complete this historic dam removal and ecosystem restoration project:
the transfer of these ancestral lands, in trust and reservation status,
to the Lower Elwha Klallam Tribe.
Once again, the Tribe is most grateful for the opportunity to
present this testimony about a matter of profound importance to the
Tribe's history and its future.
Appendix of Actions taken by the Lower Elwha Klallam Tribe
To Accomplish Dam Removal and Restoration of the Elwha River and Its
Fisheries
--Worked to oppose the relicensing of dams without adequate
mitigation for salmon fisheries and to obtain the support of NPS and
NMFS for these efforts.
--Successfully achieved the enactment of EREFRA in 1992 (which set
up this land transfer), along with allies in Congress and in the
federal agencies.
--Worked to prepare for the impacts of dam removal.
Constructed numerous ELJ's for habitat.
Built new state of art hatchery to preserve native fish
genetics, which enabled NMFS to approve dam removal under ESA.
Upgraded flood control levee.
Dedicated a couple hundred acres of Reservation land west
of the levee to habitat.
--Worked to achieve restoration and adaptive management after dam
removal.
Defended anti-hatchery lawsuit with U.S.
Operated fish hatchery to prevent extirpation of Elwha
River fish stocks.
Revegetated the Aldwell lands.
Built more ELJs.
Monitored the fish returns.
Published peer-reviewed scientific papers with agency
partners.
Worked with agencies both to ensure adherence to terms of
applicable BiOps and also to develop potential updates to ESA criteria.
Worked with City of Port Angeles and NPS to design soft
armoring and ELJ solution to erosion at surface water intake and City's
Rainey Well intake.
Opposed NPS Hot Springs Road Realignment Project for
failure to adequately protect fisheries; that project planning is
starting over with a new EIS.
Worked with FHWA and WSDOT on fisheries mitigation package
for replacement of Highway 101 Elwha River Bridge.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mr. Hurd. Thank you, Chairwoman Charles, for your
testimony.
The Chair now recognizes Mr. Eric Shepherd for 5 minutes.
Mr. Shepherd.
STATEMENT OF ERIC SHEPHERD, VICE CHAIRMAN, SOUTH DAKOTA NATIVE
HOMEOWNERSHIP COALITION, SISSETON, SOUTH DAKOTA
Mr. Shepherd. [Speaking Native language.] Chairman Hurd,
Ranking Member Leger Fernandez, and members of the Subcommittee
on Indian and Insular Affairs, my name is Eric Shepherd.
[Speaking Native language.] I am the Executive Director of
the Sisseton-Wahpeton Housing Authority in Sisseton, South
Dakota, on the beautiful Lake Traverse reservation. I am here
today in my capacity as the Vice Chair of the Board of
Directors of the South Dakota Homeownership Coalition.
I would like to begin by thanking Representative Dusty
Johnson and Senator John Thune from my great State of South
Dakota for their leadership on H.R. 2130 and S. 723 to
streamline the Bureau of Indian Affairs' mortgage-related
processes to promote homeownership opportunities for native
people living on tribal land.
Representative Johnson and Senator Thune recognized for
homeownership on trust land to be successful, the BIA must
modernize its system to facilitate mortgages and financing to
meet the need of Indians wanting to build, buy, renovate homes
on reservations. Collectively, on behalf of the South Dakota
Native Homeownership Coalition and the 75 TDHEs, CDFI, non-
profits, lenders, developers, all of these entities we work
with in South Dakota, we express our strong support for H.R.
2130, the Tribal Trust Land Homeownership Act of 2025.
The Subcommittee and other House committees have been made
aware of Native Americans and Alaskan Natives' housing needs in
this country. You all have seen the statistics of high poverty
rates, low incomes, housing shortages, lack of plumbing and
heating, and unique development issues, just a few of those
scenarios. Compounding the housing shortage is overcrowding.
Overcrowding of our Indian homes is one of the many reasons why
offering opportunities for families who qualify for mortgage
financing is so important. Our communities must leverage our
housing resources, and the BIA should not stand in the way of
our people achieving self-sufficiency through home ownership.
Now I would like to talk more specifically about H.R. 2130.
We like the bill language that designs new BIA systems and
streamlines existing processes compatible with private mortgage
industry practices. H.R. 2130 seeks to pave the way to increase
the homeownership rates of native families. Overall, the
legislation prioritizes the mortgage processes within the BIA
and while seeking to hold staff accountable.
The status title's reports are the equivalent to non-Indian
land titles and house titles. The BIA is responsible for
producing these TSRs, and mortgage lenders need the TSR's to
document clear title and to provide approve financing.
Unfortunately, it can take anywhere from 3 months to up to 5
years to receive the TSR from the BIA. H.R. 2130 establishes
timelines for review and processing guidelines for leasehold
mortgages, right of away documents, land mortgages, and TSRs.
H.R. 2130 includes congressional oversight, which means the
Assistant Secretary of Indian Affairs, the BIA Director, and
any of the BIA superintendents or regional directors can be
held accountable if they are not processing TSRs or other
mortgage documents according to the timelines in this bill.
TAAMS terminals are like the database for all tribal land
status on every Indian reservation. We strongly support the
provision that requires BIA to give Tribes, and the Federal
agencies read-only access to TAAMS. We strongly support the
bill's mandate for a government to assess the needs and costs
for digitization of mortgage-related documents.
The BIA must modernize and enter today's world of
technology so that it can provide the appropriate level of
service necessary to provide home ownership transactions for
our native families. Often home buyers on tribal trust land
feel like their mortgages packages fall into a black hole
somewhere within the depths of the BIA. That is why we also
strongly support the establishment of a realty ombudsman to
ensure compliance with time frames and to receive inquiries
from tribal citizens, Tribe lenders, and tribal and Federal
agencies. It will be important, however, for this position to
have the authority to act where appropriate.
Thank you once again for the opportunity to testify. We
look forward to continuing to work with our South Dakota
delegation and the Subcommittee and all of Congress to improve
homeownership opportunities for native people, wherever they
may reside.
I would like to answer any questions you may have.
[The prepared statement of Mr. Shepherd follows:]
Prepared Statement of Eric Shepherd Vice Chair, Board of Directors,
South Dakota Native Homeownership Coalition
on H.R. 2130
Introduction
Chairman Hurd, Ranking Member Leger Fernandez, and members of the
Subcommittee on Indian and Insular Affairs, my name is Eric Shepherd. I
am the executive director of the Sisseton Wahpeton Housing Authority in
Sisseton, SD on the Lake Traverse Reservation. I am here today in my
capacity as the Vice Chair of the Board of Directors of the South
Dakota Native Homeownership Coalition.
Started in 2013, the South Dakota Native Homeownership Coalition is
a membership organization with a mission to increase homeownership
opportunities for South Dakota's Native people to build strong and
healthy communities. We're a diverse group of public agencies and
private institutions. Our stakeholders include approximately 75
representatives of South Dakota's tribes, federal and state agencies,
Tribally Designated Housing Entities (TDHEs), nonprofit organizations,
housing developers, residential construction professionals, lenders,
and community development financial institutions (CDFIs).
We appreciate the opportunity to express our strong support for
H.R. 2130, the Tribal Trust Land Homeownership Act of 2025. Before I
begin, I would like to thank Representative Dusty Johnson and Senator
John Thune from my home state of South Dakota for their leadership on
H.R. 2130 and the Senate companion bill
S. 723 to streamline the Bureau of Indian Affairs' (BIA's) mortgage-
related processes to promote homeownership opportunities for Native
people living on tribal land. We appreciate that they both recognize
that a strong housing development strategy in Indian Country must
include homeownership as a component, and, for the homeownership
process to work on trust land, the BIA must modernize its systems to
accommodate the pace of the mortgage financing industry.
Background
Native Americans living in tribal areas and remote Alaskan villages
experience some of the greatest housing needs in the country, with high
poverty rates, low incomes, overcrowding, lack of plumbing and heat,
and unique development issues. Overcrowding of available housing
stresses both the occupants and the structures themselves. Homes on the
reservations in South Dakota require much more maintenance than the
average wear-and-tear to remain safe and livable. This is not for lack
of property management; it is because there are not enough homes to go
around.
A three-bedroom house is designed for a family of five or six, but
often because of overcrowding these units are occupied by three or more
families--sometimes as many as 15 individuals sharing the house. This
is one of the many reasons why offering opportunities for families who
qualify for mortgage financing to build or purchase their own home is
so important in Native communities.
Feedback on H.R. 2130
Now, I'd like to talk more specifically about H.R. 2130. We commend
the emphasis this bill places on designing new BIA systems and
streamlining existing processes in a way that is compatible with
private mortgage industry practices. Native people should be able to
enter mortgage transactions just like any other citizen in this
country. Unfortunately, that is not always the case due to extreme and
unjustifiable delays and inconsistencies within BIA's processes. As our
trustee, the BIA has a fiduciary duty to protect tribal land and
prevent it from leaving its trust status. However, this trust
responsibility should not impede a tribal member's ability to utilize
their property rights to achieve their dream of homeownership.
H.R. 2130 will go a long way to build on the momentum we are seeing
across Indian Country to increase the homeownership rates of Native
families. Overall, we applaud the legislation for prioritizing the
mortgage processes within the BIA and setting a tone of accountability.
We do have concerns about the ``reduction in force'' efforts we are
hearing about across the federal government and the impact they will
have on implementing this legislation, once enacted. Even so, the
following provisions have the potential to offer some great solutions:
Review and Processing Timeframes. The bill establishes timelines
for review and processing guidelines for leasehold mortgages, right-of-
way documents, land mortgages, and Title Status Reports (TSRs). It also
mandates an annual report to Congress about the volume of mortgage
package documents and whether the applicable timeframes were met. We
appreciate the inclusion of this congressional oversight and hope that
it is adequate to ensure compliance with these statutory requirements.
We recommend that the Congressional oversight committees monitor
compliance closely and consider more stringent enforcement mechanisms
as appropriate.
To date, the BIA's administrative Mortgage Handbook (52 IAM 4-H)
issued in 2019 sets out similar timeframes. However, we have seen
delays occur during every step of the process including residential
lease approvals, mortgage encumbrance approvals, and the issuance of
initial and certified Title Status Reports (TSRs). The BIA generally
does not follow the timelines published in the Mortgage Handbook.
Historically, BIA has not been transparent or accountable with these
review processes, and there are often unexplained gaps in timing. One
national lender partner shared that lease approvals can take anywhere
from three months to five years. One tribe requested a meeting with its
BIA Agency Office to see what the tribe could do to expedite the s
in the process. They found 25 mortgage-related documents stalled on the
desk of the BIA Agency Superintendent.
Reasons for delays in these s of the process include:
Most BIA offices do not accept electronic copies so there
are delays as packages are mailed within BIA offices from the Agency
Office to the Regional Office and back to the Agency office and
eventually back to the requester.
Most BIA offices have inadequate staffing levels and
capacity to support mortgage-related transactions.
BIA does not provide adequate training for staff involved
with mortgage-related transactions. They don't understand the time
sensitivity involved with mortgage-related transactions. Borrowers
could be impacted by rising interest rates due to delays or may have to
resubmit their loan application materials if the loans take too long to
process.
Many leases are rejected by the BIA because the legal
descriptions are not accurate. Increased read-only access to the TAAMS
for tribes and lenders may help to mitigate this problem.
Delayed timeframes for the issuance of certified TSRs can have
significant implications for the lenders doing business on trust land.
To perfect a mortgage loan, the lender must receive a certified TSR
from the BIA. If the loan is not perfected within 12 months of closing,
secondary market investors require the lenders to indemnify the loans.
If the delay exceeds 36 months, the lender will have to repurchase the
loans. This delayed process has a chilling effect on future lending
opportunities on tribal land. As I mentioned, we expect these delays to
be exacerbated by the RIFs some BIA offices may be experiencing.
TAAMs Terminals. We strongly support the provision that requires
BIA to give tribes and the federal agencies ``read only'' access to
Trust Asset and Accounting Management System (TAAMS) terminals. It is
critical for the BIA to take the s necessary to provide access to
TAAMs terminals as expeditiously as possible to ensure that mortgage
processes are not unnecessarily stalled, including tribes who have
adopted their own leasing processes under the Helping Expedite and
Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act).
1st Certified Title Status Report. Another key element we are
pleased to see is the requirement for the 1st certified TSR to be
issued within 14 days. Off reservation, county assessors' records allow
one to see title records within minutes, and title policies are issued
by title companies for underwriting purposes usually within two to four
weeks. Receiving comparable documents from the BIA has varied widely by
BIA Region from 30 days to 365 days or more in many cases. Lenders
require certified Title Status Reports to document title for
underwriting purposes. These reports are submitted to loan underwriters
along with the loan application and traditional underwriting
information. Requiring a 14-day timeline for obtaining the 1st
certified TSR moves the process one step closer to the timing of the
industry experiences on fee simple land for home loan transactions.
Shift Towards Digitization. We strongly support the bill's mandate
for a GAO study about the need and cost for digitization of mortgage-
related documents. The BIA must modernize and enter today's world of
technology so that it can provide the appropriate level of service
necessary to support homeownership transactions for Native families. We
urge Congress to appropriate the funds necessary to implement the
findings of the GAO study as quickly as possible. We also encourage BIA
to expand their practice of allowing documents to be submitted
electronically through a secure portal, including for uploading and
transmitting any mortgage-related documents, residential leases, and
TSR requests.
Realty Ombudsman. Often, homebuyers on trust land feel like their
mortgage packages fall into a ``black hole'' somewhere within the
depths of the BIA. Therefore, we strongly support the establishment of
a Realty Ombudsman to ensure compliance with timeframes and to receive
inquiries from tribal citizens, tribes, lenders, and tribal and federal
agencies. It will be important, however, for this position to have the
authority to act where appropriate. For example, we would like to see
the Ombudsman have the authority to utilize automatic waivers and
assumed approval if timelines for reviewing mortgage packages are not
being met.
Recommendations
The South Dakota Native Homeownership Coalition once again commends
Representative Johnson for introducing H.R. 2130.
We would like to offer some additional suggestions for the BIA to
consider on an administrative level as they implement the legislation
once it is enacted.
Create BIA Mortgage Advisory Committee. We recommend that the BIA
create a Mortgage Advisory Committee which includes private lenders,
Native CDFIs, tribes, TDHEs, federal agencies, and the Government
Sponsored Enterprises (GSEs) including Fannie Mae, Freddie Mac, and
Ginnie Mae to work with the Bureau of Indian Affairs to identify
additional innovative solutions to streamline the mortgage processes in
Indian Country.
This Advisory Committee could also make recommendations about
potential improvements to bring BIA systems into the 21st century with
the technology needed to support residential mortgage transactions.
This could include an expeditious review at the Central Office level of
lease and security instrument rider templates required for conventional
lending to eliminate lengthy document reviews at the individual
transaction level.
Thank you once again for the opportunity to testify. We look
forward to continuing to work with our South Dakota delegation, this
Subcommittee, and all of Congress to improve homeownership
opportunities for Native people wherever they may reside.
I would be happy to answer any questions you may have.
______
Questions Submitted for the Record by the Hon. Bruce Westerman to Eric
Shepherd, Vice Chairman, South Dakota Native Homeownership Coalition
Mr. Shepherd did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Question 1. The BIA published their Mortgage Handbook on their
website, detailing a step-by-step timeframe for processing mortgages.
However, tribal members have stated often that these guidelines are not
met. Has the BIA been transparent during the mortgage application
review processes? Please elaborate.
Question 2. H.R. 2130 would create a specialized position at the
BIA to facilitate communication between the BIA, tribes, tribal
members, lenders, and federal agencies who operate tribal housing
programs. Please elaborate on the necessity of this proposed position.
2a) Please provide examples of past situations in which this
position would have facilitated the mortgage process in a timelier
manner?
Question 3. This Subcommittee has previously heard that it can take
anywhere from six to 18 months for a Title Status Report (TSR) to be
issued. Is that time frame, correct?
3a) How could the BIA improve upon their efforts in issuing these
TSRs?
3b) How do you see H.R. 2130 helping to alleviate this problem?
______
Mr. Hurd. Thank you so much, Mr. Shepherd, for that
testimony. The Chair will now recognize members for 5 minutes
for questions, and I will start by recognizing myself for 5
minutes.
One of the things, when I was speaking with the Chairman of
the entire House Natural Resources Committee, Chairman
Westerman, about what this Committee's priorities would be in
this Congress, he mentioned economic development in Indian
Country. And I think a number of these bills that we are
talking about today are driving toward that goal.
I want to start, Chairwoman Gonzales, with the issue that
you have, and I want to commend my colleague from Utah,
Congresswoman Maloy, for helping to push this legislation
through and bring it forward to this Committee.
I was concerned to hear some of the background that you
mentioned in your testimony. And my understanding is that the
Shivwits Band has seen collateral damage from the Lawrence
case, this 10th Circuit case. Can you talk a little bit about
how that has affected the Tribe, and what the fallout from that
case was, and what it meant for you from an economic
development standpoint, and what it meant for how your Tribe
would deal with outside investors, and how you work with
outside investors?
Oh, if you could hit the talk button there.
Ms. Gonzales. I can speak to a little bit of what I do
know, but as for all the legal aspects I would have to refer
that to my legal so that he would be able to answer you
correctly so that you get all the information.
But on the other hand, you know, as we watched the growth
of outside of our reservation with St. George and other areas,
having your hands tied and not being able to have outside
investors come in to be able to want to start a business on our
lands or with our people to help them grow economically which
would mean jobs and so much more for our people, but a lot of
it we have had to turn down. And it is not what we are able to
gain right now, but what we have had to turn down with whether
it be solar projects, a cancer medical center, a golf course,
different opportunities that have come to our reservation that
we have had to turn down and turn away because we are just not
set up that way, you know?
And we want to be able to put ourselves in a position not
just for this council, but for the councils after me. We always
talk about how our kids are going to be sitting in our places 1
day because they are our future, and they are the ones that are
going to be making these decisions for us. So in order to do
that, we feel like when we set goals, we don't just set them
for today, but we set them for tomorrow, a week from now, 5
years, 10 years, 20 years down the road, and this is what is
going to help them get there, to make that decision for
themselves, for their people, in making those important
decisions.
Mr. Hurd. Wonderful. Thank you very much, Chairwoman
Gonzales.
Mr. Shepherd, a question for you. In your testimony you
mentioned the long delays and inconsistencies with the BIA
mortgage process. I think you talked about it as being like a
black hole, and how frustrating that is for tribal members. Can
you talk about what those experiences have been like for tribal
members?
And can you tell us, do you know what is the average time
frame for a tribal member to obtain a mortgage? And practically
speaking, what does that mean for members of your Tribe?
Mr. Shepherd. Thank you, Chairman Hurd, that is a great
question.
Here is an example. Here is one scenario of many, right?
Some Tribes have stronger relationships with the BIA because
maybe a former person in their internal house was from the BIA.
But that shouldn't be a reason why there are delays. There
should be some consistency. And that is all we are striving
for, is to find exactly that right there, is that consistency.
Since I have been part of the coalition for the past 6
years now, it is hard, especially for our smaller sister
Tribes,to hear these delays of up to 5 years, which is
ridiculous. We are fortunate here in Sisseton that we have a
BIA superintendent in our tribal administration building that
we can stomp on the ground there and get his ear, and get
someone over to Aberdeen, which is the regional office for us.
But that is, you know, 80 miles. But some people are hours
away, right? They don't have that opportunity.
It is time to just find that consistency, common ground for
every Tribe, not just certain Tribes.
Mr. Hurd. Great. Thank you very much, Mr. Shepherd, for
that.
And I want to commend my colleague from South Dakota, Mr.
Johnson, on this important piece of legislation. This is
addressing a problem that should not be there, and that
disparity between Indian Country and outside of Indian Country
is something that is seriously problematic, I know for your
constituents and others, as well, across the country. So I
think this is a good piece of legislation.
My time is about to expire so I am going to yield back. And
at this time I will recognize the Ranking Member from
Washington, Ms. Randall, for 5 minutes.
Ms. Randall.
Ms. Randall. Thank you, Mr. Chair.
As I mentioned earlier, I am proud to be leading the Lower
Elwha Klallam Tribe Project Lands Restoration Act along with
Senator Cantwell, and I am also very grateful for the work from
Representative Kilmer did on this policy while he served.
This bill would transfer those three parcels of land
totaling more than 1,000 acres to BIA to be held in trust for
the Tribe, and additionally, two dams along the Elwha River
will be demolished allowing the Tribe to continue the work to
restore the river and recover Pacific salmon and Chinook, among
a number of other native fish that are essential to our way of
life, and certainly to the Lower Elwha.
Chairwoman Charles, you have served your Tribe as
Chairwoman for more than two decades. And detailing your
testimony, the work that went into dam removal and the Tribe's
effort to restore the Elwha River and its salmon fisheries, I
wanted to give you a little bit more time just to expand on the
importance of this legislation and what it means to the Tribe
and the ecosystem restoration that you plan to do.
Ms. Charles. Thank you for that.
I go back to thinking about what our elders have told us as
I was growing up. This is something that we all inherited
within our community, and the challenges that we are faced
with, the time immemorial that takes place with us.
The challenges that our elders had just to fish in the
river in their earlier years, the stories that we were told of
how they were able to see the Chinook runs so plentifully, that
they were able to walk on the backs of the Chinook runs in the
earlier years. The challenges that we have had with our
ancestors that were buried in certain locations along the river
itself, and having the opportunities to go up and, like I
mentioned earlier, that we hiked up into the creation site.
That is very spiritual and cultural for our generations to
come, and not only for us but just to go up there and have that
feeling in the visual of what that village looked like that was
under real water for 100 years, to be able to come back to our
creation site and spiritually be back involved in it.
The endurance that we have taken to our youth and being
able to publicly teach our youth, our kids in the public
schools, to be able to develop curriculums to teach not only
our own kids and others and non-natives to have the opportunity
to hear the history of who we are and where we come from.
It is really important because of the salmon runs that we
had lost, but having the ability to see the work that our crews
and our staff are doing to ensure that the salmon runs are
coming back. And they are, they are. And being able to provide
salmon for our families, but also to put them back into the old
smokehouses, to be able to bring the traditional cultural
values back to our communities and the surrounding communities.
It does not only benefit the Tribe, but it also benefits
the surrounding communities just as well on those parts of it.
So it is an opportunity for the growth, it is an opportunity
that we are looking for the ecosystem. It is an opportunity for
us to restore and rebuild what was damaged by the dams itself,
and having the growth and seeing what has been acknowledged to
this day is there are so many words that could be said that so
many times we are speechless because of what we have witnessed.
Seeing the wildlife come back, seeing the fish come in,
seeing the opportunities for that growth for our future
generations, and your future generations, and that is something
that we really cherish and have those abilities to witness in
my lifetime. The elders that came back here to testify in their
lifetime were not there to witness on that groundbreaking day
in 2011, and those are some things that we will cherish, and I
will cherish for the rest of my life.
[Speaking Native language.] Thank you.
Ms. Randall. Thank you so much.
And Mr. Chair, I ask for unanimous consent to enter into
the record a letter of support for this work from the National
Parks Conservation Association.
Mr. Hurd. Without objection.
[The information follows:]
National Parks Conservation Association
May 20, 2025
Re: NPCA Position on Legislation Before the Subcommittee on Indian and
Insular Affairs
Dear Representative:
Since 1919, National Parks Conservation Association (NPCA) has been
the leading voice of the American people in protecting and enhancing
our National Park System. On behalf of our 1.6 million members and
supporters nationwide, we write to share our thoughts on select
legislation ahead of a hearing in the Committee on Natural Resources
Subcommittee on Indian and Insular Affairs scheduled for May 21, 2025.
H.R. 2388--Lower Elwha Klallam Tribe Project Lands Restoration Act:
NPCA supports this legislation to transfer lands at Olympic National
Park from the National Park Service to the Lower Elwha Klallam Tribe in
Washington state. The United States government committed to
transferring these lands, which include important cultural and natural
sites, in the Elwha River Ecosystem and Fisheries Restoration Act of
1992. This Act will fulfill that longstanding commitment and empower
the Tribe to continue its successful work to restore natural areas and
invest in salmon recovery in the Elwha River watershed.
Thank you for considering our views.
Sincerely,
Christina Hazard,
Legislative Director
______
Ms. Randall. Thank you.
Mr. Hurd. Without objection.
Ms. Randall. Thank you so much. And the letter expresses
support from the association's 1.6 million members in
fulfilling this long-standing commitment and empowering the
Lower Elwha.
With just a few seconds left, I will yield my time so that
we can continue this work. Thank you.
Mr. Hurd. The gentlewoman yields. The Chair now recognizes
the gentlewoman from Utah, Ms. Maloy, for 5 minutes.
Ms. Maloy.
Ms. Maloy. Thank you, Mr. Chairman.
My colleague from South Dakota with his strong voice
apologized earlier for his abysmal grasp of the Dakota
language. I feel like I have to apologize for my abysmal
ability to spit out words in English this morning, but I
appreciate you being here.
Chairwoman Gonzales, do you feel like this legislation
sufficiently helps ensure the Shivwits Band of Paiutes retains
its sovereign immunity?
Ms. Gonzales. I definitely do with all my heart. I believe
that our sovereignty is very important to the government, as
well as to our people. And people like yourself understand how
important that means to our people to be sovereign as a Tribe,
when many other Tribes out there have not had that, or are
trying to get it, and yet our Shivwits Band of people feel
very, very proud that we do have that. And that is one thing
that I will always be thankful for, that you guys have
recognized and always respected our sovereign immunity for our
people. So yes, thank you.
Ms. Maloy. And thank you. You have already explained it a
little bit to Mr. Hurd, but can you just elaborate on why it is
so important for the band to have the ability to lease the land
that is being held in trust?
Ms. Gonzales. Yes. I know I constantly always talk about
our future, but what it definitely means is that those who come
to our table, that we are able to actually sit down and have a
really good conversation. When we get to that point of when
they say, you know, how long are we able to lease this land,
and how far can this project go, and, what does it entail, we
are able to continue those talks instead of saying: ``you know
what? that is about the best that we could do.'' and they think
about it, and they are gone.
Well, this time it will mean that economic development
could come to our people and last longer than just 5 or 10
years, that it will mean that this will be something special
for them that, not only mean jobs for our people, but it also
means housing. It also means being able to pour into our
scholarship fund for those who want a higher education. It also
means that they will be able to have someplace to come back to
with a community center that will have, everything up and going
for them, whether it be emergency management or whatever else
that we are able to put in place for them.
But we are always talking about our children and our
future, and our scholarship program is one thing that I am
really proud of that I feel that we would really, really be
able to have it go even further for those who would like to
reach those goals. And that is where we would like to be able
to put some money in, is into our children.
Ms. Maloy. Thank you. And you said that you are always
talking about the future. I think that is what makes you a good
and effective leader for your people.
I have got almost 2 minutes left. Do you just want to
outline for the Committee what you see as the future of the
Shivwits Band?
Ms. Gonzales. Yes. What I see for our future is that we
have homes for everybody. We have homes for our elders. We have
homes for our younger youth that are growing up that are going
to school, that they have some place to come back to. What it
means is that we are able to maybe have a rehabilitation center
for those who are on drugs or alcohol. It is very strong on our
reservation, and they have no place to go. What it means is
that people on our reservation that are looking for jobs, that
they have those. What it means is that we are able to stand
strong and independent and be proud of who we are, that we have
things on our reservation that are going to help us get to
where we need to be as regular people, just like everybody
else. That is what it means to me.
Ms. Maloy. Thank you for being willing to share that. I
know that is really personal, and I can see that you are
emotional about it, but I think it is helpful for us as a
Committee to hear that from you.
Ms. Gonzales. Thank you.
Ms. Maloy. And it is an honor to be part of helping clear
some of the obstacles to get you to that future.
Thank you for traveling here. Thank you for testifying.
And with that, Mr. Chairman, I yield back.
Mr. Hurd. The gentlewoman yields. The Chair now recognizes
the gentleman from Utah, Dr. Kennedy, for 5 minutes.
Dr. Kennedy.
Dr. Kennedy. Thank you, Mr. Chair. It is an honor to be
here, and I applaud my colleagues for these outstanding bills,
and I will particularly point to Congresswoman Maloy.
Thank you for working with these outstanding people in our
State to try to move the agenda forward, which for generations
has been impeding their capacity to progress.
So Madam Chair Gonzales, I had a few questions for you to
highlight some of the compelling testimony that you have given
to us today. Thank you for being here, and thanks to all of our
witnesses. These are really important issues that we are
working on.
But we had a good conversation yesterday, and I am
interested in further description from you about the
jurisdictional issues your Tribe faces that stunt the economic
development in your area, particularly the long-term leases.
Could you clarify that? Because all of this is going on the
record as to why we should pass this bill ultimately through
the House and the Senate.
So can you tell me more about the long-term leases and how
this bill that Congresswoman Maloy is proposing, that I am
happy to co-sponsor, how would that help in long-term leases
and other economic development opportunities?
Ms. Gonzales. Yes. How that would definitely be able to
help is that when we have those potential offers that come to
our table, those long-term leases, for an extended period of
time are kind of what we are looking for, and that is definite
income that is coming into our people. That it is not something
that is going to end in the short term.
Along with that comes jobs, but that definitely will mean
that we are able to sit down at the table and be able to talk
about the leases that we do have, where they are at, and the
people that come into business with us feel like maybe they
need to be heard maybe in a court. We want to make sure that we
are able to give them that opportunity because when you talk to
people, and see where they are coming from, and being open
minded, that they want to be able to know that they are being
heard fairly. That is very important to anybody. But anybody
who is going to come on our land and want to do business with
us, we want to make sure that we treat them just like people
like we would want to be treated.
Dr. Kennedy. Absolutely.
Ms. Gonzales. To me, that is giving our word, and our
native people's word means a lot.
Dr. Kennedy. I am excited about that leveling of the
playing field, giving equal access to justice, which is a big
part of what this is attempting to do. So I am grateful for
that.
Ms. Gonzales. Yes.
Dr. Kennedy. The economic development, as well, the long-
term leasing, the capacity for an investor to say, I haven't
got a long period of time for me to recoup my investment. That
is a vital aspect of this, as well. So I am actually pleased to
be party to this important policy.
But can you tell me more, Madam Chair Gonzales, about
missed economic opportunities in your period of time and
service and leadership to your Tribe? What sort of lost
economic opportunities can you relate to us that you have
experienced?
Ms. Gonzales. Well, in my last term I was privileged to
work on a solar project for our band. And we looked at the
potential areas of where we would like to have it and, all the
great benefits and things that were going to come out of it,
and what we were going to have to come in the middle for and
work on.
But when it came time to how long, and the term, and
because a solar project isn't small, it is pretty huge. And we
can't say: ``well, we could only do this for 25 years.'' That
is kind of not what they are looking for and not what we are
looking for, and, they want to be able to have a commitment.
And we cannot give them that commitment. And unfortunately they
pulled out.
Dr. Kennedy. Right.
Ms. Gonzales. They found someplace else to go that was
willing to work with them, and they left.
Dr. Kennedy. And potentially, millions of dollars were
taken from the economic opportunities of your Tribe and your
people.
Ms. Gonzales. Correct.
Dr. Kennedy. Yes.
Ms. Gonzales. Yes.
Dr. Kennedy. Thank you for relaying that, and I do believe
this bill actually is going to help address some of those
concerns so when opportunities knock in the future on the door
of your people, then those opportunities can be potentially
realized instead of let go. So I am excited about that.
Ms. Gonzales. Thank you.
Dr. Kennedy. Vice Chair Shepherd, thank you also for your
testimony. You talked about the lengthy and troublesome process
at the Bureau of Indian Affairs. Can you tell me more about
what the BIA has said about their reasons for their delays as
you have worked with them?
Mr. Shepherd. A lot of times we refer to the BIA as the
clock watchers, because time is not of the essence to them.
Another scenario I want to provide to this, speaking on
this lens here, and thank you for acknowledging that, Mr.
Kennedy, is say Grandma passes away, and the home goes down to
the grandson or whoever. And now the grandson or whoever is
going to take over the successor of that home, the lease and
the mortgage have to match. Where is the delay at the BIA? And
sometimes that can take up to 5 years, like I provided in my
testimony.
Dr. Kennedy. Yes, entirely inappropriate.
Mr. Shepherd. So then, if those timelines aren't met,
additional costs start to add up.
Dr. Kennedy. I am grateful that we can work on that, as
well. It is unacceptable for that sort of performance.
Mr. Chair, thank you for the time. I yield back.
Mr. Hurd. The gentleman yields. The Chair now recognizes
the gentleman from Alaska, Mr. Begich, for 5 minutes.
Mr. Begich.
Mr. Begich. Thank you, Mr. Chairman. I have a question to
Vice President Harris.
Vice President Harris, one of the things that stands out
about this legislation is how it supports better connectivity
between Cape Fox parcels. From an Alaskan perspective,
improving access is a lifeline for economic development and
cultural continuity. Can you describe how the access corridor
created by this conveyance will help Cape Fox develop
infrastructure, such as roadways or utility corridors, and what
kind of economic or community uses you envision emerging from
the improved connectivity?
Mr. Harris. Thank you for that question, Congressman.
Our community has 14,000 years of documented history on the
site. We are very proud of the matriarchs in our community. One
of those is known as the chief of all women, whose pole stands
in Pioneer Square, from our village. And they taught us to look
for completing interests, not competing interests. And these
completing interests are all around us if we are willing to
open our eyes, ears, and hearts, and minds to each other. We
don't want to compete with the City of Ketchikan; we want to
complete with them by stabilizing that grid. This parcel of
land allows us to do that.
Too often, we have seen dams and hydro projects built where
they are competing with the salmon. Fog Woman, who taught
completing interests, she was a matriarch of the woman in
Pioneer Square in Seattle, taught that if we were to take a
salmon out of the mouth of the river, we had a moral, ethical
obligation to finish the journey for that salmon and, in doing
so, keep that cycle alive not just for that generation, but for
generations to come. That process included taking the eggs,
putting them up above the barrier, taking the carcasses that we
weren't going to eat to feed the next generation of microbes
that fed those salmon. It was critical so that those salmon
would have the strontium signature from those rivers to know
where to come back to. That is what has been missing.
And we look at this small hydro project at 9 megawatts to
be an opportunity for us to re-seed those rivers, so that we
can go after the 600 megawatts on the Susitna River, and not be
afraid of losing the salmon. If we don't get food right, what
do we do to make up for not getting food right? What we do is
we build more prisons. We build more homeless shelters. We
build more orphanages because we didn't get food right.
Matriarchs are important for teaching us completing
interests, so we know how to care for each other.
Mr. Begich. Thank you. And I think you raised such an
important point. We talk across all these bills that we are
talking about today about obstacles, and Representative Maloy
mentioned we are trying to remove obstacles.
We are trying to remove the barriers that allow us to
contribute to completing interests, as you highlight. And we
want to make sure that we are a singular people, that we have
the ability to work together, as we are talking about
Chairwoman Gonzales's priorities for making sure that her
people are able to interact with and make commitments with the
broader community, and I think that is what we are all trying
to do across these bills is making sure that we are ironing out
the wrinkles, eliminating the barriers, that we are making sure
we are removing the obstacles, that prevent communities like
our community in Saxman, Alaska from being a part of the
broader community.
And we certainly recognize that you are part of the broader
community. You are an integral part. You are the original
community of our lands, and I am proud to have you here. Thank
you for making the long journey from Alaska, Vice President
Harris. It is not an easy one. We make it all the time. But it
is important that you are here, it is important that your
interests are represented. And I feel very good about being
able to move this important legislation and these other
important pieces of legislation through to completion in the
119th Congress.
And with that I yield back.
Mr. Hurd. The gentleman yields. The Chair now recognizes
the gentleman from South Dakota, Mr. Johnson, for 5 minutes.
Mr. Johnson.
Mr. Johnson. Thank you, sir.
Mr. Shepherd, I want to pick up where Chair Hurd left off
about some of these delays within BIA. Now, there is this BIA
mortgage manual that provides some guidelines for how quickly
these processes should be completed. In your experience, does
BIA adhere to those guidelines?
Mr. Shepherd. Thank you, Dusty, from our home State,
Representative.
I think they hear them, but the action behind them doesn't
match the deaf ears. So the solution to that, is to put time
frames on them in their manual. Let's revise that. Let's make
some amendments to that, so that the actions meet the time
frames that are necessary to for growth, for prosperity, and
our people to live in dignity, then.
Mr. Johnson. You have an understanding of where the delays
happen? Like, where does something get high centered? Is there
good transparency in the process? Can you understand where the
piece of paper got lost?
Mr. Shepherd. Again, thank you, Representative Johnson, for
that question.
I don't think, on our side we can locate that, exactly from
this desk to this desk to this desk, where that delay is. We
always hear that they are short-staffed. That is about all we
hear.
Mr. Johnson. I would imagine you have had conversations
with families that get frustrated with not only the delay, but
also not understanding the cause of the delay, and also not
having any sense of when the delay might be resolved.
Mr. Shepherd. Again, great question, Representative
Johnson. And to be able to say that to our people it is very
frustrating. And the end result sometimes is that the family
gives up, and that is not the solution.
Mr. Johnson. So do you know of instances where families
have given up?
Mr. Shepherd. Oh, yes. Definitely. And that is just one
scenario. You know, we have multiple resources, from the
government to make home ownership possible through competitive
grants and the HIP program and things like that. We have been
through that scenario before in the past 5 years with some of
our tribal members, not just on our reservation, but within our
own home State, of all nine reservations. We have seen too
often.
Mr. Johnson. Mr. Chairman, I want to make clear I
understand the broad responsibilities that we place on BIA with
regard to our trust and treaty obligations. I get it. They have
got a lot to do. And yet, clearly, this is an area that is
getting done particularly poorly.
And one of the things that H.R. 2130 would do is create a
specialized position of someone within the Bureau to bird dog
these issues, and to improve the kind of communication so that
Mr. Shepherd and the families that he is working with, and the
Home Ownership Coalition is working with, have a better sense
of where the delay is and how do we eliminate the delay.
Sometimes just having somebody who is an expert can help things
move along.
I will just close by noting this. It is just tragic that
there are families, as Mr. Shepherd has said, who are in the
position of giving up. They can't get an answer about when BIA
can process that mortgage paperwork. And after months and
months and months of delay, they just have to move on, not
purchasing their home. What a terrible outcome. We can do
better. H.R. 2130 would make sure that we do.
With that I would yield back.
Mr. Hurd. The gentleman yields. At this time the Chair
recognizes the gentleman from Puerto Rico, Mr. Hernandez, for 5
minutes.
Mr. Hernandez.
Mr. Hernandez. Thank you. I would like to focus on
Representative Randall's bill, and if anyone here could speak
to how that would build on the success of restoring our
ecosystem and fisheries in the Elwha River.
Ms. Charles. How are we restoring the Elwha River?
Mr. Hernandez. Yes.
Ms. Charles. So right now we have a good crew that have
been working on the Elwha River, even before the dams were
removed. We started that process of restoration and
transferring salmon to locations above the dams, as well as
along tributaries for the enhancements for the protection of
the river, but also identifying to the factors of what the
needs were with working with the other agencies that were
involved, whether it was NOAA fisheries, the National Park
Service, and other areas to help with the tributaries of the
river itself. It is still going on today, and it has been for
many years through that process.
Mr. Hernandez. And can you speak to the relationship
between stewardship of the lands under this bill and tribal
sovereignty in regard to your Tribe?
Ms. Charles. So with the tribal sovereignty itself, it is
something that we believe that we have the rights on with the
usual custom ground areas, territories within our range, our
regions that we have within ourselves through that process. It
is something that we have governed ourselves and worked with
other government agencies to collaborate, to partner, to deal
with contracts, to deal with roles and responsibilities that
not only do we play, but also other agencies that are involved
with the areas within our territories.
Mr. Hernandez. Oh, great. Thank you.
Do you want additional time?
No? OK. Well, with that I yield back.
Mr. Hurd. The gentleman yields. I want to thank each of our
witnesses for their valuable testimony, and thank all of our
members, as well, for their questions.
Members of the Committee may have some additional questions
for the witnesses, and we would ask that you respond to those
in writing. Under Committee rule 3, members of the Committee
must submit questions to the Committee clerk by 5 p.m. on
Tuesday, May 27, 2025. The hearing record will be open for 10
business days for these responses.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 11:17 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Hurd
Statement for the Record
U.S. Department of the Interior
H.R. 2388, H.R. 3073, H.R. 2130, and H.R. 2815
Chairman Hurd, Ranking Member Leger Fernandez, and Members of the
Subcommittee, the Department of the Interior (Department) is pleased to
provide this statement for the record on the following legislation:
H.R. 2388, Lower Elwha Klallam Tribe Project Lands Restoration Act;
H.R. 3073, Shivwits Band of Paiutes Jurisdictional Clarity Act; H.R.
2130, Tribal Trust Land Homeownership Act of 2025; and H.R. 2815, Cape
Fox Land Entitlement Finalization Act.
H.R. 2388, Lower Elwha Klallam Tribe Project Lands Restoration Act
H.R. 2388 would place approximately 1,082.63 acres of Federal lands
managed by the National Park Service into trust for the benefit of the
Lower Elwha Klallam Tribe and become part of the Tribe's existing
reservation. The bill prohibits gaming on the land under the Indian
Gaming Regulatory Act.
The parcels to be placed into trust were part of the Elwha
Hydroelectric Project. The Elwha River Ecosystem and Fisheries
Restoration Act granted the National Park Service jurisdiction of the
lands and management of the excess lands is costly in administration,
liability, resource management, and law enforcement. Sections of the
lands that include the Elwha River must be managed in accordance with
the Wild and Scenic Rivers Act with certain exceptions subject to the
Elwha River Ecosystem and Fisheries Restoration Act.
The bill requires the Secretary of the Interior (Secretary) to
conduct a survey to define the boundaries of the land taken into trust
and gives the Secretary authority to correct minor errors and make
minor boundary adjustments consistent with the Bureau of Indian Affairs
(BIA) defined procedures for transferring lands into trust status per
25 CFR Part 151. H.R. 2388 also ensures that the land transfer does not
affect the treaty rights of the S'Klallams Indians under the Treaty of
Point No Point.
Through its plenary authority, Congress can direct the Secretary to
accept and administer lands to be held in trust for the benefit of a
Tribe through legislation. Acquisition of land in trust for the benefit
of Indian Tribes is essential to Tribal sovereignty and empowers Tribal
self-determination in the use of Tribal lands to best serve their
communities and create economic growth. The Department supports
conveying these lands into trust for the Lower Elwha Klallam Tribe.
H.R. 3073, Shivwits Band of Paiutes Jurisdictional Clarity Act
H.R. 3073 confers jurisdiction on the State of Utah over certain
civil cases involving the Shivwits Band of Paiutes (Band). This
legislation will ensure the Shivwits Band and third-party businesses
will have access to state and Federal court forums to resolve contract
disputes.
The legislation maintains the Band's sovereign immunity unless the
Band explicitly waives it. This protects the Band from unconsented
lawsuits while allowing them to agree to Utah State court jurisdiction
for contracts and agreements they participate in. This legislation also
expands existing law so the Band can agree to leases of their lands for
extended terms to provide the Band with more opportunities for economic
development.
The Department takes no position on the grant of jurisdiction to
the State of Utah. However, the Department supports the authority for
the Band to enter into leases for 99 years. Tribal governments are in
the best position to determine the duration of such leases in pursuit
of economic development.
H.R. 2130, Tribal Trust Land Homeownership Act of 2025
H.R. 2130 would impose a series of statutory requirements on the
BIA related to the processing and review of mortgage packages. This
legislation would codify current processing deadlines for mortgages;
require an annual report to be submitted to Congress regarding the
mortgages reviewed by the BIA; establish a Realty Ombudsman position
reporting directly to the Secretary; and provide access to the
Department's Trust Asset and Accounting Management System (TAAMS) for
relevant agencies and Tribes.
The Department shares Congress' interest in ensuring that mortgage
packages are reviewed and processed in a timely manner. We look forward
to working with the sponsor and Subcommittee to ensure that the bill
aligns with the Administration's priorities to enhance government
efficiency. Another concern the Department has with H.R. 2130 is the
mandate for read-only access to TAAMS for the Department of
Agriculture, Department of Housing and Urban Development, and
Department of Veterans Affairs, as well as Tribes. The BIA currently
provides limited TAAMS access to Tribes who have contracted or
compacted certain trust programs and relevant Department agencies after
the clearance of a background check to protect personally identifiable
information. The Tribes with TAAMS access may only access information
related to their Tribal members and the Tribe's ownership and for those
programs that are contracted or compacted. Access to TAAMS should
continue to be limited to the information related to the Tribal members
and the Tribe's own ownership for those Tribes who have contracted or
compacted a trust program and certain Federal agencies. Accordingly,
access to TAAMS by the Department of Agriculture, Department of Housing
and Urban Development, and the Department of Veterans Affairs must also
be limited to the mortgage information relevant to their particular
agency. Access to TAAMS is limited and the BIA needs to ensure that
access to information subject to the Privacy Act will remain limited.
The Department supports the intent of H.R. 2130 and looks forward
to working with the sponsor and the Subcommittee to provide technical
assistance.
H.R. 2815, Cape Fox Land Entitlement Finalization Act
H.R. 2815 would waive the core township requirement for land
selection under the Alaska Native Claims Settlement Act (ANCSA) for the
Cape Fox Corporation, the ANCSA Corporation for the Native Village of
Saxman. Under the bill, Cape Fox would not be required to receive the
approximately 185 acres that the corporation previously selected in the
township where Saxman is located pursuant to ANCSA. Instead, Cape Fox
would be able to select lands outside of its ANCSA-established exterior
selection boundary, approximately 180 acres within the Tongass National
Forest. In addition, the bill requires that Cape Fox submit its
selections to the Secretary via written notice within 90 days of
enactment. The Bureau of Land Management (BLM) would then be required
to convey the selected surface lands to Cape Fox and the subsurface
estate to the Sealaska Corporation as soon as practicable. These
conveyances would fulfill Cape Fox's entitlement under ANCSA.
ANCSA was enacted in 1971 to settle aboriginal land title claims
with Alaska Natives. ANCSA section 12(a)(1) requires Alaska Native
Villages to select Federal lands in the township in which any part of
the village is located. The selection process was completed in the
early 1970s, and the BLM continues to work through some of the more
complicated conveyances and patents. While the BLM is currently ready
to convey Cape Fox's remaining entitlement, the corporation has stated
that the selected Federal lands in the township where the village
falls--i.e., its ``core township''--are unsuitable and that it is
seeking this legislative solution.
Based on an initial review of the legislative text and legal land
descriptions, there appear to be areas identified for conveyance that
are currently encumbered by a Federal Energy Regulatory Commission
powersite classification. We recommend that the legislation clarify
whether or not the Cape Fox conveyance is subject to this existing
encumbrance.
The Department supports fulfilling Cape Fox's remaining
entitlement. The Department defers to the U.S. Department of
Agriculture regarding disposition of lands managed by Forest Service
under the bill. The Department would like to work with the Sponsor on
technical edits to clarify the existing land status and description of
the lands to be conveyed to Cape Fox and Sealaska.
Once these items are resolved, the Department stands ready to
complete these conveyances and looks forward to fulfilling Cape Fox's
remaining entitlement under ANCSA.
Conclusion
Thank you for the opportunity to provide this statement for the
record.
______
Statement for the Record
U.S. Department of Agriculture and U.S. Forest Service
H.R. 2815--Cape Fox Land Entitlement Finalization Act of 2025
Chairman Hurd, Ranking Member Leger Fernandez, and Members of the
Subcommittee, thank you for inviting the U.S. Department of Agriculture
(USDA) Forest Service, to discuss the Cape Fox Land Entitlement
Finalization Act of 2025.
The USDA Forest Service manages 193 million acres of national
forests and grasslands, including lands in Alaska that are in proximity
to Alaska Native Corporation lands. The Forest Service works closely
with the Alaska Native Corporations and Tribes to coordinate on land
stewardship, including forest management, wildfire mitigation, resource
restoration, and cultural preservation efforts.
H.R. 2815, ``Cape Fox Land Entitlement Finalization Act of 2025''
H.R. 2815 would allow the Cape Fox Corporation (Cape Fox), a
village corporation established under the Alaska Native Claims
Settlement Act (ANCSA), to obtain its remaining land entitlement under
ANCSA from portions of the Tongass National Forest that differ from its
existing selection in the Tongass which is currently pending conveyance
by the Bureau of Land Management (BLM).
As proposed, the Secretary of the Interior is directed to convey to
Cape Fox the surface estate to an approximately 180-acre tract along a
2.5-mile stretch of eastern shoreline on the west side of George Inlet
on Revillagigedo Island within the Tongass National Forest, Ketchikan-
Misty Fjords Ranger District. The Sealaska Regional Corporation would
be conveyed the subsurface interest of the parcel.
The parcel proposed for conveyance (as defined section 3(b) of the
bill) connects two parcels of private land owned by Cape Fox and
generally follows the boundaries of a transmission line corridor
labeled as a right of way in Federal Energy Regulatory Commission
(FERC) license (No. 11393) for the Mahoney Lake Hydroelectric Project.
The project is licensed but has not been constructed. If constructed,
the transmission line corridor would likely be used to connect the
Mahoney Lake site to the existing Beaver Falls Power Grid.
The USDA Forest Service currently has the legal authorities
necessary to permit the City of Saxman, the FERC license holder, to use
NFS lands for the construction of a road and transmission line, and
other uses of NFS lands associated with the possible hydroelectric
project.
With one minor exception, the 2.5-mile stretch of coastline of the
proposed parcel is the only federally owned coastline on the west side
of George Inlet, which provides unrestricted access to the National
Forest System lands further inland. The Forest Service also welcomes a
discussion regarding a reservation of the right-of-way identified in
the FERC license associated with the Mahoney Lake Hydroelectric Project
to effectuate the sponsor's intent.
The Forest Service supports this bill. On issues related directly
to the conveyance process, the Forest Service defers to the BLM as the
Federal agency tasked with transferring to Alaska Native Corporations
title to lands pursuant to ANCSA.
Conclusion
That concludes my testimony. Again, I thank Chairman Hurd, Ranking
Member Leger Fernandez, and members of the Subcommittee for the
opportunity to present USDA's views on this proposed legislation. I
would be happy to answer any questions you may have.
______
Submissions for the Record by Rep. Begich
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