[Congressional Record Volume 140, Number 65 (Monday, May 23, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 23, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
   MAKING CERTAIN TECHNICAL CORRECTIONS TO VARIOUS FEDERAL STATUTES 
                       AFFECTING NATIVE AMERICANS

  Mr. RICHARDSON. Mr. Speaker, I move to suspend the rules and concur 
in the Senate amendment to the House amendment to the Senate bill (S. 
1654) to make certain technical corrections.
  The Clerk read as follows:

       Senate amendments to House amendment:
       Page 1, strike out all after line 2 over to and including 
     line 10 on page 2 of the House engrossed amendment and 
     insert:
       (a) Environmental Costs.--Section 7 of the Northern 
     Cheyenne Indian Reserved Water Rights Settlement Act of 1992 
     (Public Law 102-374, 106 Stat. 1186 et seq.) is amended by 
     adding the following new subsections (f) and (g) and 
     redesignating the succeeding subsections accordingly:
       ``(f) Environmental Costs.--All costs associated with the 
     Tongue River Dam Project for environmental compliance 
     mandated by Federal law and fish and wildlife mitigation 
     measures adopted by the Secretary are the sole responsibility 
     of the United States. Funds for such compliance shall be 
     appropriated pursuant to the authorization in subsection (e), 
     and shall be in addition to funds appropriated pursuant to 
     section 7(b)(1) of the Act. The Secretary is authorized to 
     expend not to exceed $625,000 of funds appropriated pursuant 
     to subsection (e) for fish and wildlife mitigation costs 
     associated with Tongue River Dam construction authorized by 
     the Act, and shall be in addition to funds appropriated 
     pursuant to section 7(b)(1) of the Act.
       ``(g) Reimbursement to State.--The Secretary shall 
     reimburse Montana for expenditures for environmental 
     compliance activities, conducted on behalf of the United 
     States prior to enactment of this subsection (g), which the 
     Secretary determines to have been properly conducted and 
     necessary for completion of the Tongue River Dam Project. 
     Subsequent to enactment of this subsection (g), the Secretary 
     may not reimburse Montana for any such environmental 
     compliance activities undertaken without the Secretary's 
     prior approval.''.
       (b) Authorizations.--The first sentence of section 4(c) of 
     the Northern Cheyenne Indian Reserved Water Rights Settlement 
     Act of 1992 (Public Law 102-374; 106 Stat. 1186 et seq.) is 
     amended to read as follows: ``Except for authorizations 
     contained in subsections 7(b)(1)(A), 7(b)(1)(B), and the 
     authorization for environmental compliance activities for the 
     Tongue River Dam Project contained in subsection 7(e), the 
     authorization of appropriations contained in this Act shall 
     not be effective until such time as the Montana water court 
     enters and approves a decree as provided in subsection (d) of 
     this section.''.
       (c) Effective Date.--The amendments made by this section 
     shall be considered to have taken effect on September 30, 
     1992.
       Page 4, line 15, before ``Section'' of the House engrossed 
     amendment insert: (a)
       Page 5, after the 4th unnumbered line of the House 
     engrossed amendment, insert:
       (b) Section 16 of the Act of June 18, 1934 (25 U.S.C. 476) 
     is amended by adding at the end of the following new 
     subsections:
       ``(f) Privileges and Immunities of Indian Tribes; 
     Prohibition on New Regulations.--Departments or agencies of 
     the United States shall not promulgate any regulation or make 
     any decision or determination pursuant to the Act of June 18, 
     1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any 
     other Act of Congress, with respect to a federally recognized 
     Indian tribe that classifies, enhances, or diminishes the 
     privileges and immunities available to the Indian tribe 
     relative to other federally recognized tribes by virtue of 
     their status as Indian tribes.
       ``(g) Privileges and Immunities of Indian Tribes; Existing 
     Regulations.--Any regulation or administrative decision or 
     determination of a department or agency of the United States 
     that is in existence or effect on the date of enactment of 
     this Act and that classifies, enhances, or diminishes the 
     privileges and immunities available to a federally recognized 
     Indian tribe relative to the privileges and immunities 
     available to other federally recognized tribes by virtue of 
     their status as Indian tribes shall have no force or 
     effect.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
Mexico [Mr. Richardson] will be recognized for 20 minutes, and the 
gentleman from Wyoming [Mr. Thomas] will be recognized for 20 minutes.
  The Chair recognizes the gentleman from New Mexico [Mr. Richardson].


                             general leave

  Mr. RICHARDSON. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
on the legislation now being considered.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New Mexico?
  There was no objection.
  Mr. RICHARDSON. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, S. 1654 makes certain technical amendments to various 
Federal statutes affecting native Americans. The bill makes technical 
amendments to six Federal statutes. Although the House has already 
passed this measure, there are two changes which were made in the 
Senate. There is a slight change to the first section regarding the 
Northern Cheyenne Water Settlement, which was done at the request of 
the Department of the Interior. There is also an amendment to the 
Indian Reorganization Act which I will discuss at great length.
  The first provision amends the Northern Cheyenne Indian Reserved 
Water Rights Settlement Act of 1992 to clarify provisions relating to 
environmental compliance and mitigation with regard to the repair and 
enlargement of the Tongue River Dam.
  The second provision amends the San Carlos Apache Tribe Water Rights 
Settlement Act of 1992 to correct an error in the text.
  The third section amends a provision included in the 1994 Interior 
Appropriations Act, the original provision cited the wrong section of 
the Higher Education Act.
  The fourth provision amends the White Earth Reservation Land 
Settlement Act of 1985 to authorize the Secretary of the Interior to 
make necessary corrections to the listing of allotments eligible for 
compensation pursuant to the Settlement Act.
  The fifth provision amends the Grand Ronde Reservation Act of 1988 to 
clarify that three additional parcels of land which are held in trust 
by the Federal Government for the benefit of the Grand Ronde Tribe are 
included as part of the tribe's reservation.
  Finally, the provision which was added by the Senate amends section 
16 of the Indian Reorganization Act of 1934 [IRA]. The purpose of the 
amendment is to clarify that section 16 of the Indian Reorganization 
Act was not intended to authorize the Secretary of the Department of 
the Interior to create categories of federally recognized Indian 
tribes. The Department of the Interior has interpreted section 16 to 
authorize the Secretary to categorize or classify Indian tribes as 
being either created or historic. According to the Department, created 
tribes are only authorized to the exercise such powers of self-
governance as the Secretary may confer on them.
  This distinction between historic and created Indian tribes was first 
presented by the Bureau of Indian Affairs in testimony before my 
subcommittee during hearings on H.R. 734, a bill to provide relief to 
the Pascua Yaqui Indian Tribe of Arizona. The Bureau of Indian Affairs 
took the position that the Pascua Yaqui Indian Tribe was a created 
Indian tribe and therefore did not have the inherent authority to 
regulate law and order on their reservation. Their position was not 
persuasive then nor is it persuasive today. There is no basis in law or 
policy for the manner in which section 16 has been interpreted by the 
Department of the Interior. Indian tribes exercise powers of self-
governance by reason of their inherent sovereignty and not by virtue of 
a delegation of authority from the Federal Government. Neither the 
Congress nor the Secretary can create an Indian tribe where none 
previously existed. Congress itself cannot create Indian tribes, so 
there is no authority for the Congress to delegate to the Secretary in 
this regard.
  The recognition of an Indian tribe by the Federal Government is an 
acknowledgement that the Indian tribe is a sovereign entity with 
governmental authority which predates the U.S. Constitution. The 
Federal Government has extended recognition to Indian tribes through 
treaties, Executive orders, a course of dealing, decisions of the 
Federal courts, acts of Congress and administrative action. Whatever 
the method by which recognition was extended, all Indian tribes enjoy 
the same relationship with the United States and exercise the same 
inherent authority.
  Section 16 was intended to provide a mechanism for the tribal 
adoption and Secretarial approval of tribal constitutions. The 
interpretation of section 16 which has been developed by the Department 
is not consistent with the principle policies underlying the IRA, which 
were to stabilize Indian tribal governments and to encourage self-
government. The effect of the Department's interpretation of section 16 
has been to destabilize Indian tribal governments.
  The Indian Reorganization Act [IRA] does not authorize or require the 
Secretary to establish classifications between tribes or to categorize 
them based on their powers of self-governance, and the Federal courts 
have consistently construed the IRA to have had no substantive effect 
on inherent tribal sovereign authority.
  The amendment to section 16 clarifies that the Indian Reorganization 
Act does not authorize or require the Secretary to establish 
classifications between Indian tribes. The amendment would void any 
past determination by the Department that an Indian tribe is created 
and would prohibit any such determinations in the future.
  The amendment is intended to prohibit the Secretary or any other 
Federal official from distinguishing between Indian tribes or 
classifying them not only on the basis of the IRA but also on the basis 
of any other Federal law. Other agencies of the Federal Government may 
have developed distinctions or classifications between federally 
recognized Indian tribes based on information provided to those 
agencies by the Department of the Interior. The amendment to section 16 
of the IRA is intended to address all instances where such categories 
or classifications of Indian tribes have been applied and any statutory 
basis which may have been used to establish, ratify or implement the 
categories or classifications.
  The amendment will correct any instance where any federally 
recognized Indian tribe has been classified as created and that it will 
prohibit such classifications from being imposed or used in the future. 
The amendment makes it clear that it is and has always been Federal law 
and policy that Indian tribes recognized by the Federal Government 
stand on an equal footing to each others and to the Federal Government, 
and that each federally recognized Indian tribe is entitled to the same 
privileges and immunities as other federally recognized tribes.
  The amendment will also remove what appears to be a substantial 
barrier to the full implementation of the policies of self-
determination and self-governance. The committee fully expects that the 
Department will act as promptly as possible after enactment of this 
amendment to seek out and notify every Indian tribe which has been 
classified or categorized as created that the classification no longer 
applies and to take any other steps which are necessary to implement 
the amendment.
  Mr. Speaker, there is great danger in a policy wherein the Department 
of the Interior and the Bureau of Indian Affairs are allowed to limit 
the inherent sovereign authority of Indian tribes by the Solicitor's 
pen. If carried to an extreme, the Solicitor could by fiat 
significantly erode tribal sovereignty through a series of opinions and 
carry out his or her own termination policy. With the exception of the 
framework imposed by the judicial branch, the formulation of Indian 
policy is virtually the sole province of the Congress and Indian 
tribes. The Congress has never acknowledged distinctions in or 
classifications of inherent sovereignty possessed by federally 
recognized Indian tribes. Tribal sovereignty must be preserved and 
protected by the executive branch and not limited or divided into 
levels which are measured by the Bureau of Indian Affairs and the 
Department of the Interior. We must not revisit the darkest period of 
Federal Indian policy by allowing the termination of tribal sovereign 
authority through the implementation of the Bureau of Indian Affairs 
policy distinction between historic and created Indian tribes.
  Mr. Speaker, all of the provisions in this bill are noncontroversial 
and supported by the administration. The bill enjoys broad based 
support. I urge my colleagues to support it, and urge that the House 
concur with the Senate amendments.
  Mr. Speaker, I reserve the balance of my time.
  Mr. THOMAS of Wyoming. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of S. 1654. Since the House has 
previously considered most of the provisions in this bill, and since 
the gentleman from New Mexico has admirably described the amendments 
made to it in the other body, I will be brief. As the gentleman has 
mention, the first amendment made in the other body clarifies a 
provision dealing with the Northern Cheyenne Indian Reserved Water 
Rights Settlement Act. The second, of much more interest to me, 
prohibits the BIA from distinguishing between federally recognized 
tribes as created or historic, and denying them certain authority based 
on those classifications.
  I have been greatly troubled by the recent trend on the part of the 
BIA in unilaterally removing Federal recognition from tribes and tribal 
leaders. The BIA's historic versus created dichotomy is, in my mind, 
simply another manifestation of this disturbing tendency. In a recent 
letter to Chairman Miller, the BIA indicated that it intends to 
differentiate between federally recognized tribes as being created or 
historic. The BIA has taken the position that created tribes do not 
possess all the powers of a sovereign tribal government: They cannot 
zone, regulate law and order, or tax. However, this whole convoluted 
theory is not mandated by Congress, but rather is the spawn of a 
questionable opinion of the Solicitor of the BIA. In my opinion, it 
runs counter to the well-established principal that a tribe retains all 
inherent authority which has not been explicitly divested by Congress. 
When Federal recognition was extended to the tribes the BIA now terms 
created, we gave absolutely no indication that they were to have 
anything less than full sovereign authority within the confines of 
existing Indian law. Yet now the BIA has unilaterally decided that they 
are not fully sovereign.
  Once again, congressional action has been necessary to correct this 
blunder. We recently passed H.R. 734, a bill designed to prohibit this 
distinction from being applied to the Pascua Yaqui people of Arizona. 
On April 14, I was pleased to cosponsor H.R. 4231, introduced by 
Chairman Richardson, to ensure that we do not have to do the same for 
the next historic tribe on the BIA's hit-list. The other body has added 
the language of H.R. 4231 as an amendment to S. 1654, a move I fully 
support.
  Mr. Speaker, I urge my colleagues to support S. 1654.
  Mr. Speaker, I yield back the balance of my time.
  Mr. RICHARDSON. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I would be remiss if I did not mention the role of the 
gentleman from Oregon [Mr. Kopetski] in the passage of the Grand Ronde 
provisions of the bill, as well as the gentleman from Montana [Mr. 
Williams] in the passage of the provisions relating to the Northern 
Cheyenne. I wish to thank the gentleman from Wyoming [Mr. Thomas] for 
his outstanding bipartisanship and assistance as we moved through many 
difficult native American issues, including recognition, Indian health 
care, and many others in this session.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New Mexico [Mr. Richardson] that the House suspend the 
rules and concur in the Senate amendment to the House amendment to the 
Senate bill, S. 1654.
  The question was taken; and (two-thirds having voted in favor 
thereof), the rules were suspended and the Senate amendment to the 
House amendment to the Senate bill was concurred in.
  A motion to reconsider was laid on the table.

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