[Congressional Record Volume 148, Number 121 (Monday, September 23, 2002)]
[Senate]
[Pages S9011-S9026]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT,
2003
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of H.R. 5093, which the clerk will report.
The legislative clerk read as follows:
A bill (H.R. 5093) making appropriations for the Department
of the Interior and related agencies for the fiscal year
ending September 30, 2003, and for other purposes.
Pending:
Byrd Amendment No. 4472, in the nature of a substitute.
Byrd Amendment No. 4480 (to Amendment No. 4472), to provide
funds to repay accounts from which funds were borrowed for
emergency wildfire suppression.
Craig/Domenici Amendment No. 4518 (to Amendment No. 4480),
to reduce hazardous fuels on our national forests.
Dodd Amendment No. 4522 (to Amendment No. 4472), to
prohibit the expenditure of funds to recognize Indian tribes
and tribal nations until the date of implementation of
certain administrative procedures.
Byrd/Stevens Amendment No. 4532 (to Amendment No. 4472), to
provide for critical emergency supplemental appropriations.
The PRESIDING OFFICER. Under the previous order, there will now be
debate on the Dodd amendment No. 4522 until 4:40, equally divided
between Senators Dodd, Inouye, and Campbell, or their designees.
The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, the amendment is offered on behalf of myself
and Senator Lieberman. I presume he will be coming to the floor at some
point. He has a strong interest in the amendment. I want to be notified
by the Chair when I have consumed 10 minutes, so I can leave time for
Senator Lieberman.
I begin by thanking my colleagues from Hawaii and Colorado. They were
very generous--they are all the time, but particularly last week--in
conducting a hearing on the subject matter that is the subject of this
amendment. They graciously listened to a series of witnesses from the
administration, from Connecticut, mayors from towns in Connecticut,
along with other interested parties on the subject matter generally of
the recognition process at the Bureau of Indian Affairs. So any
discussion of the matter before us
[[Page S9012]]
should begin with an expression of gratitude to both of these
distinguished Members of the Senate for their willingness to listen to
the case we presented.
Again, I express my gratitude to them. They are friends of mine, and
this is one of those awkward moments that can happen when good friends
find themselves on opposite sides of an issue.
Secondly, I had a good meeting last week with some of the national
representatives of the Native American community from Indian country
here in the Senate. I did state to them, which I will state here as
well, that I take great pride in the relationship I have with my Indian
constituents in Connecticut, as I have had around the country--on
numerous occasions, whether appearing in Window Rock, AZ, or with the
Gila River tribes, and others; with my good friend from Alaska, and
others; I take a great deal of pride in my strong support for the
Native American community.
What brings us here, and what Senator Lieberman and I are raising, is
the concern that we have over the present recognition process. It is a
concern that was not generated by my State alone. It was, in fact,
generated by a study done by the Government Accounting Office, backed
by representatives of the Bureau of Indian Affairs. In 2000, the
Assistant Secretary for Indian Affairs stated before the U.S. Congress
that the system was terribly broken and in need of repair. I don't know
of anyone who disagrees with that.
Now, there are suggestions on how best to repair this. The problem is
that while we are waiting for the repairs to occur, recognitions are
going forward. In many cases, of course, they will be proven to be
absolutely well-deserved, but others may not be. My concern is when
that happens, it not only does damage to the communities and others who
may be adversely affected by those decisions, but I argue just as
strongly that an adverse impact occurs as well on existing tribal
nations that have long sought recognition, and suspicions are raised
about the validity and credibility of the process. Those who have
received recognition I think are devalued as well. There are now
pending 222 recognition petitions before the Bureau of Indian Affairs.
I have put up a chart showing where they are in the country. Many
States, of course, have none; 37 States have at least 1 pending. In my
State there are 12. Understand the size of my State. It is about 110
miles by 50 miles. There are national parks in this country that are
larger geographically than my State. Some counties in various States
are larger than Connecticut. So when you start talking about 12
petitions pending, you can begin to understand what the impact can be,
particularly if there are concerns about the validity of some of the
petitions pending. Massachusetts has 6, Rhode Island has 5, California
has 53, North Carolina has 16, South Carolina has 11, Michigan has 10,
Louisiana has 10, Missouri has 9, and so forth.
My colleagues are more than welcome to look at the list I have. There
is a particular poignancy in Connecticut because of the number. Every
single petition may be entirely meritorious. I would not, for one,
suggest that they should not be approved if, in fact, that is the case.
But, if you will, what provoked this particular concern to raise this
amendment was a decision reached only a few weeks ago where two
petitioning parties in Connecticut recognition were each denied
separate recognition. But the Bureau of Indian Affairs, contrary to the
recommendation of the technical staff, recognized, in effect, a third
tribe, and said both of these tribes are not two separate tribes, but
one.
That may be a very legitimate conclusion, but you can understand the
concern when all of a sudden, without any hearings, they arrived at a
third conclusion, and the Assistant Secretary found that to be the
result. So that raises concerns, obviously, in the minds of many
people. Imagine two people seeking grant applications, both
applications are rejected, and the Secretary of some agency construed a
third grant application. It seems to me that goes beyond any parameters
that Congress has extended to the Bureau of Indian Affairs in this kind
of a process.
As I mentioned earlier, we have already seen statements from the
Assistant Secretary of the Bureau of Indian Affairs. I quote him:
I am troubled by the money backing certain petitions, and I
do think it is time that Congress should consider an
alternative to the existing process. Otherwise, we are more
likely to recognize someone that might not deserve it.
The more contentious and nasty things become, the less we
feel we are able to do it. I know it is unusual for an agency
to give up a responsibility like this, but this one has
outgrown us. It needs more expertise and resources than we
have available.
Mr. President, we could not agree more. I am not suggesting with this
amendment, by the way, that any of the applications should be rejected.
This bill would involve a 1-year moratorium to put the brakes on in
order to put in place a recognition process that is predictable,
credible, that would allow people to have an opportunity to respond, if
you will.
I don't believe a year is asking too much. I know there are tribes
that have been waiting decades, in some cases, for recognition. I feel
as strongly about what has happened to them as I do in areas where
recognition may be extended where it may not be warranted. The process
is broken if you have to wait 25 years to be heard. That itself makes
the case. That argues for the amendment and not against it.
So we feel strongly this amendment is not an egregious reach of
authority.
Many people all the time ask us for support on various matters. I
have certainly cast many votes where parts of the country have been
affected by drought or other natural disasters. This is not a natural
disaster. It is not even a disaster. It does not rise to that level,
but my colleagues ought to understand when we have this kind of
pressure occurring in a relatively small piece of geography where
concerns are being raised despite recommendations of a technical staff
and other recommendations, one can understand the urgency. I think any
Senator representing his or her State faced with this kind of issue
would take a similar position.
It is with a sense of regret that we have moved forward. I wish we
had more time to wait and that another year or two would be adequate.
But in the next year or two, we are going to find a lot of these
recognition petitions to have been ruled upon. They may be ruled
invalid.
The PRESIDING OFFICER. The Senator has used 10 minutes.
Mr. DODD. Mr. President, I will let my colleagues proceed and share a
few thoughts. The General Accounting Office is the last point I will
make. In their study released last November, they were highly critical
of the BLM. They did not just speak about Connecticut. They talked
about the country. They said the Assistant Secretary has rejected
several recent recommendations made by the technical staff, all
resulting in either proposed or final decisions to recognize tribes
when staff recommended against recognition.
I am not suggesting staff is always right in these matters or
suggesting they are right and the Assistant Secretary is wrong.
However, it seems to me it ought to be a source of some trouble when we
have that kind of conflict of opinions occurring. Especially with 222
petitions pending, with criteria being used selectively, I think it is
dangerous and could provoke a lot of hostility which we ought to avoid.
I urge the amendment be adopted, and I withhold the remainder of my
time.
The PRESIDING OFFICER. Who yields time?
The Senator from Colorado.
Mr. CAMPBELL. Mr. President, first, I thank Senator Dodd and Senator
Lieberman. I know, probably better than most in this Chamber, the
exemplary voting record they have had and the strong voice they have
been in supporting American Indians nationwide, people who very often
are left out and do not have a very strong voice in the Congress. They
do not have all the lobbyists that many groups have. They do not have
the input that many other groups have. I know both these Senators have
done a great job for them.
In this particular case, my friend and colleague, Senator Inouye, the
chairman of the Indian Affairs Committee, is going to move to table the
amendment offered by Senators Dodd and Lieberman. I reluctantly say it
is the right thing to do for our colleagues to vote to table.
[[Page S9013]]
During the time we have been considering the fiscal year 2003
Interior appropriations bill and Senator Dodd's amendment, the
Committee on Indian Affairs has held a hearing on two bills to address
the Federal acknowledgment process introduced by both of these great
Senators.
I know of no one who has said the Bureau of Indian Affairs is doing
everything right, and we constantly review the actions of the Bureau in
our committee.
I believe the process that governs how the United States recognizes
Indian tribes should be transparent, timely, and afford due process to
petitioners. I also believe fundamental fairness requires that truly
affected communities be given an opportunity to be heard because,
particularly with the advent of gaming, there are many things that
happen when the tribes get the opportunity to game that sometimes local
communities believe they are left out in the hearing process.
Of all affected communities, I believe the United States owes a moral
debt to the Native American communities to ensure they receive every
measure of fairness we can provide. That, in fact, is the core tenet of
trust responsibility as set up originally in our Federal Government.
The hearing our committee held on September 17 has been very helpful
in understanding the effects of this amendment since it contains
several of the primary features of Senator Dodd's bill, S. 1392. Very
important, in my view, was a statement by the administration before our
committee that it was opposed to S. 1392 and opposed to this amendment,
too.
Primary among the administration's objections is that the legislation
and the amendment would:
One, authorize ``interested parties'' to request that the Secretary
conduct formal hearings on a petition, in addition to the formal on-
the-record administrative factfinding proceeding, and the extensive
administrative hearings and appeals that are currently available. They
are already available. ``Interested parties'' is somewhat vague.
Two, alter the standard of proof from a ``reasonable likelihood''
standard to a ``more likely than not'' standard.
And, three, create conflict and confusion with the regulatory process
by statutorily duplicating some regulations but not others, thereby
inserting uncertainty as to which regulatory provisions are applicable.
Additionally, the administration informed the committee that it
cannot support a moratorium on an already lengthy, burdensome, and slow
process. Senator Dodd spoke to that. In fact, they did testify that if
either the Dodd bill or the Dodd amendment passed, it would take over a
year to promulgate new rules to implement either one, the bill or the
rule.
I believe the imposition of such a moratorium would be particularly
onerous on those petitioning groups that have gone through nearly the
entire process and are now in the stage known as the final
determination phase.
Just as important, in my mind, as the opposition of the
administration is the position of already-recognized Indian tribes that
already have a government-to-government relationship with the U.S.
Government. We have received dozens of letters and calls from across
the country.
I ask unanimous consent to print in the Record the tribes nationwide
and four national associations in opposition to the Dodd amendment.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Tribal Opposition to Dodd Amendment
(1) Tribes opposing amendment: 21;
(2) Tribal association opposing amendment: 5;
(3) Tribes or tribal associations supporting amendment: 0.
tribes opposing amendment
Oneida Indian Nation
Ft. McDowell
Agua Caliente Band of Cahuilla Indians
Passamaquoddy Tribe
Nooksack Indian Tribe
Lower Elwha Klallam Tribe
Sycuan Band of the Kumeyaay Nation
Choctaw Nation of Oklahoma
Hoopa Valley Tribe
Jamestown S. Klallam Tribe
Squaxim Island Tribe
Lummi Indian Tribe
Gun Lake Tribe
Cabazon Band of Mission Indians
Cahto Tribe
Susanville Indian Rancheria
Prairie Island Indian Community
Golden Hill Paugussett Indian Tribe
Wyandotte Nation
Saint Regis Mohawk Tribe
Winnebago Tribe of Nebraska
tribal associations opposing amendment
National Congress of American Indians
United South and Eastern Tribes
Midwest Alliance of Sovereign Tribes
Northwest Indian Fisheries Commission
California Nations Indian Gaming Association
Mr. CAMPBELL. Mr. President, these tribes and organizations from
across the United States, from Indian country, have declared their
universal opposition. Indeed, they are dismayed that we would be
considering making such a sea change on Federal Indian policy through
the appropriations process. Since tribes have been playing by the rules
and some, indeed, have waited for years for recognition, it seems to me
a bit unfair to put this in an appropriations bill.
The Committee on Indian Affairs has held many hearings on the issue
of recognition and recognition reform over the past several years. We
also heard from several Native groups that the process has taken
generations and people have actually died waiting for recognition.
I find it somewhat ironic that descendants of Native people who have
lived on this continent for thousands of years have to document who
they are to a government set up by primarily post-Columbian immigrants.
One thing that has become crystal clear from our hearings--and this
has been documented by the GAO and inspector general reports--is that
this agency, the Branch Acknowledgment Research, BAR, is not able to
provide information in a timely manner to either the Native American
petitioners or to outside interested groups. That is where we should be
putting our emphasis and providing more money for that process.
A substantial contributing factor is the flood of requests under the
Freedom of Information Act. These FOIAs, as they are called, are
keeping the BAR in a state of constant churning of documents,
preventing them from performing their core tasks.
Those asking for reforms must recognize the process in place is made
worse by the avalanche of lawsuits filed by local communities, State
attorneys general, and some suits by already-recognized tribes. I fail
to see how providing even more opportunities for lawyers to inject
themselves into the process, and generate more lawsuits, is an
improvement over the process. If we are going to reform the
acknowledgment process, we should make sure we are providing reforms--
true reforms--that provide benefits not just for States, the attorneys
general, and the lawyers, but also for the petitioning groups
themselves.
Finally, I cannot support an appropriations rider that would so
substantially impact a regulatory process that has been in place for 25
years and through which so many participants are still working their
way.
Placing a moratorium on the process and altering the evidentiary
standard is a dramatic change in policy and should not be made without
very careful consideration. I could only support such drastic actions
if I were presented with credible proof of actual fraud or something
equally bad.
I must add that I do support one provision of my colleague's
amendment and legislation; that is, as I mentioned, to substantially
increase the funds that the BAR receives to conduct its research. In
fact, I encourage both my colleagues, Senator Dodd and Senator
Lieberman, and would join with them in efforts in obtaining the $10
million authorized in this legislation rather than a smaller amount
that is in his amendment.
Providing greater resources to the BAR would enable experienced and
capable people, whether genealogists, anthropologists, or
archeologists, to do their work and provide an answer in a timely
manner.
In conclusion, I ask my colleagues to support the motion of the
Senator from Hawaii, our chairman, Mr. Inouye, to table.
I yield back my time.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). Who yields time?
Mr. INOUYE. Mr. President, I yield myself 12 minutes.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
[[Page S9014]]
Mr. INOUYE. Mr. President, first, may I say I am most grateful to my
colleague from Connecticut for his gracious remarks. He knows very well
it is a very difficult chore to be speaking against his amendment. When
one thinks of the friendship that started since the time of his father,
this is not easy, but I believe most respectfully that the amendment my
colleague from Connecticut presents is not proper.
He says he is for reform. We are all for reform. As my colleague from
Connecticut pointed out, there are tribes that have been waiting not a
year, not 5 years, but decades to even be recognized for consideration
by the administration. This will further prolong it.
Those of us who serve on the Indian Affairs Committee have had reason
to pay special attention to the State of Connecticut for quite a few
years now--in no small part because of the tensions that we read about
in the media reports that appear to be arising out of the fact that the
two Federally-recognized tribes in southeastern Connecticut--the
Mashantucket Pequot Tribe and the Mohegan Tribe--are conducting gaming
activities on their lands under the authority of the Indian Gaming
Regulatory Act--as is their right to do under that Federal law.
Because we have been monitoring the public dialogue in the State of
Connecticut rather closely, and because the hearing the Committee on
Indian Affairs held last week on Senator Dodd's authorization bill,
from which the elements of his amendment to the Interior appropriations
bill are drawn, I would like to take a few moments to acquaint my
colleagues with the dynamics that are at play in the State of
Connecticut as I understand them.
Pursuant to the compacts each of those two tribes entered into with
the State of Connecticut, in exchange for the exclusive authorization
to operate certain forms of class III gaming, as defined in the Federal
law, the two tribes have been making payments to the State of
Connecticut from the revenues derived from the operation of slot
machines.
Those funds are intended, as I understand it, to defray the costs of
any impacts that the tribes' conduct of gaming activities may have on
the surrounding towns and communities.
Unfortunately, despite the fact that together, over the past nine
years, the two tribes have thus far paid the State of Connecticut $2.2
billion, the towns most directly affected by an increase in traffic and
business, have not received funding from the State of Connecticut that
they feel is adequate to address their needs.
This is what one of the councilmen from one of the towns nearest the
Mashantucket Pequot indicated in his testimony before the Committee on
Indian Affairs last week. I have no doubt that his perceptions are
sincerely-held, nor that they are shared by others in his town.
It is not my place to question the decisions of the State of
Connecticut in allocating the funds the State has received from the
tribes, but it seems to me that we might well not be here today, were
those towns in close proximity to the Foxwoods and Mohegan Sun gaming
facilities and hotels not experiencing impacts that were intended to be
addressed by the substantial payments--and I think $2.2 billion is
substantial by any measure--that both tribes have made to the State of
Connecticut thus far.
I raise these issues that are seemingly unrelated to the matter we
address today, because the local Connecticut town officials have
repeatedly suggested that there is a direct relationship between the
process by which the United States Government recognizes the inherent
sovereignty of tribal groups and the impacts of gaming activities from
which they seek financial relief from the Federal Government.
I have no doubt that the citizens of Connecticut would acknowledge
that there are Indian tribes and Native people who are also citizens of
Connecticut, because as early as the 1600's, long before this nation
was formed, Connecticut established five reservations to serve as
homelands for the Indian people of Connecticut.
Thus, for over 400 years, Connecticut has, by its own action,
recognized that there are Indian tribes who have historically and
traditionally, made their homes in Connecticut--and indeed, that Indian
tribes occupied the area that is now the State of Connecticut, long
before Connecticut established Indian reservation.
So the arguments that give rise to my friend's amendment cannot be
that the State of Connecticut does not recognize the Indian tribes of
Connecticut.
No, the argument advanced by the non-Indian citizens of Connecticut
and some officials of the State of Connecticut seems to be that the
United States should not recognize the Indian tribes that have
historically occupied the area that is now the State of Connecticut.
And so, unusual activities are being initiated by State and local
officials, to prevent the United States from recognizing these
Connecticut tribes.
These activities include litigation, of course, but they also include
the hiring of genealogists and anthropologists and historians, and even
former employees of the Bureau of Indian Affairs' Branch of
Acknowledgment, in an effort to develop information that could serve to
prove that the Indian tribes that are recognized by the State of
Connecticut either are not Indian tribes, or at least, that they are
not Indian tribes which should be recognized by the United States.
I don't suppose that I am the only one to whom this position appears
fundamentally and inherently contradictory.
In any event, it is clear that there are citizens and local
governments in Connecticut and even the State of Connecticut who are
expending substantial sums and considerable energy to oppose the
Federal acknowledgment of Connecticut tribes, and that they believe the
United States should subsidize their expenditures.
Indeed, Senator Dodd has a bill pending in the Committee on Indian
Affairs that would provide grants to State and local governments so
that they could be better able to carry on their fight.
That is one set of issues.
Another set of issues has to do with the erroneous perception--and
sadly I think perhaps this inaccurate portrait is drawn somewhat
deliberately--that acknowledgment by the United States that a tribal
group is an Indian tribe, leads directly and automatically to the
conduct of gaming.
In fact, the vast majority of Federally-recognized tribes in the
United States are not engaged in the conduct of gaming activities under
the authority of Federal law, and many, like the great Navajo Nation--
the largest land-based Indian tribe in the United States--have
consistently rejected gaming as a means of economic development.
The acknowledgment of an Indian tribe by the Secretary of the
Interior does not even entail the establishment of a land base that
could serve as the homeland for tribal members.
No, instead, there is a separate process to determine whether land
should be taken into trust for an Indian tribe--a process which
provides for significant involvement of State Governors, as well as
State legislatures and local governments.
That process is not an easy one--there are tribes across the country
who will verify that it takes years--as much as 10 to 20 years--to have
land taken into trust.
And that is only step one.
Should a tribe want to pursue gaming as a means of economic
development, there is a separate process with even higher burdens to
meet--for the taking of land into trust for gaming purposes.
In this process, for land that is to be taken into trust for purposes
of gaming after October 17, 1988, there is not only a prohibition in
Federal law that has only limited exceptions, but a far greater role
for the Governor of each State in whether land is taken into trust for
gaming. Some commentators have even suggested that this role that each
Governor is afforded under Federal law constitutes an absolute veto
power.
So to conclude, it is abundantly clear to anyone who cares to conduct
even the most superficial survey of Federal Indian law, that the
acknowledgment of an Indian tribe by the United State is a process that
is separate and decidedly distinct from the issue of gaming.
Though some may see it as being to their advantage to lump these
different processes together and make it appear that they are all one--
as one who has
[[Page S9015]]
served on the Committee on Indian Affairs for 24 years now, I can
assure my colleagues that it simply is not so.
As the Chairman of the Republican National Committee, Marc Racicot,
recently was quoted as responding to the notion that people are mixing
Federal recognition with Indian gaming, ``Is the question really about
the Federal recognition process or is it about gambling? Frankly, I
think people should address those questions honestly.''
As my colleagues know, Marc Racicot is the former Governor and former
attorney general for many years of the State of Montana.
In that same interview that was published ten days ago, Governor
Racicot indicated that his experience with Federal recognition has not
been mired in ``irregularities and improprieties'' as alleged by
Connecticut officials. Instead, Governor Racicot stated ``the process
is clear, plain and steeped in integrity''.
If Governor Racicot's observations were the exception to a perception
widely-held across the country, we might have a different set of
circumstances to address.
But the problems that are cited by the citizens of Connecticut are
clearly different from those that have been identified by
administration officials, both past and present, by petitioning groups,
by the General Accounting Office, and by those who have testified
before the Committee on Indian Affairs.
Of course, like any new venture that bring more people, more traffic,
and more revenues into a State, there have been concerns expressed
about the impacts of gaming--in our history as a country we saw them
first in New Jersey and Nevada.
Today gaming, whether it is Government-sponsored or privately--owned
gaming, whether it is tribally-operated or commercially-conducted--from
State lotteries to horse tracks to river boats, gaming has given rise
to controversy.
As we consider the amendment of my friend from Connecticut, let those
of us who know the difference, keep gaming issues separate, and focus
on the Federal acknowledgment process.
Cound the Federal acknowledgment process benefit from reform?
I don't think there is any question that it could.
The committees of Congress--the Indian Affairs Committee in the
Senate--would not have held so many hearings over the years and would
not have considered so many proposals to reform the process, were it
not in need of refinement.
The problem is that we do not have agreement on the nature of the
problem and even less agreement on the appropriate resolution.
If you asked tribal groups that have been through the acknowledgment
process or that have petitions now pending before the Branch of
Acknowledgment, I believe you would find unanimity in their view that
the process takes too long.
In testimony on Senator Dodd's authorizing bill that was presented to
the Indian Affairs Committee last week, the chairperson of the Eastern
Pequot Tribe--a tribe recognized by the State of Connecticut since the
1600's--testified that the tribe's petition has been pending in the
Bureau of Indian Affairs, BIA, for 24 years.
The BIA's records clearly document that the experience of the Eastern
Pequot is not atypical.
Each of the Assistant Secretaries for Indian Affairs within the
Department of Interior over the past several Administrations--both
Republican and Democrat--have stated their views that the process is
too long, too cumbersome, and too expensive for the petitioning tribal
groups.
The last Assistant Secretary implemented reforms to streamline the
process. The current Assistant Secretary is taking further steps to
address the backlog in petitions, because by most calculations, it will
take the Branch of Acknowledgment another 200 years to complete work on
the petitions that are now pending before the Department.
Senator Dodd's amendment does not address the seriously-problematic
length of the acknowledgment process nor does it seek to reduce the
burden on petitioning groups, and so Indian tribes across the country
have contacted the Committee to indicate that they do not see this
amendment as effecting the kind of reform that has long been seen as
necessary.
Unfortunately, Senator Dodd's amendment will lengthen the process for
those tribal groups who are subject to the proposed moratorium by yet
another year, at a minimum, given that we cannot know how much time
will be entailed in the promulgation of the rules and regulations
required by the amendment.
Experience would instruct us that this moratorium will last for much
longer than a year.
The General Accounting Office examined the acknowledgment process in
its November 2001 report to the Congress, and found that the seven
mandatory criteria which each petitioning group must satisfy, were not
being applied in a consistent manner. The conclusions of the GAO report
corroborated another long-held view in Indian country.
The amendment before us does not address this issue either.
What the amendment does propose is something that, in the view of
many of us who have struggled with these issues for years, requires a
much more thorough vetting before it is made part of the permanent body
of Federal law.
That is the fundamental question of whether the acknowledgment of a
tribal group by the United States should be an adversarial process in
which other governments should participate.
Although the current process provides for the involvement of
``interested parties'' in formal meetings and in the process of
appeals, and State and local governments have made very effective use
of the Freedom of Information Act requests to further bring the snail's
pace of the acknowledgment process to a grinding halt, there has been
no national discussion and no nationwide consultation within Indian
country on this fundamental issue.
Yet, the amendment before us proposes to inject a process of
adversarial hearings--at the request of any and all interested
parties--throughout the acknowledgment process, and it would appear,
before a petition is even ready for consideration.
Another change that the amendment imposes is a change in the burden
of proof that a petitioner must meet in satisfying the seven mandatory
criteria.
The impact of such a change has not been assessed--it would effect a
change in existing law--and there can be no doubt that tribal groups
who have been through the process and have not succeeded will now come
to the Government seeking reconsideration under the new standard.
Even more likely is the prospect that interested parties will contest
the Secretary's findings in favor of acknowledgment on the grounds that
those groups that have been acknowledged may not have satisfied the new
standard.
Reopening every past action of acknowledgment by the Secretary to
assess whether the new standard would have changed the outcome in each
case is clearly going to require years and years of effort and
litigation.
I think we would all agree that generating new lawsuits against the
government is not a direction that reform should take.
Last but certainly not least problematic from the vantage point of
Indian country, petitioning groups, from the administration, the
authorizing committees of the Congress, and from the Indian Affairs
Committee is the moratorium that Senator Dodd's amendment would impose
on the acknowledgment process.
This moratorium affects not only the groups that have been in the
process for twenty years or more, and not only the groups whose
petitions are the subject of Federal district court orders, but also
groups that are already through the acknowledgment process and
currently in the appeals phase.
Particularly in the case of this last group, there has been no
rationale advanced as to why a moratorium should be imposed on their
petitions in order to reform a process of which they are no longer a
part.
Like many of us, I read the newspapers and media accounts from other
States. Over the years, I have even spent a little work time in
Connecticut trying to be of assistance to the citizens of Connecticut.
So I think I have a sense of what pressures are brought to bear on the
Members of Congress who serve that State.
[[Page S9016]]
Working together, I think we can address the concerns that were
expressed at the Indian Affairs Committee hearing last week, but I have
to say, as chairman of the authorizing committee, that proposed changes
in substantive law and regulations require and deserve careful
consideration.
If the provisions of Senator Dodd's authorizing measure are to become
law, they should be considered in their entirety--not in piecemeal
fashion in an appropriations bill--and they should be considered in the
context of what reform is needed--as defined by a much larger base of
our national citizenry than the citizens of one State.
And so I call upon my colleague from Connecticut to work with us to
effect comprehensive reform, and in the interim, to allow the
administration to take the steps it has proposed to improve upon the
current process with funds appropriated for that purpose.
All of the tribal groups that would be immediately affected by the
proposed moratorium filed their petitions well before the advent of
Federally-authorized Indian gaming.
They couldn't have been motivated by the prospects of something that
did not exist when they filed their petitions and should not be
penalized for what has since come to pass.
Let us keep these matters separate, addressing the impact of gaming
as they arise, and addressing reform of the Federal acknowledgment
process with the deliberative discussion that it deserves.
With these considerations in mind, I urge my colleagues to oppose
Senator Dodd's amendment.
I will share footnotes in history that we may have forgotten over the
years. Our Founding Fathers felt so strongly about the importance of
Indian nations that in the Constitution of the United States they have
set forth, in good language, that Indians should be recognized as
sovereign countries and as sovereign nations. We have entered into 800
treaties with Indian countries, as we do with the British, the Germans,
the French, the Japanese, and the Chinese.
Indians are sovereign. I realize it is very difficult for fellow
Americans to look upon the Indians as sovereign people, but they are.
They were here before we arrived. This was their land.
Sadly, I must report that the Senate--of the 800 treaties we have had
signed by the President of the United States and by the ruling monarchy
of the nation, 430 were ratified by our predecessors and 370 are still
in the files. They are in the files because we found oil, gold, and
precious material and suddenly we felt, no, we cannot give that away.
Of the 430 we ratified, we violated provisions in every single one of
them. That is our record. I am not proud of it. I think the Indians
have waited a long time for justice, and I am sorry to say to my
dearest friend of all that this does not bring justice to them.
When the first European landed here, he found a sophisticated and
organized group of people. They had elected leaders. They had a
judiciary. In fact, if one reads the writings of Jefferson and Benjamin
Franklin, they will note reference to the Iroquois Confederacy, a
confederacy made up of six tribes, six nations. Each tribe elected
their representatives, the judiciary, their leader. They sent a
delegation of representatives to the central office, and the clan
mothers voted to select the supreme chief. In those days, long before
we came on the scene, the women took part in the electoral process.
They were a few years ahead of us. That was democracy as our
forefathers conceived.
Laws were passed to further strengthen the basis of sovereignty. At
the time they were recognized as sovereign nations, these Indian
nations had jurisdiction, authority, and control over 550 million acres
of land. Since then we have had the Indian wars, and let us call it
what it was, Indian extermination laws. We had what is known as an
allotment. Let's open it up. From 550 million acres, today there are 50
million left.
One of the provisions in this amendment speaks of lands where they
historically resided. Most of the Indians of this land do not live in
places where they historically resided. The Cherokees now live in
Oklahoma. After the Indian wars, they were rounded up from the
Carolinas, and before they landed in Oklahoma, the dumping ground, 80
percent were dead.
So where is the historic place of residence? One can say that of just
about every Indian tribe. This is what we are dealing with.
In the State of Connecticut, there are two very successful Indian
casinos, Mohegan Sun and Foxwoods. In the last 9 years, they have
provided income to the State of $2.2 billion because that is part of
the agreement with the State of Connecticut. That is a lot of money.
We cannot intrude ourselves into the affairs of the State and say you
should give that money to the town next to Foxwood or next to Mohegan
because the impact is greater. That is the State's decision. I would
think the moneys these Indians have provided for the government of
Connecticut should be sufficient, but that is not within our
responsibility.
Another footnote in history: One would get the impression after
listening to this debate that most of these Indians who are seeking
recognition and who are seeking land are seeking such land for gambling
purposes. Far from the truth, sir. Most of them do not want gambling.
In fact, the largest Indian tribe in our Nation is the Navajos. They
will not permit gaming within their lands. No, they do not want any
gambling in their lands.
Of those treaties that were not ratified by the Congress--still in
the files around here--there are several that affected the Indian
nations of California. Because the treaties were not considered, in a
sense they are men and women without nations, without land. We decided
to put them in a little enclave and say: You live here or you live
there because you look alike.
My first chore as chairman of this committee was to break up a tribe
because we had put in Pequots and Hoopa-Huroks, historic fighters.
Just in case one gets the impression the Indians are ``give me, give
me, give me, all the time,'' they have given more than any one of us
can expect. As one who values the service of men and women in uniform,
may I simply say that of all the ethnic groups in the United States, of
all the racial groups in the United States, on the basis of per capita
participation, the Indians have sent more sons and daughters in uniform
to face harm's way than any other ethnic group--more than the Germans,
the Irish, the British, or what have you. Indians have fought in every
war in the last century, and every one now, in greater numbers. They
have given their lives in greater numbers, per capita. They are not
asking for a handout. They are asking for what the Constitution calls
for and what the laws of this land call for.
The PRESIDING OFFICER. Who yields time?
Mr. DODD. I yield to the Senator from Connecticut.
Mr. LIEBERMAN. I thank my friend and colleague from Connecticut.
In a little over an hour the Senate will vote on the amendment
Senator Dodd and I have introduced which we believe will reform and
strengthen the Federal tribal recognition process to the benefit of the
Native American community and everyone else concerned. It will make
that process more fair and give it more credibility and hopefully will
provide the resources to have the decisions on tribal recognition made
by the BIA and the BAR in a much more timely fashion.
Some tribes have been waiting years and years and years for a
decision from this recognition process that is, regrettably, broken. Of
course, in part it is broken because of the gambling associated with
Native American tribal recognition and the surge of applications, the
dramatic interest in recognition. Often, recognition leads to the
presence of gambling in a locality and the inability of these
regulatory authorities to keep up with that extraordinary increase in
demands on them.
In Connecticut--a relatively small State, yet we have three federally
recognized tribes--one recently recognized tribe is being appealed and
nine more recognition petitions from our small State are in the
pipeline of the Bureau of Indian Affairs. We have in two of the
federally recognized tribes the two largest casinos in North America, I
believe in the world. So there is an impact that these decisions have.
That is why, last year, my colleague from Connecticut and I
introduced S. 1392 and S. 1393, which were designed to
[[Page S9017]]
reform and improve the process by which the Federal Government
recognizes the sovereign status of American Indian tribes and their
tribal governments. We certainly did not view this as antirecognition
because there is a historic, a moral right to recognition by tribes
that can meet the requirements of this process. Nor was it, as we
conceived of it, inherently antigambling. It was to say that the
decisions have taken on extraordinary importance and they ought to be
reached by a process that is not only fair in itself and gives all
participants--the tribes claiming recognition, the neighbors of the
tribal grounds, towns, et cetera--the belief that they have been
through a process that is fair and therefore that the results of the
process, the decisions made, are credible.
We have introduced this amendment reluctantly because the problems
with the tribal recognition process have not gotten better,
notwithstanding concerns expressed by many, as has been indicated here.
As my colleague from Connecticut has said, this happens to be a
problem that has impacted Connecticut, a relatively small State, but
this is really a national problem affecting Native Americans seeking
tribal recognition in the States in which they are now located.
Let me quote from the GAO report, which has been cited, which found
that ``the basis for BIA's tribal recognition decisions is not always
clear.''
It went on to state:
While there are set criteria that petitioners must meet to
be granted recognition, there is no clear guidance that
explains how to interpret key aspects of the criteria. For
example, it is not always clear what level of evidence is
sufficient to demonstrate a tribe's continuous existence over
a period of time--one of the key aspects of the criteria. As
a result, there is less regulatory certainty about the basis
for recognition decisions.
That is from a critical report by the GAO on this recognition
process. That GAO critique has been seconded by the Interior
Department's inspector general and, as has been noted in this debate,
even by the past Assistant Secretary for Indian Affairs.
Despite these critiques, there have been no real changes in the
recognition process to fix the problems. Instead, the status quo has
continued at the BIA, with applicants experiencing long delays and
parties in various cases dealing with decisions that they believe have
been unfairly arrived at. The amendment we will vote on at 5:30 this
afternoon is our attempt to improve this situation. Rather than letting
the process continue in the current manner, we ask for it to provide
adequate procedures to ensure its legitimacy--something that would
benefit both the tribes and the communities and parties that surround
them.
I want to stress that this amendment does nothing to affect already
recognized Federal tribes or to hinder their economic development
plans; nor does it change existing Federal tribal recognition laws. It
is our hope, in fact, and has been our hope, that the Native American
tribes might support these procedural reforms that we are recommending
so as to buttress the legitimacy of the ultimate recognition rulings.
While, as my friends and colleagues from Colorado and Hawaii have
indicated, that is not the case and, in fact, a large number of Native
American tribes have opposed this amendment, I continue to hope the
fact that we have brought it before the Senate may encourage them,
under the wise and fair leadership of the Senator from Hawaii, Mr.
Inouye, and the Senator from Colorado, Mr. Campbell, to see if we can't
find common ground.
It seems to me no matter what side you are on in a particular
proceeding before the BAR or BIA, you have an interest in due process
and you have an interest in the result of the process being as broadly
credible as possible.
What our amendments would do consistent with recognition laws is to
ensure that recognition criteria are satisfied and that all affected
parties, including affected neighboring towns, have a chance to fairly
participate in the decision process. Our amendment ensures a system of
notice to affected parties. It assures that relevant evidence from
petitioners and interested parties, including neighboring towns, is
properly considered; that a formal hearing may be requested with an
opportunity for witnesses to be called and with other due process
procedures in place; that a transcript of the hearing is kept; that the
evidence is sufficient to show the petitioner meets the seven mandatory
criteria of Federal regulations; and that a complete and detailed
explanation of the final decisions and findings of fact are published
in the Federal Register. There is nothing very radical here. It is
basic due process procedural rights, all consistent with the
established recognition criteria. We have not changed the recognition
criteria in the amendment that we proposed.
Under the amendment, funding available under the Interior
appropriations bill to the Bureau of Indian Affairs for the recognition
process becomes available when these fundamental due process procedures
are implemented by the Secretary of the Interior. So insofar as this is
considered a moratorium, it is a moratorium, as I know Senator Dodd has
indicated, that could end in a week if these due process changes were
put into effect. Our amendment dictates no outcomes in any particular
cases. It aims to ensure a fair process.
So I hope my colleagues will take a look at the amendment. In some
sense the impact of the currently broken process at the BIA has been
felt with a particular intensity in Connecticut. But this is a national
problem.
We may not adopt this amendment today. I hope we will, but if we do
not, this is a problem that is not going to go away. It is going to be
felt more and more around the country. Again, I say our aspiration is
to find common ground. I thank the Chairman, Senator Inouye, and
Senator Campbell for their characteristic courtesy and respect and
thoughtfulness. We disagree on this one. It is a disagreement in good
faith on both sides. I continue to express the hope that under their
leadership, those who are concerned about the fairness of the
recognition process, those who are concerned about the lack of speed in
the process--the terrible delays--will be able to come together and
agree on a series of reforms, and then the funding for additional staff
at the BAR and BIA to make the promise of due process here real for all
concerned.
I yield the floor.
Mr. DODD. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Connecticut has 2 minutes
remaining. The Senator from Colorado has 3 minutes 53 seconds
remaining.
Mr. DODD. Mr. President, I see the majority whip. I ask unanimous
consent we extend the debate an additional 10 minutes, equally divided,
so we can make some concluding remarks.
Mr. REID. Mr. President, I think that would be appropriate.
The PRESIDING OFFICER. Is there objection?
Mr. CAMPBELL. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CAMPBELL. Mr. President, I have made most of my comments already.
I don't know who else will be here on the floor to speak against the
Dodd-Lieberman amendment, but I would like to respond to just two small
points that were made by our friend, Senator Lieberman.
First, though, let me thank Senator Inouye for a very eloquent
statement. He really does speak from the heart. When you hear him talk
about basic fairness and justice that American Indians deserve and
need, I think Senator Inouye's own experience and background as a
Japanese-American and what his people went through in World War II
gives him a very special insight, and certainly a very special feeling
for what Indian people face.
Let me make two very short comments on Senator Lieberman's remarks.
He made reference that this would not affect existing tribes. He is
right, I guess, in some respects. But I think we need to look at that
in historical context.
First of all, when the original recognition process was done--clear
back in the early 1800s--it was done so that the Federal Government
could provide rations, blankets, and so on, to the Indian tribes that
were deprived at that time of their hunting rights and restricted to
certain areas. That is why it was originally set up. They had to find
out who qualified to get some benefits, and that is what trust
authority is about.
[[Page S9018]]
It will not surprise anyone in this Chamber to know that there were
some people even at that time who did not want recognition. Certainly
some of them hid out in the hills of the Carolinas because of the Trail
of Tears, when their cousins and brothers and fathers were rounded up
and driven at gunpoint clear across the Nation to Oklahoma. The ones
who hid out in the Southeast States--would you want to tell some
government bent on killing your people you want to be recognized? Not
likely; that would be a pretty dumb thing to do.
There have been Indian people in some parts of this country all along
who were not ``recognized'' by the U.S. Government. It didn't mean they
were not Indian. It didn't mean anything of the sort. They knew very
well what would happen to them if they were so-called recognized.
The second point I want to make is during the 1950s, during what was
called the Termination Act, the Federal Government, in its infinite
wisdom, decided many Indian tribes were no longer tribes. I guess that
meant they were no longer Indians, at least not of a group of Indians.
That has always rather confused me because I have always likened it to
maybe telling African Americans that they were no longer Black. I mean,
you are what God made you. That's it.
But through the Termination Act of the 1950s--I don't remember the
exact number, and I don't have it in my notes--as I just offhand
remember, there were over a hundred, if not several hundred, tribes who
were told by the Federal Government: You are no longer Indian tribes.
Many of them are still trying to be rerecognized. The ones that were
terminated in the 1950s, they have to get recognized through a
different process. They have to do it through legislation.
But the point is the fact that many of them that historically had
ancestors on this continent maybe for 10,000 years were being told by a
government set up by new immigrants that they were no longer Indian
tribes still confuses me.
I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. I thank my colleague from Connecticut, Mr. Lieberman, for a
very eloquent statement. Let me also thank my colleague from Hawaii for
a very eloquent statement he has made. I would not take issue with any
comment he made about the relationship between the history of the U.S.
Government and its treatment of Native American tribes going back to
the founding days of this Republic.
It is a sorry history in many instances and circumstances.
The Senator very graciously mentioned my father. Let me mention my
mother. My mother used to tell me all the time that two wrongs do not
make a right.
That we have done a terrible injustice to Native American people over
the years does not justify, in my view, continuing a process that would
allow recognition to occur where it may not be warranted. In America,
where recognition should be extended and granted, the process must be
fair. As for the recognition process--its history--my friend from
Colorado makes a very strong statement. It is something of a historic
anomaly in many ways; that's why recognition must even occur. The fact
is that the current process is the law of the land.
I can speak very directly about my own State. It is a difficult
process, which is still ongoing for that matter. There are those in my
State and others who would like to undo the recognition extended to the
Mashantucket Pequots. Books have been written about it. Popular books
have been written. That garnered national attention in questioning the
recognition of that tribe. I have disagreed with them.
I also know the process that the Mohican Tribe went through in my
State. It was a very long and elaborate process, working very closely
with the community leaders in the towns in which they are located--
State, as well as the National Government.
Our point here is not about the history, as much as concern about the
history is justified. It is not about the past, as legitimate as those
arguments are. It is about today and the future.
Let me quote, if I can, a letter I received from the National
Congress of American Indians.
By the way, the amendment that is part of the bill was considered for
over a year and isn't written out of whole cloth. I showed this
amendment to Native Americans around the country and asked them what
they thought of the amendment.
This letter I received from Tex Hall is dated September 12 of this
year. He opposes the amendment. Let me be very clear. The National
Congress of American Indians opposes the Dodd-Lieberman amendment, but
listen to what he says in the letter. I am reading from the second
paragraph.
And I believe that tribal leaders agree with you it must be
a rigorous process requiring the petitioner to demonstrate
historical and continuous American Indian identity in a
distinct community. We believe that the process could benefit
from a serious review by Congress and a codification of the
process and the criteria.
Mr. President, I ask unanimous consent to have this letter printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Congress of
American Indians,
Washington, DC, September 12, 2002.
Re Opportunity to Meet and Discuss Federal Recognition
Process.
Hon. Christopher J. Dodd,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Dodd: On behalf of the more than 250 member
Tribal Nations of the National Congress of American Indians,
I write to request an opportunity to meet with you and a
group of tribal leaders to discuss proposals to change the
process for petitioning the federal government for
recognition as a federally-recognized Indian tribe.
Both the federal government and the NCAI have a
longstanding position that legitimate Indian tribes whose
status has been historically omitted should have the right to
petition for formal recognition by the federal government.
And I believe that tribal leaders agree with you it must be a
rigorous process requiring the petitioner to demonstrate
historical and continuous American Indian identity in a
distinct community. We believe that the process could benefit
from a serious review by Congress and a codification of the
process and the criteria.
The current process is plagued by an enormous backlog, and
some petitioners have been waiting over two decades since
they submitted their initial petitions. NCAI believes that
the federal government should make the resources available so
that petitions can be processed in a timely way.
As you know, we do not agree with your pending amendment.
We believe it would create an indefinite moratorium on the
recognition process. Because there is no incentive for the
Secretary to actually create the new process, the petitioning
tribes would be put in limbo for additional years, adding to
the unjustness of the already interminable federal delays.
In addition, by attempting to create a moratorium on
federal tribal recognition through the introduction of an
amendment to the Interior Appropriation bill, this amendment
attempts to circumvent the Congress' procedures for dealing
with complex Indian issues like federal recognition. Such a
drastic change in federal Indian policy should be referred to
the authorizing committees for development of the record and
an opportunity for broader participation and deliberation.
While we greatly appreciate the contacts from your office,
two days notice is not nearly enough time to engage tribal
leaders in a meaningful discussion.
As I mentioned above, I would very much like to meet with
you to discuss these matters in greater detail and would be
willing to put together a small group of tribal leaders to
participate in the discussion. I believe that we should also
include Senators Inouye and Campbell in the discussion, so
that this issue can be prepared for review by the Senate
Committee on Indian Affairs.
Thank you for your consideration of this request.
Sincerely,
Tex G. Hall,
President.
Mr. DODD. Mr. President, my colleagues ought to know that in the
concluding paragraphs of the letter he disagrees with this amendment.
But his conclusion about a process that needs repair is one that is
embraced almost by all.
My good friend from Colorado has legislation pending that would move
the present recognition process from the BIA to a new commission. I
agree with him on that approach. I believe it will take time to get
that done. I presume there will be regulations and the like appended to
it.
It is not a question of debate about whether or not the process is in
need of repair. It appears that everybody agrees with them because of
what has happened and the various circumstances. We are talking about
222
[[Page S9019]]
petitions, and maybe more--all of which may be legitimate. But
shouldn't we know in the end that there has been a process followed
fairly by all and that there will be at the end of the day a conclusion
that is just and reasonable and will withstand the test of time? That
is all we are suggesting.
The poignancy, I suppose, is because it impacts my State. I am aware
of it because of what's going on in my State. If I had no petitions
pending in my State, I wouldn't be standing here. I wouldn't be aware
of the issue. But we are aware of it.
I am worried about the future for the very same reasons that history
suggests--that we will find out again that there is unnecessary
division, hostility, and resentment growing. That should not be the
case.
I strongly urge that this amendment not be defeated--I suspect that
it may be--and that we do something soon to repair a process that looks
too cavalier. If there is just going to be recognition of all petitions
coming forward, why don't we just say so straight out? If there is
going to be a process to demonstrate satisfaction of some particular
criteria, let us make sure it works. As it is now, it is catch as catch
can. Sometimes the rules apply. Sometimes they don't. Of the seven
criteria, some we follow rigorously, and some we don't at all. Some are
applied in some cases and not in others. Some petitioners are granted,
some are denied, and some are brought together. There are third choices
inexplicably made.
This isn't working right. It needs to be repaired. We can do that in
a very short order because we recommend no new criteria. We just say
codify the existing criteria, put it in shape, and let everybody know
what the process is working so they can go through it in a reasonable
way. It is outrageous that they should have to wait two or three
decades for recognition.
The fact is that we have supported additional resources here to the
agency to try to provide the technical staff so decisions can be made
within a reasonable amount of time. With these resources, people can be
heard and the agency can reach final conclusions that I believe all
Americans can support.
That is what this amendment tries to do--nothing more than that and
nothing less than that, but nothing more than that.
Again, I suspect the amendment will be defeated, but I hope the end
result is that we can get a better system. My State may regrettably
find itself with some petitions granted that do not deserve to be, but
maybe that is the price you pay for doing something about broader
reform.
I regret that there had to be a disagreement between people who
support Native Americans. I admire them immensely. But as I look down
the road here, I worry that if we don't straighten this situation out
that we could find the situation getting worse. I don't want to see
that happen. For those reasons, I urge adoption of the amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Mr. President, is there any time remaining?
The PRESIDING OFFICER. Five minutes seventeen seconds.
Mr. INOUYE. Mr. President, if the Senate should rule that the votes
against the amendment prevail, may I assure my colleagues that the
committee stands ready to consider any and all suggestions on how to
reform this process. It is a scandal at this time. We realize that. It
should be changed.
I move to table the amendment.
Mr. DODD. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Under the previous order, the motion to
proceed to the motion entered to reconsider the vote whereby cloture
was not invoked on amendment No. 4480 is agreed to and the motion to
reconsider is agreed to.
There will now be 60 minutes for debate with respect to that cloture
motion, with the time equally divided and controlled by the two leaders
or their designees.
Mr. REID. Mr. President, the Republicans have still 10 minutes as if
in morning business. The time is yielded on this Dodd amendment, but
there are still 10 minutes of morning business to which Republicans are
entitled. Do they intend to use that?
Of course, we will have time later this evening, as we always do. I
ask unanimous consent that we move forward, as the Chair announced, and
that the time allocated be disposed of.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. CAMPBELL. Mr. President, point of information: What time will the
vote on the Dodd amendment take place?
The PRESIDING OFFICER. At approximately 5:37.
Mr. CAMPBELL. Thank you, Mr. President.
The PRESIDING OFFICER. Who yields time?
Mr. REID. Mr. President, I suggest the absence of a quorum, and I ask
unanimous consent that the time be charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, it is my understanding that we are on H.R.
5093. Is that right?
The PRESIDING OFFICER. The Senator is correct.
Cloture Motion
Mr. REID. Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The Chair lays before the Senate cloture
motion having been presented under Rule XXII, the Chair directs the
clerk to read the motion.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on the Byrd
amendment No. 4480, as amended, to H.R. 5093, the Department
of Interior Appropriations bill, 2003.
Debbie Stabenow, Harry Reid, Charles Schumer, Evan Bayh,
Mark Dayton, Jeff Bingaman, Jim Jeffords, Joseph Lieberman,
Bill Nelson of Florida, Blanche L. Lincoln, Byron L. Dorgan,
Jack Reed, Patrick Leahy, Robert C. Byrd, Mary Landrieu, Max
Baucus.
Mr. REID. Mr. President, I suggest the absence of a quorum, and I ask
unanimous consent that the time be charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, I understand that between now and 5:30 we
have been allotted time to debate the Craig-Domenici amendment as it
relates to the cloture motion on the Byrd amendment on the Interior
bill.
The PRESIDING OFFICER. The Senator is correct.
Mr. CRAIG. Thank you.
Mr. President, I will allot myself 10 minutes to debate this issue.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, for several weeks now, the Senate has been
considering the Interior appropriations bill, of which the Byrd
amendment to that bill would put critical fire money back into our
Forest Service budgets that have been badly depleted by the season that
we are hopefully beginning to leave, which is known as the fire season,
especially in the Great Basin West. That money is critical.
But it was because of our concern about fires and the wildfires that
have swept through the West this summer that I and Senator Domenici and
a good many other western colleagues joined in working with the
administration, and for a good long while in a very bipartisan way, to
see if there was not some middle ground to create some flexibility to
go into those worst fuel-laden lands and to develop a thinning and
cleaning process that would be environmentally sensitive and at the
[[Page S9020]]
same time effectively reduce the fuel loading that has gone on there
that has precipitated in some of these very dramatic wildfires that
have occurred out West this summer.
I recite, again, for the record, we have burned well over 6.5 million
acres to date of wildlife habitat and watershed, possibly several
million acres of old-growth forests. We have lost about 3,000 homes,
private homes of our citizens. Over 25 people, I believe--26 or 27 at
least--have been killed in relation to these fires. It is without
question a national emergency, a national crisis. I almost have the
sense that we have fiddled a bit over the last couple of weeks while
our forests have burned.
There are still fires burning in California. As we speak, acreage
burning in a national forest outside of Los Angeles over the weekend
has consumed over 12,000 acres and has threatened numerous homes. Yet
because of some special interests here and phenomenal allegations or
statements made in the media over the last several weeks, you would
think I and others were trying to precipitate a whole new logging
program for the forests and that somehow was evil, instead of the very
limited, targeted thinning and cleaning that we think could and should
be utilized to reduce the fuel loading on these forests that has
created these firestorms.
I have here a variety of editorials and news comments from major
papers across the Nation. I am fascinated by words such as ``nose under
the tent,'' ``intent to allow logging companies to be turned loose once
again in our national forests.'' My reaction is, can those who write
the news read the news?
Can they not read the Craig-Domenici amendment and understand that it
is phenomenally limited, that it would require very specific language
by the U.S. Forest Service, that there would be the right to go to
Federal court and block any of these actions, that we have tied no
one's hands other than to say that on these limited, targeted acres, we
will not allow appeals, nor will we allow a temporary court injunction
that has locked up tens of thousands of acres already, many of them
that burned this summer, from the ability to get in and thin and clean
them?
No. Those who write the news can read the news. But oftentimes those
who write the news choose a bias that they think is popular, and in the
end our forests burn. Thousands of homes are lost, lives endangered,
and we struggle here at the Federal level to attempt to make some
slight adjustments in public policy to return a state of health to our
national forests.
Last week, our colleague from New Mexico, Senator Bingaman, came to
the floor and offered an alternative amendment. He did not introduce
it. He laid it before us as something that could be viewed as an
alternative. I began to study it to try to see if it was a reasonable
alternative or whether in fact it would deny any activity, if it was
simply a Trojan horse in the reality of, would it do something similar
to what the other Senator from New Mexico, Mr. Domenici, and I had
proposed.
After thorough examination of that, I must tell you I believe the
Bingaman amendment to be just that, a Trojan horse. Not only does it
limit dramatically what you could be able to do, it creates some
categorical exemptions. And then it does something else that is very
important in the language of the law or the policy we are debating as
to whether it frees the hands of the forest managers within these
limited areas to do what is necessary to limit this fuel loading.
It is a term called extraordinary circumstance; in other words, there
won't be any appeals based on the standards of the National
Environmental Policy Act, or any temporary court injunctions, unless
there is an extraordinary circumstance.
That is a provision in administrative regulations that governs the
management activities of forests that is really quite clear. Let me
count the number of ways an extraordinary circumstance could occur. It
is literally in the eye of the beholder, in the eye of the person who
wants to file the appeal. It probably broadens the effective
opportunity to bring an appeal to any of these actions on our public
lands when, on the other hand, the Senator from New Mexico would
suggest he was creating greater flexibility.
Organizations such as the NRDC or the Earth Justice Defense League,
the Sierra Club, the Wilderness Society, and the Southwest Center for
Biodiversity clearly could use this as the opportunity for which they
have already used the law, to lock up any effort or nearly all efforts
in attempting to deal with what we would hope would be an effective way
of thinning and cleaning.
You have heard me speak in the last days about the total amount of
acreage out there that is in crisis at this moment. We have about 74.5
million acres that are at high risk, and while we have that many,
Senator Domenici and I, and many of the colleagues who have joined with
us--I now see the Senator from Arizona in the Chamber, who is a
cosponsor, and the Senator from Montana--have asked that we only be
able to deal with about 10,000,000 acres, not opening the forest wide
open but a limited number, for a very real reason.
I believe it is fundamentally important that we show the American
people that when we stand on the floor of the Senate and talk about not
entering roadless areas and protecting old growth and merely thinning
and cleaning and bringing down the fuel loads and moving them out of
the forest, we want to prove it, we do want the American people to see
that what we say is, in fact, what we mean, and that the U.S. Forest
Service will go forward in a limited way to do just exactly that.
Do I want to prove the editorial writers of some of America's press
wrong? You bet I do. Because they are wrong, and they flat know it. In
fact, it reminds me of that news reporter from NPR who e-mailed some of
our environmental groups and said: Get me the worst case scenario so I
can disprove the logic or the arguments of the Senator from Idaho. And
the environmental group writes back and says: We can't give you any
worst case scenarios because we have them all on appeal and we have it
shut down so they don't exist.
So in other words, when we are concerned that the appeals route would
be used in these limited cases, the environmental groups have responded
that they are already using them, that they are not tolerating the
activities of thinning and cleaning.
So it is obvious why we would want to step forward and say, let us
use this limited opportunity to thin and clean and then show the
American people that there is a better way of conducting forest health
and allowing our forests to once again rejuvenate themselves for
watershed, for wildlife habitat.
My colleagues are here in the Chamber to speak. Let me conclude.
Even if the public policy of our country allowed it, 8 to 10 million
acres to be thinned on a 1.5- to 2-year basis, and average that out
over the next 20 years, we would still--because of the health of our
forests today and the fuel loading that exists and the bug kill and the
dead and dying--lose anywhere from 5 to 6 to 7 million acres a year to
wildfire. That is the reality of the environment in which we live, the
reality of the environment we are now trying to change so slightly to
return forest health.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Montana.
Mr. BURNS. I yield myself 5 minutes. I know there are other Senators
on the floor wanting to speak. I will just speak common sense.
Legalese is not my expertise. I leave it to those trained in the
discipline, as most of my expertise was on the farm.
This is a very troubling issue for one simple reason: What if anybody
were allowed to put in a garden and at the same time were prohibited
from doing any weeding or watering or doing anything to make it
produce--prevented from fundamental attention?
I am wondering if they would enjoy the fruits of their labor when
harvest time comes. They say history is the greatest blueprint to the
future. Throughout history, all creation on this earth, in order to
ensure its internal survival, it must have some kind of economic worth.
Now, that sounds hard and cold, doesn't it? But it happens to be a
very true fact. There are those who somehow choose to look at our
natural resources, or a natural landscape, and put it over into the
column called ``spiritual''--not logical, not economic.
[[Page S9021]]
Our forests cannot survive the ages with that approach. Under that
philosophy, what will survive longer than the forests is the pine bark
beetle. Fires will continue to exist--hotter--taking from the soil what
cannot be replaced by anything but old growth.
So as we approach this problem, I ask for common sense. What we are
trying to do here is a commonsense approach to settle our disagreements
on how we manage the forests. We hire the U.S. Forest Service to do
that. When their management practices are questioned, the burden of
proof falls on them to prove why that management practice will work,
but I see no proof offered by those making the appeal that the Forest
Service plan doesn't work. That is what we are trying to do--get it to
an impartial environment to settle those differences. That is all we
are asking. We are not changing any law, no environmental law, not the
Environmental Protection Act, not the Clean Water Act, not the Clean
Air Act, not the Forest Management Act. We are not changing any law. We
are not denying anybody's right to appeal or to have their day either
on an administrative appeal or a judicial appeal. We are not changing
that.
That was changed, however, with regard to South Dakota. So we are not
going that far. What we are saying is we are going to put the ball on
the 50-yard line, which requires the burden of proof both from the land
managers and by those who would disagree with them. That is all we are
asking. And then the third thing we are asking is that we get a vote, a
commonsense vote.
The American people, every night this summer, watched their forests
burn--every night. Such a waste. There was not only the loss of the
resource, but the loss of the wildlife and the habitat and the water
quality because the rains will come and the snows will come and the mud
will slide. Now, I don't know any other way to put that other than it
has been my experience in my years of working and living in an
environment of sun, water, and soil, and what it produces. So I am
sorry that we have to educate and remind people that what we see
outside in our natural environment does change.
Mr. President, I yield the floor to my friend from Arizona.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. KYL. Mr. President, I first ask unanimous consent to have printed
in the Record an editorial of the Arizona Republic this morning
entitled ``Forest Plan Has Merits.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
Forest Plan Has Merits
Interior Secretary Gale Norton may be correct about the
desperate conditions of America's western forests. And she
may be right, too, in her pitch that President Bush's Healthy
Forests initiative is a reasonable plan for bringing them
back to health.
But the Interior secretary--indeed, the entire Bush
administration--is over-optimistic in the extreme if they
truly believe environmentalists are going to leap on board
with it.
In Phoenix last week for a Native American economic
development summit, Norton detailed for the Editorial Board
elements of the initiative, which would treat about 10
million forested acres deemed in critical shape.
Much of the plan is inspired by the work of such Arizona
forest scientists as Wally Covington of Northern Arizona
University and Stephen Campbell of the University of Arizona,
both of whom have conducted or contributed to landmark forest
management studies.
Covington has proposed thinning Arizona forests to 19th
century conditions; Campbell's Blue Ridge Demonstration
Project envisions the way to do it: By authorizing private-
sector ``stewards'' who would perform commercial bio-mass
extraction. That is, private firms that would do mostly
small-tree logging, cleaning the forest of fuels and putting
the wood they chop to innovative uses. In Phoenix, Norton
passed around some intriguing examples of wood products
produced from small-diameter trees.
Already, though, critics are labeling the proposal as a
tree grab on behalf of the timber industry.
At the heart of their objections is the vast territory
targeted by Bush for treatment and the means he proposes to
accomplish it: Providing 10-year contracts to the
``stewards'' and placing restrictions on the burdensome
review process that so many thinning projects over the years
have had to endure.
Among the many Forest Service thinning projects reviewed
and appealed to death was the 7,000-acre Baca Ecosystem
Management Area in northeastern Arizona. After two years of
appeals and lawsuits, only 300 acres of the Baca project were
treated by the time the ``Rodeo-Chediski'' holocaust roared
through. Today, 90 percent of the Baca area is a wasteland of
dead, blackened stumps and sterilized soils.
Healthy Forests is on the right road.
Democrats in Congress are coalescing around a far more
limited plan that accepts many of Bush's premises but
restricts the bio-mass extraction to forests near
communities. That doesn't address the plague of deep-forest
destruction, and not just by fire. Federal wildlife officials
have identified 46 species of fish and birds that are
declining in population because of the thicketlike density of
the deep forests.
The president's ``stewardship'' proposal deserves
consideration. It seems tailor-made for Arizona, which today
has no logging industry at all. Just thick, tinder-dry
forests waiting to be consumed.
The forest need good stewards. Healthy Forests might become
a way to find them.
Mr. KYL. Mr. President, this editorial points out the plan that
President Bush has proposed, as largely reflected in the proposal
Senator Burns and Senator Craig and others have been talking about, is
the way to scientifically manage our forests. We are bragging a little
bit in Arizona because one of the scientists who pioneered this
technique is Dr. Wally Covington of Northern Arizona University at
Flagstaff. He and Stephen Campbell of the University of Arizona
conducted these landmark management studies and demonstrated that by
returning our forests to the conditions in which they existed 100 years
ago, we can save them from disease, insect infestation, and
catastrophic wildfire.
What that entails is going in and mechanically thinning and
removing--thinning the small-diameter trees that clog the forests and
removing that and the other debris from the forest--cleaning up the
forests, in effect; then when that debris has largely been removed,
introducing fire through a prescribed burn in the wet, cooler months of
October or November so the fire doesn't get out of control. There is
not nearly as much fuel to burn and it is cooler. Then, at that point,
basically we let nature take its course. Say the next summer a
lightening strikes a tree and starts a fire. What is going to happen
after this debris has been cleaned out and the fuel has been removed?
It will move along the grass and it may burn the grass and a few pieces
of dry limbs and debris on the floor; but since most of it has been
cleaned up, it is not going to create a crown fire, which causes all
the damage.
Since most of the small-diameter trees have been removed, it is not
going to have that ladder of trees to climb up to the canopy of the big
trees.
What you have seen on television is the preheating of these big
ponderosa pines from the forest fire. Then when the fire goes through
the smaller trees, it climbs up the ladder of the forest into the
canopy of the big trees and explodes into those giant fireballs we have
all seen and have been sickened by. That is what happened in Arizona
this year, when fires devastated an area the size of the State of Rhode
Island. That is how much burned in Arizona. When you look at the
moonscape-type of environment that now exists, you are sickened by the
reality that much of this could have been prevented.
It turns out there was a project that had been proposed by the Forest
Service in this area about 3 years ago, and there were about 2 years of
lawsuits and appeals by environmental groups to stop this so-called
Baca ecosystem management area. Well, the fire came through and only
about 300 acres had been permitted to be treated by the time the fire
came through because of the appeals that had been filed by these
environmental groups, as a result of which about 90 percent of the Baca
area has been burned. It is now nothing but sterilized soil and
blackened tree trunks with no branches or pine needles on them
whatsoever.
So the filing of the appeal by these environmental groups resulted in
about 90 percent of this area burning rather than being treated. Some
of the environmental groups will say they want to protect endangered
species or old-growth trees. Well, they protected neither in this case.
The fire came through and wiped them all out. Why? Because we haven't
been able to thin and do prescribed burning. We could not cut out that
dog hair thicket that exists in the forests because they have not been
treated before. It is called dog
[[Page S9022]]
hair thicket because they say a dog cannot run through it without
leaving half of its hair behind in the snarly little trees that are
growing in the area of the forest that needs to be treated.
What happens when the area is treated? You have cut out a lot of the
small-diameter material and taken out the debris, and you open up the
forest to the sunlight. You create an opportunity for grasses to grow,
and you reintroduce butterflies, birds, insects, and small and large
animals to the area.
All of a sudden, instead of a dead and dying ecosystem, you have
created a very vibrant and healthy natural ecosystem.
What is our goal with respect to the trees? Our goal is to try to
preserve as many of the old-growth and large-diameter trees as
possible. That is what is done when we thin the forests the way we are
talking about doing.
So why haven't we been able to come to some compromise on the
legislation we are talking about to enable us to do this? The reason is
there are radical environmental groups that, frankly, have control of
some of the politics of this issue with some of our colleagues and have
persuaded them that we are going to open it up to unfettered logging,
we are going to log the old-growth forests, we are going to clearcut
the western forests, we are going to take away any opportunity for
people to have input as to what is done, we are going to destroy all
the environment for endangered species, and so on.
All of that is simply wrong. It is not true. We are talking about
legislation that has very significant limits. These thinning projects
have to be approved by all of the different groups, the so-called
stakeholders, the environmental process, the NEPA process where the
forest plan has to have been followed.
The whole point of the stewardship projects, as they are called, is
to enable us to go in and clean out the forests, leaving the large
trees. That is the whole point.
Under our legislation citizens would be permitted to file a lawsuit
in court and appeal the plan if they want to. Nothing stops them from
doing that. All they have to do is point out to the judge: Look, the
object here was to save these big trees and cut out the underbrush.
Well, they are not doing that in this case, if there ever were such a
plan proposed.
I do not think they want to have to face up to the reality of what we
have proposed, which is a very reasonable way to manage our forests. In
many respects, they would rather cut off their nose to spite their
face. That is a phrase I used earlier today, and one of my young staff
said: What does that mean? It is a phrase my grandmother used to say.
It means you are basically so selfish about what you want to do that
you are not willing to look at the larger picture, which would enable
you to save yourself if you would apply management techniques.
We could apply this management technique to thin the forests and do
prescribed burning and, thus, prevent the kind of disease or forest
fires that in the past have ravaged these forests and absolutely wiped
out the habitats. Some people would rather have the fires exist to
catastrophically burn the entire area and ruin the habitat for the
endangered species and all other species because at least that did not
permit the loggers to log big trees. That is right, it did not permit
the cutting of any kind of trees.
What was the result? It burned the entire forest. So the entire
ecosystem is now dead, and it will take literally hundreds of years to
come back and produce those big, beautiful trees we all want to save.
It is a sorry state of affairs that we have not been able to achieve
a result on this issue. I hoped we would have been able to do so. I
hope my colleagues will not vote for cloture when that vote comes in
the next 10 or 15 minutes.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. KYL. Mr. President, I see no one else in the Chamber to yield
time, so I ask unanimous consent to speak an additional 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator is recognized for an additional 5 minutes.
Mr. KYL. Mr. President, I will go on to explore this a little bit
more.
One of the techniques of the opponents of what we propose is to say--
we all agree with the management. I have not heard anybody say they
disagree with this thinning and prescribed burning management
technique, but they want it done in an area called the urban/wildland
interface; that is to say, where the forest meets communities--summer
homes, small towns, so on. We will thin an area a quarter of a mile,
maybe half a mile, around these communities and structures and,
therefore, save them from catastrophic wildfire; that ought to do the
trick.
That will not do the trick. In the first place, it is a nice
sentiment to try to save small communities and buildings, but that is
only part of what we are about here. We are literally about saving the
forests themselves, the entire ecosystem, the place where all the flora
and fauna live and survive, where the endangered species live. Most of
the endanger species do not live right on the edge of the communities.
Why would we not want to create a healthy environment for the
endangered species and for the other flora and fauna in the forests?
Why would we not want to treat in the middle of the forest rather than
just along the roads, by the homes or small communities?
Of course, we want to save them from catastrophic wildfires, but the
best way to do that is to treat the entire forest so the fires do not
get a big momentum to roll into the communities.
We had the unfortunate experience with the Rodeo-Chediski fire this
last summer where the fire was so large and burning so rapidly with
such intense heat that it was skipping right over areas that had been
treated. While it did not burn those areas, fortunately, because they
had been treated, it went on to burn other parts of the forest.
It is no salvation necessarily that we treat a small perimeter around
buildings or communities. That is not necessarily going to save them
from fire. Even if it does, as I said, we still have not treated the
rest of the forest, which is the whole object of returning health to
the forest. That is why you cannot just limit this thinning project to
the areas immediately surrounding communities. We will have done
nothing to save the rest of the forest from insects, disease,
mistletoe, and catastrophic wildfire that will destroy the trees and
the habitat for the mammals, birds, insects, and the fish that live in
the area we want to preserve. That is why it is no answer to say: Let's
do treatment in the urban interface area.
There were also attempts to put limits on how many board feet of
trees could be removed from these areas--250,000 board feet in an area,
for example; I think up to 1 million board feet in an area that had
burned. The board feet of timber calculated to exist in the Rodeo-
Chediski burned area is 100 million board feet. What was offered was
literally a drop in the bucket.
If we are going to salvage the timber that was burned, as the White
Mountain Apache Tribe is permitted to do on its part of the forest that
was burned, then we are going to have to have special relief because
there is no time to do all the studies that are necessary if anybody
files an appeal. If they do not file an appeal, then we can salvage
that timber, just as the White Mountain Apache Tribe is doing. If
someone files an appeal, there is no way to get to the timber before
the insects get to it. That is the choice we have. That is why we were
so anxious to get something done now instead of waiting.
As I said, it does not appear we have reached a consensus to do that,
and that is too bad because as the editorial I just put in the Record
points out, we do not have time to waste. We have to treat these
forests now or they will be subject to burning next year, and, in any
event, we will not be able to save them from the diseases that have
infected many of the forests today.
If there are others to speak, I will be happy to relinquish the floor
to them. In that regard, I suggest the absence of a quorum, but if no
one appears thereafter for a minute or two, then I will reclaim the
floor and speak some more.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S9023]]
Mr. KYL. Mr. President, I have checked with the Senator from West
Virginia, who has indicated he does not wish to speak at this time, and
therefore I will go ahead until one of our colleagues comes.
I want to tell a couple of stories about what I have personally
observed in our forests, and it might be of interest to others who
perhaps do not have these same kinds of trees in their States.
The country's largest ponderosa pine forest extends through the belt
of Arizona that runs literally from the Grand Canyon all the way to New
Mexico and then goes on into New Mexico. These trees look a little like
the giant sequoias in California. They are not quite as big, but when
they reach 300 or 400 years of maturity, they are very large, over 30
inches in diameter. They have a yellow bark with beautiful big
canopies, much like the sequoias in California. These are the trees we
are all trying to preserve.
I went to an area that was BLM land north of the Grand Canyon after
Secretary Bruce Babbitt, then-Secretary of Interior, had authorized a
thinning project for that area in the neighborhood of Mount Trumble.
Secretary Babbitt was able to do this because, as Secretary of the
Interior, he had control over the BLM land, and he basically ordered
that it be done, which was a good thing, too, because this is an area
with which he was familiar. He had gone hiking throughout the area many
times. He knew how desperately the area was in need of this treatment.
So I went up there to see the work that was being done, and the BLM
officer said: I have to show you this. Come look. And we drove to an
area where it was just as thick as could be, with tiny trees about this
size. There must have been thousands per acre. You could hardly wind
your way through the forest. None of them was more than 15 or 20 feet
high, if that. They were not very pretty. They precluded any grass from
growing. There were no animals, obviously, that could wind their way
through it. It was a pretty sterile environment, and they were
obviously crowding out other kinds of trees that one would have
preferred to see grow there.
We came to this huge ponderosa pine, one of the biggest trees I had
ever seen other than a redwood or a sequoia. The boughs literally came
all the way down to the ground. All around this tree was this brush,
these little scrub trees--maybe as tall as I am, maybe a little bit
higher--with trunks 3 or 4 inches around. It was literally a tinder
box.
This BLM agent said: We have to clear this stuff away immediately.
Any spark anywhere near here is going to set off a fire that is going
to come all the way through. It is going to run right up the boughs of
this tree and destroy this beautiful old tree.
He told me there were many more in this same area, and that is why we
had to hurry up and get this area treated.
That is what we are trying to do. We are not going to cut that tree
or any other trees that even approximate that size. The object is to
clear out all the other stuff so these big beautiful trees can continue
to grow in a healthy state, they will not have the competition for air
and water and nutrients from all of these little trees, and there will
then be grasses reintroduced, the animals can come up, as well as the
birds and the butterflies.
All of the studies by Dr. Covington that I mentioned earlier have
demonstrated that the species come back within a year. The pitch
content of the trees is enhanced significantly, so they are impervious
to the bark beetles. The protein content of the grass is increased by
an order of magnitude, so the elk and the deer come back. When all of
the little mammals come back, then the hawks and the eagles come back,
the butterflies begin to pollinate, and all of a sudden there are
hundreds of more species of flowers and weeds and grasses than there
were before, and there is a park-like condition where there are far
fewer trees per acre but it is to the carrying capacity of the land.
So there may only be 150 or 250 trees per acre at that point, but
they are all beautiful trees that are going to be healthy and in an
environment where the rest of the forests can survive as opposed to the
kind of thing about which I was talking.
Now why would people object to doing that? I had a group of
environmentalists come into my office, and I asked them: Don't you
agree that this is the right science? And they finally said: Yes.
I then said: Why won't you do it?
They said: Well, you do have to have commercial companies come in and
do this thinning; right?
I said: Yes, of course.
And they do have to make a profit; right?
And I said: Yes.
And they are not going to work for free. They have to make some
money.
I said: You don't object to that, do you?
They said: No, but what we are worried about is that 25, 30, or 40
years after all of this is done and you have treated all of the forests
that need to be treated this way, then they will turn their chain saws
on the big trees because they will want to save their jobs and save
their mills and stay in business, and that is what we are concerned
about.
I was dumbfounded at the suggestion that that would actually happen.
If all of us who want to save the forests are as concerned in 40 years
as we are now--and there is no reason to believe we will not--none of
that would ever be permitted to happen. This again falls into the ``cut
off your nose to spite your face'' category. In order to achieve
something good, we are going to have the potential of something bad
occurring 40 years down the road, a potential that is so small that it
is just unthinkable it would ever happen? But because of that little
potential in their minds, they are going to prevent us from treating
the patient now?
It seems very illogical. It is like saying we are not going to treat
the patient's cancer now because the patient will live but eventually
the patient is going to die; therefore, there is no point in treating
the patient now.
It does not make sense to me, and that is why I think it is a shame
we have not been able to reach some kind of agreement on the kind of
plan we were talking about that would have limited the amount of
acreage that would be treated. It would have limited it to those areas
that are so-called class 3 areas, which are the ones most in need of
treatment where the danger of catastrophic wildfire is the greatest. We
are not even talking about the class 2 or class 1 areas, just class 3.
Within that, it would be further limited in the legislation we have
been discussing. We were even willing to limit it to areas of municipal
watersheds and urban interface as long as those were broadly enough
defined to include the kind of forests we are talking about here, the
part of the area that needs to be treated.
None of that was acceptable to those groups that do not want us to
treat the forests. As a result, we are going to have another year pass,
presumably, unless we are able to do something next spring, where we
are subject to these catastrophic wildfires and the forest continues to
deteriorate.
At what point, do we finally say, it is worth it to go in and treat
these forests? Since there is not enough money in the world to pay
AmeriCorps volunteers to go in and do this by one-half acre at a time,
we have to have commercial enterprises that are able to go in and take
out enough product that they can stay in business. That product can be
very small diameter product. It can be poles for construction of
cabins. It can be 2-by-4-sized timber. It can be the chipped product
that makes fiberboard. In some cases, they may get to medium-sized
trees that can actually produce some timber. But if so, why not? If the
carrying capacity of the acre is such that some of the trees should be
removed, even the so-called medium-sized maybe even 15 or 20 inches in
diameter, why wouldn't one do that if what they were leaving were still
the very large growth trees we are all talking about protecting?
Senator Craig made the offer that at least 10 of the biggest old-
growth trees would have to be left. We can probably multiply that and
say 100. The bottom line is, those are the trees we are trying to
leave. So if the carrying capacity of the land will carry 100, 150, or
200 of those trees, that is how many would be left. Nobody is trying to
cut the big beautiful trees down.
In the areas Senator Domenici and I represent, it is a dry enough
condition in Arizona and New Mexico that we cannot stand many more
summers of
[[Page S9024]]
drought before these forests are going to be all burned up. That is why
we have been so disappointed at not being able to get into those
forests now and begin this process of taking out the dead and dying
timber and cutting out the small-diameter timber that is precluding the
rest from growing.
I saw the treatment area we have been experimenting with in Arizona.
I saw the results of this thinning, and the species that have come back
are just amazing--the birds and the butterflies and the wildflowers. It
is incredible what can be done if this is actually permitted to go
forward, and so I hope there is a way to do it. I regret we have not
been able to find that way yet.
I thank Senator Craig and Senator Domenici for their work, and I
yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. BURNS. I yield 2 minutes to the Senator from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico is recognized for
2 minutes.
Mr. DOMENICI. Mr. President, I thank Senator Kyl, Senator Reid, and
Senator Craig for commenting on the Domenici-Craig amendment, on which
the Senator has joined from the very beginning.
I hope everyone will understand this is a very serious situation. We
honestly believe there is a compromise that would work, that would
prove that we can clean up parts of our forest without in any way
damaging the so-called old forest trees, doing it in almost a manicured
fashion so long as it is understood what was permitted to do.
It is imperative we send a signal to the American people, not all of
whom are in the West. Those in America who saw the fires from a
distance know something is wrong. They probably know it got in this
condition over many years and will not be fixed tomorrow. They probably
concluded we ought to try to fix it.
We are trying to have a year consistent with good rules and good
solid approach to management so we can start this process so the users
of the forest, and those who recreate, graze cattle, have forests in
their backyard, all understand we can begin this cleanup process and
move in the right direction so we can start a more major cleanup next
year when we try to put new policies into effect to save the forests
and not see them go up in flames.
Mr. CRAIG. Mr. President, I know the vote is pending. We all want to
see the Interior appropriations bill move on. I have said to Senator
Reid what we normally do with a second-degree amendment is give it a
vote. We certainly would like that vote on our amendment. We think it
is appropriate. We think it is within the rules. It is a responsible
way to dispose of this issue and move on. I hope we get to that vote.
We think it is right. It is appropriate. It is within the rules.
It is important for the Congress and this Senate to speak to the
issue of forest health and do so in some form. We think the amendment
is adequate in that.
Mr. REID. Mr. President, the Senator from New Mexico is on his way
and wishes to speak on this matter. The Senator from West Virginia has
22 minutes, and Senator Wellstone wishes to speak. We will see what
happens.
In the meantime, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BYRD. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, I yield 3 minutes to the distinguished
Senator from New Mexico, Mr. Bingaman.
Mr. BINGAMAN. Mr. President, I appreciate my friend and colleague,
Senator Byrd, yielding time.
I will speak briefly about the forests and the fire-thinning
proposals and the fire-risk reduction proposals pending in the Senate.
One amendment Senator Craig proposed is an amendment to the Byrd
amendment to the bill. That certainly is a worthy proposal, in many
respects. I don't agree with all aspects of it. I have offered an
alternative that I think makes more sense. I am glad to go into the
detail. I have done that once in the Senate, and I am glad to do it
again.
Procedurally, people need to realize there is no reason we should be
holding up action on this bill or on the Byrd amendment because of the
issue of forest thinning. The forest-thinning proposal Senator Craig is
offering can be offered as an amendment to the bill. My proposal can be
offered as an amendment to the bill. We can get a good debate on those
two proposals. I would hope we could come together around a single
proposal. We have been working to do that. Either way, there is no
reason going forward with the Byrd amendment should be in any way
impeded by the need to resolve this forest-thinning issue. We can
resolve the forest thinning issue on separate amendments and have the
debate appropriate to that.
I believe on the merits what I proposed is a better way to go as an
amendment to an appropriations bill because it does not make major
changes in the underlying law. It does not make major changes in the
authority for Federal courts. For that reason, I hope when we do get to
a vote on forest-thinning proposals I will have a chance to persuade my
colleagues.
Mr. REID. Will the Senator yield?
Mr. BINGAMAN. I am happy to yield.
Mr. REID. It is also my understanding that under the procedures now
before the Senate--regarding the drought assistance measure, which
passed by 79 votes--if this vote does not go, that money that we voted
to approve for the farms is gone for those who are desperate for the
money all over the country; is that true?
Mr. BINGAMAN. Mr. President, in response, I agree entirely with the
Senator from Nevada. It is very important to Senators on both sides of
the aisle for the drought relief assistance to be made available in
short order. I hope very much we can move ahead with that.
We can also do this forest thinning issue. I am not suggesting we
complete action on this bill absent completion on the forest thinning,
but we can do separate amendments. Senator Craig can offer his
amendment to the bill; I can offer my amendment to the bill. We can
have a good debate. Hopefully, we can persuade the Senate on a proposal
that makes good sense for everyone and gets the job done.
Mr. REID. Senator Wellstone is actually on the subway on his way
over.
Mr. DOMENICI. Would the Senator permit me to ask Senator Bingaman a
question?
Mr. BYRD. Mr. President, I yield 1 minute to each Senator for that
purpose.
Mr. DOMENICI. I wanted to exchange a couple of points with my
colleague. I don't know if the Senator had a chance today to read the
Santa Fe, NM, editorial about thinning forests.
Mr. BINGAMAN. I did not read that.
Mr. DOMENICI. In this very short time I will try to paraphrase it.
They were talking about what a wonderful event it will be for the Santa
Fe watershed--which the Senator and I have seen a number of times--when
we get around to cleaning it and then thinning it, so that if water or
fire would fall on the upper watershed, it would not do violence to the
water, which is the long-term lifeblood for the city. I just wondered
if the Senator might recognize that when we are finished tonight, if in
fact the amendments are no longer in order, or if they are in order,
that we will still be left with an issue of whether watersheds are
going to be included in this new approach? And, if so, how much of a
watershed--how much of that watershed can be done in Western States?
Isn't that one of the issues remaining?
Mr. BINGAMAN. In response to my friend and colleague from New Mexico,
I agree with him that it is an extremely important part of the issue,
as to the thinning debate, what additional authority we provide to the
Forest Service to accomplish thinning within watersheds. I have a
proposal which I have shown to my colleague that I believe provides
ample authority, particularly in the Santa Fe watershed, for them to do
everything they would like to do there. I think the earlier proposal
Senator Craig has will do that same thing, in fact do quite a bit more.
Mr. DOMENICI. Right.
Mr. BINGAMAN. I think it is an important issue for us to get
resolved, but I think both proposals do the job with regard to the
specific issue that the Senator has raised.
[[Page S9025]]
Mr. DOMENICI. I thank the Senator for yielding the minute. I assume I
have 10 seconds left.
Mr. BYRD. I don't like to yield 10 seconds. I yield the Senator an
additional minute. Does this Senator wish additional time?
Mr. BINGAMAN. No, thank you.
Mr. DOMENICI. I say to my friend, I hope after this vote, before we
finalize this, we might one more time sit and look at this. I think we
have narrowed the issue that is most in our minds to be resolved.
I understand you have a proposal in good faith. We have one in good
faith. Somehow or another it is assumed by both sides that theirs each
will do what will help solve this problem. If we had a little more
time, if you could meet with us, it would be greatly appreciated.
I thank Senator Byrd.
The PRESIDING OFFICER. Who yields time?
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
this quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE addressed the Chair.
Mr. BYRD. Mr. President, how much time does the distinguished Senator
wish me to yield to him?
Mr. WELLSTONE. I say to my colleague, less than 5 minutes.
Mr. BYRD. Do I have 5 minutes remaining?
The PRESIDING OFFICER. The Senator has 9 minutes.
Mr. BYRD. I yield 5 minutes to the distinguished Senator from
Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota is recognized for 5
minutes.
Mr. WELLSTONE. Mr. President, this is really an amendment that has
everything in the world to do with whether or not a lot of people in
northwestern Minnesota are going to go under economically or not. We
had 79 votes to provide this disaster assistance. For northwest
Minnesota, this will probably be about $300 million.
There are some who say the administration has shown they understand
it is a serious problem because they are going to commit $850 million
for drought relief. First, this is a 50 cent fix to a million dollar
problem. Second, I don't think taking this small amount of money out of
the School Lunch Program and helping people for a couple of weeks is
the answer to what has happened around our country--be it fire or be it
floods or be it drought.
I was up in northwest Minnesota on Friday. I do not know how I can
continue to go back up there and explain to people how it can be that
week after week this is being blocked. As far as I am concerned, we can
have up-or-down votes on all these amendments. That is my own view. But
I say to my colleagues, I implore them, I beg you, let's break this
traffic jam and let's have the votes and let's move this forward.
Really, time is not neutral for so many of the independent producers
and the farmers in northwest Minnesota. The FEMA assistance has been
great, but it is not going to help them. There has been massive damage
to cropland. Crop insurance comes nowhere near covering it. We have had
this ridiculous debate about how it is going to come out of the farm
programs. It is not going to happen. CBO won't score it that way. But
close to $6 billion nationally will not be additional money we are
going to spend on the farm program because prices are up. But for the
farmers in northwest Minnesota and the producers in northwest
Minnesota, they have no production.
For me as a Senator, this is the priority. It is just impossible to
meet with people--without sounding melodramatic--to just look at their
eyes and know what they are going through and explain how, once again,
this is being blocked or filibustered. I know we are not going to win
on this vote, but I urge colleagues to please vote for cloture. It
would make a huge difference to a lot of really honest, hard-working,
salt of the Earth people in northwest Minnesota.
I yield the floor.
Mr. REID. Mr. President, with the consent of the managers, I ask the
time be yielded back so we can vote.
Mr. BYRD. I yield my time remaining.
The PRESIDING OFFICER. All time is yielded back. Under the previous
order, the question is on agreeing to the motion to table amendment No.
4522. The yeas and nays have been ordered. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Montana (Mr. Baucus), the
Senator from Massachusetts (Mr. Kerry), the Senator from New Jersey
(Mr. Torricelli) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``Aye''.
Mr. NICKLES. I announce that the Senator from Alaska (Mr. Murkowski)
and the Senator from Arkansas (Mr. Hutchinson) are necessarily absent.
The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 80, nays 15, as follows:
[Rollcall Vote No. 220 Leg.]
YEAS--80
Akaka
Allard
Allen
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carper
Chafee
Clinton
Cochran
Collins
Conrad
Craig
Crapo
Daschle
Dayton
DeWine
Domenici
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchison
Inouye
Johnson
Kennedy
Kohl
Leahy
Levin
Lincoln
Lott
McCain
McConnell
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wellstone
Wyden
NAYS--15
Carnahan
Cleland
Corzine
Dodd
Ensign
Helms
Inhofe
Jeffords
Kyl
Landrieu
Lieberman
Lugar
Nickles
Reid
Sessions
NOT VOTING--5
Baucus
Hutchinson
Kerry
Murkowski
Torricelli
The motion was agreed to.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, pursuant to rule XXII,
the Chair lays before the Senate the pending cloture motion, which the
clerk will report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on Senator Byrd's
amendment No. 4480.
Joseph Lieberman, Harry Reid, Jean Carnahan, Daniel K.
Inouye, Christopher Dodd, Herb Kohl, Jack Reed, Richard
J. Durbin, Kent Conrad, Paul Wellstone, Patrick Leahy,
Jeff Bingaman, Barbara Boxer, Byron L. Dorgan, Mark
Dayton, Debbie Stabenow, Jim Jeffords, Robert
Torricelli.
The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that debate on the Byrd amendment No. 4480 to H.R. 5093, the Department
of Interior and Related Agencies Appropriations Act, shall be brought
to a close.
The yeas and nays are required under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Montana (Mr. Baucus), the
Senator from Massachusetts (Mr. Kerry) and the Senator from New Jersey
(Mr. Torricelli), are necessary absent.
Mr. NICKLES. I announce that the Senator from Arkansas (Mr.
Hutchinson) and the Senator from Alaska (Mr. Murkowski), are
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 49, nays 46, as follows:
[[Page S9026]]
[Rollcall Vote No. 221 Leg.]
YEAS--49
Akaka
Allard
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wellstone
Wyden
NAYS--46
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Cochran
Collins
Craig
Crapo
DeWine
Domenici
Ensign
Enzi
Fitzgerald
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--5
Baucus
Hutchinson
Kerry
Murkowski
Torricelli
The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are
46. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
____________________