[Senate Report 105-361]
[From the U.S. Government Publishing Office]
Calendar No. 685
105th Congress Report
SENATE
2d Session 105-361
_______________________________________________________________________
TO DEEM THE ACTIVITIES OF THE MICCOSUKEE TRIBE ON THE TAMIAMI INDIAN
RESERVATION TO BE CONSISTENT WITH THE PURPOSES OF THE EVERGLADES
NATIONAL PARK, AND FOR OTHER PURPOSES
_______
October 2, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1419]
The Committee on Indian Affairs, to which was referred the
bill (S. 1419) to deem the activities of the Miccosukee Tribe
on the Tamiami Indian Reservation to be consistent with the
purposes of the Everglades National Park, and for other
purposes, having considered the same, reports favorably thereon
with an amendment in the nature of a substitute and recommends
that the bill (as amended) do pass.
purpose
The purpose of S. 1419 is to enlarge the area within
Everglades National Park (ENP or Park) which is treated as a
reservation of the Miccosukee Indian tribe. As amended by the
Committee, the bill will provide a detailed legislative
framework for permanent tribal residence within the boundaries
of Everglades National Park. The bill replaces the current
framework, which provides the National Park Service with little
guidance on how and when to review tribal decisions that might
have an impact upon the Park.
background
Pursuant to a state law signed by Florida Governor Sidney
J. Catts on May 9, 1917, the trustees of the Internal
Improvement Board of the State of Florida transferred 99,200
acres in Monroe County to the ``Board of Commissioners of State
Institutions,'' Florida's cabinet, ``for the perpetual use and
benefit of the Florida Indians.'' 1 As one historian
explains, ``Little opposition had developed to the bill, for in
a hearing before the Internal Improvements Board it was pointed
out that, outside of hunting and fishing activities, the land
had little value for the whites and that nobody had plans for
its use except as a Seminole reservation.'' 2 This
changed when plans began to be laid for the use of the lands as
a national park.
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\1\ James W. Covington, ``The Seminoles of Florida,'' p. 185
(1993).
\2\ Id.
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In 1929, Congress directed the Secretary of Interior ``to
investigate and report to Congress as to the desirability and
practicality of establishing a national park, to be known as
the Tropic Everglades National Park, in the everglades of Dade,
Monroe, and Collier Counties of the State of Florida, for the
benefit and enjoyment of the people of the United States * * *
.'' 3
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\3\ Act of March 1, 1929, c. 446 (45 Stat. 1443).
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One December 3, 1930, Interior Secretary Ray Lyman Wilbur
submitted the required report to Congress expressing his
opinion that the establishment of a national park in the
everglades is an idea of ``outstanding merit.'' His report
explained:
[t]he area is of national and not merely local
interest. The tropical-plant and animal life, the
excellence of the fishing, and the bird life, which is
remarkable both for the number of species and for the
abundance of birds, evidences of prehistoric human
occupation and the present Seminole Indian [presence],
are sufficient to give the area a national interest.''
4
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\4\ S. Rep. 73-50, 1st Sess., p. 12, (Letter of Ray Lyman Wilbur,
Secretary of Interior, to President of the Senate, December 3, 1930)
(emphasis supplied).
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His report goes on to state:
[t]here seems to be some question as to whether or not
there is a specific reservation for the Seminole
Indians within the [proposed park boundaries] and this
will have to be further investigated
locally.5
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\5\ Id. at 15.
The Everglades National Park was established through the
Act of May 30, 1934, 48 Stat. 816. The Act provides: ``[when
title to all the lands within the boundaries to be determined
by the Secretary of Interior * * * in his report to Congress of
December 3, 1930, * * * shall have been vested in the United
States, said lands shall be, and are, established, dedicated,
and set apart as a public park for the benefit and enjoyment of
the people and shall be known as Everglades National Park[.]''
Section 3 of the Act provides that the development of the
Park ``shall be exercised under the direction of the Secretary
of Interior by the National Park Service'' with the following
proviso: ``[that nothing in sections 1 through 4 of this title
shall be construed to lessen any existing rights of the
Seminole Indians which are not in conflict with the purposes
for which the [Park] is created.'' 6
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\6\ 16 U.S.C. Sec. 410b.
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On the day the bill creating the Park was passed by the
House of Representatives, this provision was discussed on the
House floor with the Chairman of the Committee on Public Lands:
Mr. Kvale. I rise * * * to ask the chairman of the
committee if he can give us any information regarding
whether or not the Indian wards of the Government have
been taken care of?
Mr. DeRouen. Yes. It is proposed by the Park Service
to place the Seminole Indians in the park to be used as
guides and to be employed in other ways * * * it is
proposed to leave them there and use them as guides
throughout the park.
Mr. Kvale. In other words, they will be permitted to
remain relatively undisturbed in their own country and
in their own homes?
Mr. DeRouen. Yes. Of course their actual reservation
is outside the park; but we propose to bring them into
the area, and it is the purpose of the Park Service to
do so.7
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\7\ Cong. Rec. May 24, 1934, p. 9509.
Upon transferring state reservation lands known as the
Monroe Indian Reservation to the federal government for
inclusion within the Park, the State of Florida sought to
mitigate the impact of the loss of those lands by designating
104,000 acres north of the Park in Broward and Palm Counties as
a state Indian reservation. Everglades National Park was
dedicated in 1947.
The Indians residing within or near the everglades when the
lands were transferred to the Park refused to move to the new
state reservation as they had eschewed previous attempts to
encourage their relocation to federal or other state
reservations established for Seminole Indians within Florida.
Instead, they remained within the Park or along the Tamiami
Trail. In this manner, the Miccosukee tribe continued to exist
as politically and culturally distinct from the larger Seminole
Indian tribe.\8\ (In 1957 the Seminole tribe adopted a
constitution pursuant to the Indian Reorganization Act (IRA),
the Act of June 8, 1934, c. 576, 48 Stat. 985).
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\8\ For example, the Miccosukee Seminole Nation initially opposed
the filing of a claim by the Seminole Tribe before the Indian Claims
Commission. The Commission refused to dismiss the case and the
Miccosukee tribe subsequently intervened several years after it was
recognized in 1962.
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With the assistance and encouragement of the Bureau of
Indian Affairs, the tribe drafted an IRA constitution. On
January 11, 1962, the Miccosukee Tribe's Constitution and
Bylaws were certified by the Secretary of the Interior. Later
that year, a permit was issued by the Department of Interior,
which authorized the tribe's use of an area along the road
frontage at the northern end of the Park. The permit area was
500 feet wide and five miles long containing 333 acres. The
August 29, 1962, letter of transmittal states:
this act[ion] is taken consonant with the Act of May
30, 1934, which provided for the establishment of
Everglades National Park. The reference is especially
to the section of that [A]ct which said that nothing
should be done that would interfere with the existing
rights of the Seminole [Miccosukee] Indians. The
implication was that Congress wanted to give every
consideration to the [Tribe]. This permit follows the
intent of Congress.
In addition, providing a tribal land-base was an essential
attribute of the federal policy of economic and political self-
determination.\9\ Administrative, housing, and educational
facilities, along with a clinic, were constructed on the tribal
land base. Indeed, even before the Indian Self-Determination
and Education Assistance Act, P.L. 93-638, made such
arrangements routine, the tribe contracted with the BIA to
provide federal services to its members.
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\9\ In 1960, the federal government began to reconsider the policy
of terminating the federal relationship with Indian tribes. In place of
that policy, it began to develop the policy of tribal self-
determination, which has been affirmed and expanded by each subsequent
administration. See, e.g., Message of President Nixon to Congress
Transmitting Recommendations for Indian Policy, H.R. Doc. No. 363, 91st
Cong. 2nd Sess.
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As amended, the permit's terms include the following
provision: ``Construction-No building or other structure shall
be erected under this permit except upon prior approval of
plans and specifications by the Director, National Park
Service, and the premises and all appurtenances thereto shall
be kept in a safe, sanitary, and sightly condition.'' The fifty
year permit is scheduled to expire in 2014.
the need for legislation
The tribe and the National Park Service have been able to
reach accommodations and agreements on a number of issues;
often with the participation of other Interior agencies such as
the Bureau of Indian Affairs (BIA). Nevertheless, significant
questions have been raised over whether continued reliance on
the statute establishing the Park provides an adequate
framework for addressing the issues raised by the tribe's
presence within the Park.
Under present law, conflicts between the tribe and the Park
Service may occur on a wide range of issues. For example, the
Tribe testified that its applications to construct housing and
other important community infrastructure needs have languished
without Park Service action. Frustrated by this lack of
progress, the tribe proceeded to apply for the necessary dredge
and fill permit under Sec. 404 of the Clean Water Act. The Park
Service opposed this action, claiming that the tribe's
ownership interest in the permit land was insufficient to allow
them to obtain such a permit.\10\
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\10\ The Everglades National Park: Hearings before the House
Subcommittee on National Parks and Public Lands of the Committee on
Resources, 105th Congress 1st sess., 105-65, p. 7 (Sept. 25, 1997).
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The Interior Department points out that the delay in
responding to tribal applications was due in part to the Park
Service's need to respond to a contemporaneous natural resource
crisis; Hurricane Andrew. The Park Service also points out the
lack of analogous situations within other National Parks merely
creates the appearance that their responses to the tribe are ad
hoc. The Department has also expressed concern with the
tremendous amount of resources, both federal and local, that
are directed at improving the everglades ecosystem restoration.
It argues that federal statutes make these restoration efforts
its first priority.
Nonetheless, the assertion that the tribe's interest in the
permit lands is legally insufficient to apply for a Sec. 404
(dredge and fill) permit adds to the tribe's uncertainty about
whether its residency in the Park might expire with the present
permit in 2014. As the United States Court of Appeals
explained, there are four critical elements necessary for
tribal sovereignty: water rights, mineral rights, government
jurisdiction, and land. City of Albuquerque v. Browner, 97 F.3d
415 (10th Cir. 1996). The present situation results in
significant uncertainty with respect tothe latter two elements.
This is inconsistent with the federal policy of self-determination. It
is also contrary to the principle that the tribe's rights would be
accommodated within the Park.
Representative James Hansen, the Chairman of the House
Subcommittee on National Parks and Public Lands of the
Committee on Resources described the situation this way:
``[u]nfortunately, the growth needs of the tribe and the
mission of the Park Service have seemed to clash in recent
years.'' He explained that he was ``concerned that the
Department [of Interior] is managing the Miccosukee Tribe
through the Park Service. This is not an appropriate role for
the Park Service. * * * Yet, the Park Service does have the
mandate to protect the resources of the park.'' \11\
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\11\ Id. at 1.
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LEGISLATIVE HISTORY
S. 1419 was introduced on November 7, 1997 by Senator
Connie Mack of Florida and referred to the Senate Committee on
Indian Affairs (Committee).
A nearly identical measure, H.R. 3055, was introduced by
Representative Alcee Hastings in the House of Representatives
on November 13, 1997 and referred to the House Resources
Committee and the House Transportation and Infrastructure
Committee, where it was referred to the Subcommittee on Water
Resources and the Environment.
On June 11, 1998, the House Resources Subcommittee on
National Park and Public Lands held a subcommittee meeting.
Subcommittee Chairman James V. Hansen of Utah offered an
amendment in the nature of a substitute to H.R. 3055, which was
adopted along with technical amendments and reported to the
full Resources Committee with an amendment in the nature of a
substitute. On July 22, 1998, H.R. 3055 was amended and
reported to the House Resources Committee. On September 11,
1998, the Committee on Natural Resources reported the bill to
the House of Representatives with amendments.
On July 8, 1998, the Senate Indian Affairs Committee held a
legislative hearing to consider S. 1419. At the hearing, Edward
B. Cohen, Deputy Solicitor for the Department of Interior
testified on behalf of the Administration. Mr. Cohen testified
in opposition to S. 1419. He indicated that the Department was
negotiating with the tribe to produce a bill that addressed a
number of issues that were not necessarily covered by S. 1419,
as introduced. Mr. Cohen expressed hope that the Department
would soon be able to support a compromise bill:
I am pleased to report that the Tribe and the
Department have been engaged in serious, detailed and
constructive discussions to develop a legislative
proposal which meets the Tribe's current and future
needs while protecting the interests of Everglades
National Park and the restoration of the South Florida
ecosystem.
The results of these discussions are incorporated in the
amendment in the nature of a substitute offered by Senator
Mack. On July 29, 1998, the Committee favorably reported this
amendment in the nature of a substitute.
SUMMARY OF PROVISIONS
Findings and purposes
The Congressional Findings point out that the tribal
population is growing ``as have the needs and desires of the
Tribe and its members for modern housing'' and other
facilities. The tribe has been an integral part of efforts to
restore the everglades ecosystem. It has recognized that the
expanded Permit areas is located in an area ``critical to the
protection and restoration of the Everglades.'' Therefore, both
the findings and substantive provisions of the bill commit the
tribes to these efforts.
The purposes of the bill are grounded in two important
federal policies. The first is the federal policy of tribal
self-determination, based upon a government-to-government
relationship between Indian tribes and the federal government.
The statute establishing the ENP preceded the enactment of the
Indian Reorganization Act (IRA) of 1934,\12\ which established
the new federal policy of limiting federal domination of tribal
decision-making. Thus, event though 16 U.S.C. Sec. 410b seeks
to preserve the tribe's rights, it is susceptible to criticism
that it is neither grounded nor consistent with principles of
tribal self-determination or a government-to-government
relationship. S. 1419 seeks to eliminate these concerns because
the framework it establishes was negotiated between the Tribe
and Department. In addition, the Act seeks to encourage and
facilitate further negotiated settlements.
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\12\ Act of June 18, 1934, c. 576, 48 Stat. 985. Prior to the IRA,
federal policy undermined tribal authority in a number of ways,
including the allotment and diminishment of the tribal landbase.
Recognizing the impact of that policy, the IRA sought to preserve and
foster tribal authority by ending and reversing the diminishment of
tribally owned lands.
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The second purpose of the bill is to ensure that the
existence of an enlarged Miccosukee Reserved Area does not
interfere with efforts needed to support restoration of the
ecosystem in South Florida.\13\
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\13\ See, e.g., P.L. 104-303, the Water Resources Development Act
of 1996, Sec. 528, the Everglades and South Florida Ecosystem
Restoration Project.
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Tribal rights and authority on the Miccosukee Reserved Area
The bill terminates the special use permit issued to the
Tribe by the Department of Interior. In place of the permit,
the bill recognizes the tribe's presence within the Park,
without compromising the objectives for creating the Park.
Since intrusive federal management of tribal activities is
incompatible with the federal policy of tribal self-
determination, the bill addresses those matters where federal
oversight is necessary to ensure that tribal actions do not
threaten or create undo risks to the Park and leavesother
matters within the exclusive purview of the tribe.
Perpetual use and occupancy
As discussed above, a permanent tribal land-base has been
found to be essential to the federal policy of tribal self-
determination. Although the Act creating the Park explicitly
preserved preexisting tribal rights, the tribe still waited for
almost thirty years before its right to reside in the Park was
ratified through the issuance of a permit. Furthermore, the
specter of additional conditions being added to the permit, its
cancellation, or expiration are contrary to the principles of
self-determination.
Consistent with the federal policy of tribal self-
determination, the bill specifically addresses the nature of
tribal and federal authority within the MRA. As part of
treating the MRA as a federal reservation, subsection 5(c)
applies the ``Indian country'' designation to these lands. This
designation is intended to avoid any confusion or litigation
over the unique nature of the MRA. As the Supreme Court has
explained, the existence or absence of an Indian reservation,
as such, is not a talisman for determining whether land comes
within the statutory definition of Indian country. ``Congress
has defined Indian country broadly to include formal and
informal reservations, dependent Indian communities, and Indian
allotments, whether restricted or held in trust by the United
States'' \14\
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\14\ Oklahoma Tax Commission v. Sac and Fox Nation, 504 U.S. 114,
123 (1993).
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In 1961, the State of Florida accepted civil and criminal
jurisdiction over Indian lands pursuant to P.L. 83-280.\15\ In
1983, the United States Court of Appeals for the 11th Circuit
ruled that Florida's assumption of jurisdiction could not
include the Park:
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\15\ In 1968 Congress amended P.L. 83-280 to require tribal
consent, preventing states from unilaterally obtaining ``P.L. 280''
jurisdiction. P.L. 90-284, 82 Stat. 79 (1968).
The Federal statute [P.L. 280] provides that a state
may acquire jurisdiction over Indian affairs to the
extent that it has jurisdiction over offenses committed
elsewhere in the state. But, because the Everglades
National Park remains in the exclusive jurisdiction of
the federal government, Florida has not and cannot
extend its jurisdiction to cover Indian lands located
within the Park.\16\
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\16\ United States v. Daye, 696 F.2d 1305, 1307 (11th Cir. 1983).
This would seem to make any reference to P.L. 280 in the
bill superfluous. Nevertheless, the objective of this bill is
to seek to address as many potential issues as possible. Thus,
this section makes it clear that Congress does not intend that
P.L. 280 will apply within the MRA.
Although the definition of Indian Country at 18 U.S.C.
Sec. 1151 is concerned with the scope of criminal jurisdiction,
it is commonly employed by courts and Congress in the context
of civil jurisdiction as well. By treating the MRA as ``Indian
Country'' it is intended that the tribe will exercise the same
jurisdiction over those entering the reservation, either Indian
or non-Indian, member of non-member, that any other tribe would
exercise in an analogous situation within Indian country. In
addition, the Committee does not intend to place the tribe or
its members at any disadvantage with respect to rights or
services that they would possess if the MRA was formally held
in trust for the tribe by the United States on behalf of the
tribe.
The first sentence of section 5(d) accomplishes a similar
result. Even where the United States possesses exclusive
jurisdiction over an area,\17\ the United States has indicated
willingness, in some circumstances, to share concurrent
jurisdiction with states. To the extent that the United States
has or will share jurisdiction within the Park, neither the
United States or the State of Florida have any intent to do so
with respect to tribal lands. For example, the Florida statute
that authorizes state assumption of concurrent jurisdiction
over federal lands, provides that the state will not accept
concurrent jurisdiction over tribal lands without the tribe's
consent.\18\ The Indian Civil Rights Act of 1968 also requires
tribal consent before P.L. 280 is applied to a tribe's
reservation. Thus, both federal and state law preserve federal
jurisdiction over the entire MRA. This should not be construed,
however, to discourage the three sovereigns from working to
obviate any questions that may arise by entering into
cooperative agreements. This is especially encouraged with
respect to law enforcement matters. Indeed, the Committee notes
that section 8(g) specifically preserves authority to enter
into cooperative agreements.
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\17\ U.S. Constitution, art. 1, sec. 8, cl. 17.
\18\ Laws of the State of Florida, Chapter 86-67, June 5, 1986,
codified at Florida Statutes Annotated Sec. 6.075.
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Preservation of other rights
As discussed throughout this report, the organic act
establishing the Everglades National Park explicitly recognizes
the historic, cultural, and religious significance of the Park
to the Native People of Florida. Other acts of Congress have
included similar explicit references to these ties between the
Miccosukee and Seminole Tribes and the flora, fauna, land, and
water of the everglades region.\19\ This provision is included
to make it clear that the bill does not compromise any of these
rights.
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\19\ See, e.g., P.L. 93-440, Big Cypress National Preserve-
Establishment. ``The Miccosukee and Seminole Indians have traditionally
used much of this area for hunting, fishing and ceremonial purposes.
They are to be permitted to continue such usual and customary uses * *
*.'' S. Rep. 93-1128 (Aug. 22, 1974).
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Protection of Everglades National Park
As discussed above, the tribe's presence within the Park is
by no means incompatible with the purposes for establishing the
Park. By acting in a manner consistent with the provisions of
the bill, the land dedicated to the tribe's use within the Park
can be treated as a reservation, and remain a part of the Park,
consistent with, and fulfillingCongress' objective in
establishing the Park in 1934. However, some parts of the MRA were
formerly designated as part of the Marjorie Stoneman Douglas Wilderness
Area. Obviously, it will not be possible for these lands to be treated
as both a wilderness area and as part of the MRA. As a result, this
legislation should be construed to release the area designated as the
MRA from wilderness status.
Section 6(a)(2) provides that the Tribe shall be
responsible for compliance with all applicable laws, except as
specifically exempted by the Act. This provision is broad to
ensure protection of Park. It is not the Committee's intent,
however, to make any additional laws applicable (or conversely
inapplicable) to the tribe, except as provided in the bill.
Prevention of degradation
Because of the importance of water quality to efforts to
restore, preserve, and protect the Everglades, the bill sets
out how this objective will be met. The tribe is not to further
degrade the quality of water entering the MRA and released into
other parts of the Park if the water fails to meet water
quality standards as set by the State of Florida and approved
by the Federal government under the Clean Water Act, 33 U.S.C.
Sec. 1251 et seq. The tribe is not, however, responsible for
improving the water quality of such water.
With respect to water entering the MRA which meets
applicable water quality standards, the tribe shall not cause
the water to fail to comply with applicable water quality
standards.
Similarly, to the extent that a condition, activity, or
structure within the MRA significantly disrupts the flow of
surface or groundwater that would otherwise flow, either
directly or indirectly, into other parts of the park, the tribe
must prevent or abate the impediment.
Exotic plants and animals
The bill addresses a specific concern within the Southern
Florida Ecosystem, which is not related to any activities of
the tribe, but which is critical for all of those, like the
tribe, that are concerned with the health of the Ecosystem.
Exotic species have caused significant degradation within the
Everglades. Efforts to address harmful invasion species are a
significant element of preservation and restoration
efforts.\20\
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\20\ Strange Invaders Known as Exotics, Foreign Animals and Plants
Tend to be Little More Than Imported Environmental Nightmares, The
Tampa Tribune, Bay Life, August 12, 1998.
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Public access
The Supreme Court has characterized a tribe's right to
exclude or condition access to its lands as ``Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982). The bill
recognizes and preserves this important component of tribal
sovereignty, and makes it clear that the tribe itself has a
concomitant responsibility not to impede public access to Park
areas outside of the MRA, and to and from the Big Cypress
National Park. This should not be construed to require the
tribe to allow access to the MRA by non-tribal members, except
to those federal employees, agents, officers, and officials who
are carrying-out responsibilities under this Act. This point is
underscored in section 8(b) of the bill.
Preventing significant cumulative impact
By stressing that the tribe is to prevent and abate
significant cumulative environmental impacts, the bill
accomplishes two objectives. First, it allows all tribal
activities on lands owned and/or controlled by the tribe to be
taken into account when assessing their impact. Second, it
indicates a strong desire that the Tribe and other interested
parties, including the Park Service, work together to identify
the full range of activities planned or being considered by a
tribe and their cumulative impact. The act requires the tribe
to establish a specific set of procedures to implement this
process. These procedures balance the tribe's sovereignty with
the need to protect the unique and delicate everglades
ecosystem. under the bill, within 12 months the tribe must
establish a process that ensures that the public receives
notice and the opportunity to comment on major tribal actions
within the MRA if those actions may contribute to a significant
cumulative adverse impacts on the everglades ecosystem.
The procedures established by the tribe must include a
means for providing timely written notice to the Secretary and
consideration of any comments by the Secretary. This
requirement incorporates the philosophy of the National
Environmental Policy Act, (NEPA) which imposes a planning,
disclosure, comment, and response process, in place of specific
substantive requirements, to prevent and mitigate adverse
environmental impacts. Through this process, the tribe should
identify and evaluate both direct and indirect potential
impacts from the full scope of all segments of the construction
and related infrastructure. By establishing a comprehensive
site development plan, for example, the tribe could evaluate
cumulative impacts of its planned development, thereby enabling
the tribe, the Secretary, and the public to gain an overall
understanding of all development and its entire potential
cumulative impact within having to review any project or
element independent of any other or on a piecemeal basis.
Obviously, a major federal action will still require NEPA
review by the appropriate federal agency.
The Committee believes that the process established by the
bill balances the tribe's right to manage its own affairs while
recognizing that the MRA remains a part of the Park, even
though it is treated as a reservation. The Miccosukee tribe has
consistently worked to preserve the everglades ecosystem. With
this background and commitment, the Committee believes that the
most effective way to achieve the environmental objectives of
this bill is to ensure that the tribe creates a process that
allows it to be informed of the potential impact of its
activities on the rare, fragile, and interdependent Park
ecosystem. In this respect, notice to the Secretary and
consideration of his comments is critical. The Secretary has a
substantial body of information and expertise at his disposal
in considering and analyzing the impact of activities on the
everglades ecosystem.
Water quality standards
The bill balances the need to protect the water quality
within the Park, with the recognition of tribal authority in
the field of environmental protection in general, and water
quality protection in particular. See, e.g. 33 U.S.C.
Sec. 1377(e). The tribe is to adopt and comply with water
quality standards within the MRA that are at least as
protective as those established by the State of Florida for the
everglades and approved under the Clean Water Act by the
Federal government. Nothing in this bill is intended to be
construed to limit the tribe's authority to establish on-
reservation water quality standards, in the same manner as
other Indiantribes. Any water quality standards established by
the tribe for the MRA may not be more restrictive than the standards it
may establish for contiguous reservation lands that are not within the
Park.
Natural easements
A provision in the bill ensures that the tribe is not
authorized by this Act to engage in activities within the
natural easement areas established by the Act that are
inherently incompatible with their status as natural easements.
This provision does not divest the Department of Interior of
any authority it may have to engage in or approve activities
within the Park, including the easements.
Height restriction
This provision is an example of how the bill replaces ad
hoc decision-making with specific standards. Thus, instead of
forcing the tribe and the Park Service to negotiate about what
constitutes a reasonable height for facilities in light of the
tribe's needs and the purposes for creating the Park, the bill
establishes a general standard, with specific exceptions.
Nonetheless, it is not the Committee's intent to impose an
immutable standard that would leave the tribe and the
Department without any capacity to accommodate needs and
circumstances that can not be anticipated at this time. Thus,
the bill allows the Secretary to grant a waiver if it is found
that the needs of the tribe outweigh the adverse effect on the
Park.
Gaming
In general, the Interior Department has indicated that it
would not support legislation that includes a blanket waiver of
an Indian tribe's right to conduct gaming operations in
accordance with the provisions of the Indian Gaming Regulatory
Act, 25 U.S.C. Sec. 2701 et seq. Similarly, the Committee has
taken no action to proscribe a specific tribe's right to engage
in class II or class III gaming. However, in this particular
case, the MRA remains part of the Park. Also, the Committee
notes that Congress has already addressed the unique
circumstances concerning the Miccosukee Indian tribe. Section
2719(b)(3) of title 25 provides an exception to the IGRA's
general prohibition on use of trust lands acquired after
October 17, 1988 for gaming purposes. This exception applies
solely to the Miccosukee Indian tribe. During the 99th
Congress, a nearly identical provision was included in a bill
regulating Indian gaming. The Committee explained the need for
this provision in a report accompanying that bill. ``The
Miccosukee Tribe is unique in that its current trust lands are
located within the Everglades National Wildlife Refuge and thus
possibility for economic development within the boundaries of
the Reservation are extremely limited.'' \21\
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\21\ S. Rep. 99-483 (Sept. 26, 1986).
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Aviation
The bill places a constraint on commercial aviation to or
from the MRA. It is not intended to prohibit non-commercial
aviation activities, including such uses as resource management
or law enforcement.
Visual quality
Section 6(c)(3) provides that in the planning, use and
development of the MRA by the Tribe, it shall consider the
quality of the visual experience from the Shark River Valley
visitors use area. The Shark River Valley visitor use area is
one of the most important and strategic portions of the Park
for visitors to experience the uniqueness of the area. The
Everglades environment and its wildlife are interpreted in this
area probably better than anywhere else in the Park.
Development here has remained relatively simple and primitive.
There is presently a 15 mile, 2 hour tram tour through the
Everglades interior. National Park Rangers or experienced tram
drivers interpret the Park, its wildlife, vegetation and unique
ecology. Midway through the tour, the tram makes a rest stop at
Shark Valley Tower, a 50 foot observation tower from which the
visitor may view the vastness and grandeur of the wilderness.
Forty percent of the visitors to Everglades National Park stop
at the Shark Valley area. The tour and tower provide the
elderly and disabled, in particular, an opportunity to
experience the Park in a way not provided anywhere else.
While this legislation anticipates additional tribal
development in the MRA, it is the Committee's expectation that
the Tribe will be respectful of, and preserve, the striking
vistas of Shark Valley. The Tribe must be careful not to
interfere with the visitor's experience as a result of the
Tribe's development, especially with respect to billboards or
other commercial advertisements in this area. Billboard and
other commercial advertisements should not be visible from the
Shark Valley visitor center, the tram, and to the greatest
extent possible the observation tower.
Easements and ranger station
The MRA is located in a critical environmental area for the
Everglades National Park. The establishment of specified
natural easements ensures that the Tribe's perpetual occupancy
within the MRA does not place the entire MRA beyond the Park
Service's capacity to preserve and restore the Everglades.
Thus, the natural easements and the specified water control
structures remain available for the Park Service to accomplish
the hydrological or any other environmental objectives of the
Park. This is generally addressed in section 8(e) of the bill.
Consistent with these factors, if MRA lands (excluding the
``natural easements'') are necessary for water quality
objectives, the bill ensures that the lands within the MRA can
be made available to the Department. The bill places
constraints on the availability of this authority. (Section
8(e)(2)) This authority is only to be utilized if alternative
measures to achieve the same purposes are found to be
impractical.
The map referenced in section 4(3) of the bill depicts the
natural easements established under section 6(d)(1), the ranger
station referenced in section 6(d)(3), and the water control
structures referenced in section 6(d)(4). With respect to the
natural easements and water control structures, the tribe may
not construct, develop, or improve in these areas. The extent
of the Ranger Station is also limited as identified on the map.
Implementation process
There is evidence to support the tribe's claim that its
status as a permitee places it in an inherently subordinate
position in its dealings with the Department of Interior. This
is incompatible with the federal policy of fostering
government-to-governmentrelationships between tribes and the
federal government.
The bill seeks to resolve the potential areas of
disagreement that are known at this juncture. By eliminating
the specter that the tribe's presence occurs at the sufferance
of the Department, the Committee believes that it has
established a better framework for the government-to-government
resolution of any further disagreements that may occur.
Although the Committee hopes that disagreements may be resolved
through either reference to the explicit terms of this bill or
through informal discussions, the Committee has found that
explicit procedures for nonbinding dispute resolution may also
be part of a framework for resolving the legitimate conflicts
that arise between governments with overlapping jurisdictional
authority. By providing for such a process, the Committee does
not intend to prevent the tribe or the Department from seeking
recourse to other dispute resolution processes.
Applicability of this bill
The Committee notes that the bill is the product of a
significant amount of effort by the Department, especially the
Park Service. By approving this bill, the Committee does not
imply that all conflicts between Indian tribes and federal land
management agencies are amenable to such resolution. For that
reason, the Committee does not intend that the terms of the
bill will create any interest or privileges in any other
situations.
Federal permits
This provision ensures that the objectives of this bill are
incorporated into the responsibilities of any federal agency
considering a permit for construction or other activities on
the MRA. This is particularly true of any Sec. 404 permit from
the Army Corps of Engineers.
Parties held harmless
This provision is included to ensure that Indian tribes and
the United States do not become vicariously liable for each
others actions or inactions as a result of this act. The
exception with respect to the Indian Self-Determination and
Education Assistance Act (ISDEA) is concerned with the policy
of supplementing or displacing liability insurance with Federal
Tort Claims Act coverage when a tribe contracts to provide
services under the ISDEA. (See, e.g., P.L. 101-512, Title III,
Sec. 314.) It is not the Committee's intent with this
provision, or any other part of the bill, to place the tribe in
a different position from any other tribe with respect to the
ISDEA.
Enforcement
The bill creates rights and interests in both the tribe and
the United States with respect to the MRA. Although the bill
provides mechanisms to resolve disputes between the United
States and the tribe, it is possible that recourse to federal
court will be necessary to vindicate either tribal or federal
rights and interests established by this bill. Section 8(i)(2)
does not provide an independent waiver of the Federal
Government's existing sovereign immunity and the tribe would
need to rely on some other statute for such a waiver. At a
minimum, section 8(i) ensures that otherwise justifiable claims
will not be dismissed for failure to state a claim upon which
relief may be granted.
Litigation between the tribe and the Park could arise as a
result of a number of matters and in various postures. For
example, the United States could sue to enforce provisions of
the bill, the tribe could challenge a federal decision or
agency ruling, or a case or controversy could involve a dispute
over the interpretation of a provision. In reporting this
measure, it is the Committee's expectation that the bill will
reduce the number of areas where litigation may occur. With
respect to matters addressed by the bill, the provisions were
drafted to provide clear guidance to both the tribe and the
United States, especially the Park Service, for how the tribal
presence within the Park is to be accommodated with other
concerns. The Committee expects that the well-founded rights
defined by this bill and in other federal laws referenced
herein will be an important consideration in the Department of
Interior's administration of public resources. The Committee
notes that this is consistent with long-recognized principles
of federal Indian law. And the federal government's general
trust obligation to tribal governments.
conclusions
The Committee finds that the approach taken in the
legislation is more consistent with federal policy than the
permit approach. Within the constraints imposed by the bill and
other federal laws, the tribe shall govern its own affairs
within the MRA as if the land were a federal Indian
reservation. The constraints imposed by the bill will preserve
the Everglades ecosystem and the nature of the Park without
interfering with the tribe's ability to govern itself, thereby
accomplishing Congress' goal when it established Everglades
National Park.
committee recommendation and tabulation of vote
In an open business session on July 28, 1998, the Committee
on Indian Affairs, by voice vote, adopted an amendment in the
nature of a substitute and ordered the bill, as amended,
reported to the Senate, with the recommendation that the Senate
pass S. 1419 as reported.
section-by-section analysis
Section 1. Short title
Section 1 cites the short title of the bill as the
``Miccosukee Reserved Area Act.''
Section 2. Findings
Section 2 provides Congressional findings.
Section 3. Purposes
Section 3 describes the bill's purposes.
Section 4. Definitions
Definitions are provided for the following terms:
``Everglades,'' ``Federal Agency,'' ``MiccosukeeReserved
Area,'' ``Park,'' ``Permit,'' ``Secretary,'' ``South Florida
Ecosystem,'' ``Special Use Permit Area,'' ``Tribe,'' ``Tribal,'' and
``Tribal Chairman.''
Section 5. Tribal rights and authority on the Miccosukee Reserved Area
Section 5(a) terminates the February 1, 1973 permit issued
to the Miccosukee Indian tribe and any amendments to that
permit and expands the lands treated as the Miccosukee Reserved
Area (MRA), which will be treated as though it were a federal
Indian reservation;
(b) Establishes that the tribe shall have the right to
perpetual use of the MRA;
(c) The MRA shall be considered ``Indian country,'' as that
term is employed at 18 U.S.C. Sec. 1151;
(d) The bill does not effect exclusive federal legislative
jurisdiction in the MRA; nor shall P.L. 280 apply to the MRA;
(e) The bill does not affect other rights the tribe
possesses.
Section 6. Protection of Everglades National Park
(a)(1) Establishing that the MRA remains a part of the
Park.
(2) The tribe is responsible for complying with applicable
laws.
(3) The tribe is to prevent, abate, and not be the source
of significant degradation of surface or groundwater, not be
the source of the significant propagation of exotic plants and
animals; not prohibit public access to non-MRA parts of the
everglades; establish water quality standards as protective as
those approved standards of the State of Florida; nor is the
tribe to engage in activities within the natural easements.
(b) The tribe may only construct structures above the
height restrictions based upon explicit exceptions or a waiver
granted by the Secretary.
(c) The tribe may not engage in class II or III gaming (as
those terms are defined in the Indian Gaming Regulatory Act, 25
U.S.C. Sec. 2701 et seq.) or commercial aviation within the
MRA. The tribe is to consider the impact on visitors to the
Shark Valley visitor use area in developing the MRA.
(d) Establishes natural easements that may be used for
hydrological and other environmental objectives; and preserves
the area presently used as the ranger station.
Section 7. Implementation process
(a) Encouragement for the tribe and the Secretary to
establish a process for implementing the act;
(b) Authorizing the federal mediation and assessment
service to assist in reaching agreements between the tribe and
the Secretary;
(c) Provides that such nonbinding dispute resolution is not
to exceed 60 days unless the Secretary and the tribe agree to
an extension;
(d) Provides that participation in mediation does not
prejudice either parties ability to access other means for
resolving a dispute.
Section 8. Miscellaneous
(a) This bill does not create any right or interest in any
other circumstance concerning federal public lands;
(b) Federal officers may access the MRA to ensure
compliance with the bill and as if it were an Indian
reservation;
(c) Federal permits shall only be granted after
consultation with the Secretary, and no permit shall be issued
that would be inconsistent with the bill's provisions;
(d) Volunteer programs involving the tribe may be
established in cooperation with the tribe;
(e) Federal authority to preserve and protect the South
Florida ecosystem is preserved; and the MRA lands may be used,
under specified circumstances, to achieve these objectives;
(f) Holds the parties harmless with respect to liability;
(g) Preserves authority to enter into cooperative
agreements;
(h) Holds parties harmless with respect to water rights;
(i) Authorizes actions by either the tribe or the United
States to enforce the provisions of the bill.
COST AND BUDGETARY CONSIDERATION
The cost estimate for S. 1419, as amended, as calculated by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 20, 1998.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1419, the Miccosukee
Reserved Area Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
S. 1419--Miccosukee Reserved Area Act
S. 1419 would clarify the rights of the Miccosukee tribe of
Indians to occupy and use land within the boundaries of the
Everglades National Park. The bill would give the tribe the
exclusive right to use and develop an area of the park to be
known as the Miccosukee Reserved Area (MRA) and would terminate
the special use permit that currently governs the tribe's use
of this area. The tribe would be responsible for complying with
environmental and other laws, certain development restrictions,
commercial restrictions, such as a prohibition against gaming
on MRA lands, and other conditions established by the bill.
CBO estimates enacting S. 1419 would have no effect on the
federal budget. The bill would restate an agreement between the
federal government and the Miccosukee Indian Tribe. It also
would provide for compensation to the Miccosukee for water
restoration projects in the Florida Everglades. Because both
the projects and compensation are authorized under existing
law, the bill would have no budgetary impact. S. 1419 would not
affect direct spending or receipts; therefore, pay-as-you-go
procedures would not apply. The bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
On August 17, 1998, CBO prepared a cost estimate for H.R.
3055, the Miccosukee Reserved Area Act, as ordered reported by
the House Committee on Resources on July 22, 1998. The House
and Senate bills are similar, and the estimates are identical.
The CBO staff contact is Deborah Reis. This estimate was
approved by Paul N. Van de Water, Assistant Director for Budget
Analysis.
REULATORY IMPACT STATEMENT
Paragraph 11(b) of XXVI of the Standing Rules of the Senate
requires that each report accompanying a bill to evaluate the
regulatory paperwork impact that would be incurred in carrying
out the bill. The Committee believes that S. 1419 will have
minimal regulatory or paperwork impact.
EXECUTIVE COMMUNICATIONS
The Committee has received no official communications from
the Administration on the provisions of the bill.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXXVI of the
Standing Rules of the Senate, the Committee notes that the bill
will not make any changes in existing law.