[House Report 106-207]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-207

======================================================================



 
 A BILL TO RATIFY CERTAIN TRANSFERS OF LAND FROM, BY, OR ON BEHALF OF 
                     THE DELAWARE NATION OF INDIANS

                                _______
                                

 June 29, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 562]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 562) to approve and ratify certain transfers of land and 
natural resources by or on behalf of the Delaware Nation of 
Indians, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. RATIFICATION OF TRANSFERS; EXTINGUISHMENT OF TITLE AND 
                    CLAIMS.

  (a) Approval and Ratification of Prior Transfers.--Any transfer of 
land or natural resources located within what is now the boundaries of 
the State of New Jersey or any transfer of hunting or fishing rights 
related thereto, from, by, or on behalf of the Delaware Nation of 
Indians, which occurred prior to 1833, including any transfer pursuant 
to any treaty, compact, deed, Act, or statute of the State of New 
Jersey, shall be deemed to have been made in accordance with the 
Constitution and all laws of the United States that are specifically 
applicable to transfers of land or natural resources from, by, or on 
behalf of any tribe, nation, pueblo, or band of Indians, or any member 
thereof (including without limitation, the Trade and Intercourse Act of 
1790 (ch. 33, sec. 4; 1 Stat. 137, 138)), and Congress does approve and 
ratify any such transfer effective as of the date of the transfer.
  (b) Aboriginal Title Extinguished.--To the extent that any transfer 
described in subsection (a) involves land, natural resources, or 
hunting or fishing rights to which the Delaware Nation of Indians had 
aboriginal title, subsection (a) shall be regarded as an extinguishment 
of such aboriginal title.
  (c) Claims Extinguished.--All claims against the United States, the 
State of New Jersey or subdivision thereof, or any other person or 
entity, by the Delaware Nation of Indians arising before December 31, 
1832, and based on any interest in or right to land or natural 
resources within the boundaries of the State of New Jersey, (including 
without limitation, claims for trespass damages, claims for use and 
occupancy, or claims involving hunting or fishing rights) shall be 
deemed to have been extinguished as of December 31, 1832.
  (d) Definition.--For the purposes of this section, the term 
``Delaware Nation of Indians'' means the Delaware Nation of Indians, 
the Delaware Tribe of Indians, the Delaware Tribe of Western Oklahoma, 
any member of those tribes, and any descendant, predecessor, or 
successor in interest of those tribes and any member thereof.

                          PURPOSE OF THE BILL

    The purpose of H.R. 562 is to approve and ratify certain 
transfers of land and natural resources by or on behalf of the 
Delaware Nation of Indians.

                  BACKGROUND AND NEED FOR LEGISLATION

    In 1756, a reservation ( the ``Brotherton Tract'') was 
created for the Lenape Indians in Burlington County, New 
Jersey. By 1800, most of the Lenapes had left the reservation. 
In 1801, at the request of the Lenapes, the State of New Jersey 
appointed commissioners to sell the reservation, and to place 
the proceeds in trust for the Tribe to finance their 
relocation.
    In 1832, a Lenape representative appeared before the New 
Jersey State Legislature and claimed that the 1802 sale did not 
terminate the Tribe's hunting and fishing rights. The 
Legislature authorized payment to the Lenapes in exchange for 
the extinguishment of all the Lenape's rights to the property 
in New Jersey.
    The 1802 sale of the Brotherton Tract and the subsequent 
1832 financial agreement between the State of New Jersey and 
the Lenape Indians were never ratified by the United States 
Congress pursuant to an act to regulate trade and intercourse 
with the Indian tribes (Act of July 22, 1790, ch. 33, 1 Stat. 
137, codified as amended at 25 U.S.C. 177), in which the United 
States Government assumed all responsibility over Indian land 
transactions. Enactment of H.R. 562 would recognize and ratify 
the 1802 sale of the Brotherton Tract, an action in which the 
federal government would meet its trust obligation under the 
1790 Act.

                            COMMITTEE ACTION

    H.R. 562 was introduced on February 3, 1999, by Congressman 
Jim Saxton (R-NJ), and was referred to the Committee on 
Resources. On April 28, 1999, the Full Resources Committee met 
to consider H.R. 562. At that time, Mr. Saxton offered an 
amendment in the nature of a substitute making technical 
corrections to the bill, and adding a definition for ``Delaware 
Nation of Tribes.'' The amendment was adopted by voice vote. 
The bill, as amended, was then ordered favorably reported to 
the House of Representatives by a roll call vote of 21-16, as 
follows:


            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation.--Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act.--As required by clause 3(c)(2) 
of Rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. Government Reform Oversight Findings.--Under clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate.--Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:
                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 22, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 562, a bill to 
provide and ratify certain transfers of land and natural 
resources by or on behalf of the Delaware Nation of Indians, 
and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Megan 
Carroll (for federal costs) and Marjorie Miller (for the impact 
on state, local, and tribal governments).
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate

H.R. 562--A bill to approve and ratify certain transfers of land and 
        natural resources by or on behalf of the Delaware Nation of 
        Indians, and for other purposes

    H.R. 562 would approve and ratify any transfer of land or 
natural resources by or on behalf of the Delaware Nation of 
Indians that occurred prior to 1833 within the present 
boundaries of the state of New Jersey. The bill also would 
extinguish any title to the transferred lands and resources all 
claims against the United States and the state of New Jersey 
made by the Delaware Nation of Indians that are based on an 
interest in land or resources transferred prior to 1833.
    CBO estimates that enacting H.R. 562 would have no 
significant impact on the federal budget. H.R. 562 contains an 
intergovernmental mandate as defined in the Unfunded Mandates 
Reform Act (UMRA). CBO estimates that this mandate would not 
impose costs above the threshold established by the act ($50 
million in 1996, adjusted annually for inflation) in any of the 
five years following its enactment. The bill contains no new 
private-sector mandates as defined in UMRA.
    In the early 1800s, the Lenape Indians--a band recognized 
as part of the Delaware Nation of Tribes--left their 
reservation in New Jersey. At the tribe's request, the state of 
New Jersey sold their land and placed the proceeds in trust for 
the tribe. In 1832, the state made an additional payment to the 
tribe to settle the tribe's claim to hunting and fishing rights 
on that land. These transactions were never ratified by the 
Congress, as required by the Trade and Intercourse Act of 1970, 
and so the land could be subject to claims on behalf of tribes 
claiming to be descendants of the Lenape. This bill would 
extinguish all such claims as of December 31, 1832, thus 
cutting off the primary legal avenue currently available to 
these tribes to pursue land claims in New Jersey. CBO has 
determined that this action would constitute a mandate as 
defined in UMRA because it would prohibit the tribes from 
exercising a legal right that they currently possess.
    The cost of this mandate would depend on the outcome of any 
future land claims that might be brought under current law and 
would equal whatever compensation a tribe might realize from 
such a claim. No such claims have been brought, but the 
Department of the Interior is investingating whether members of 
the Delaware Tribe of Western Oklahoma are descended from the 
Lenape and could pursue a claim for that land on behalf of the 
tribe. That claim would be forestalled by this legislation.
    CBO has no basis for predicting the outcome of this 
potential claim or any others that might be affected by this 
bill. We find it highly unlikely, however, that tribes would 
realize a monetary gain of more than $50 million in any year 
within the five-year time frame established by UMRA, in part 
because any such claims are not likely to be settled within 
that period. Further, the initial monetary benefits, if any, 
probably would be less than $50 million. Based on information 
provided by New Jersey state officials, CBO estimates that the 
value of the land that might be claimed by the Delaware Tribe 
of Western Oklahoma probably would initially be less than that 
amount. Consequently, CBO estimates that the mandate would not 
impose costs to tribes above the UMRA threshold in any of the 
next five years.
    Enactment of this bill could impose substantially greater 
costs on Indian tribes beyond the five-year period. Considering 
only the possible claim of the Delaware Tribe of Western 
Oklahoma, the value of a settlement could be much greater 
several years from now, should the tribe prevail and establish 
profitable businesses on the land. Any other claims that might 
be brought by this or other tribes under current law also would 
be precluded. CBO cannot predict whether such claims would be 
brought or would be successful.
    In contrast, the state of New Jersey and local governments 
in the state would benefit from enactment of this legislation 
to the extent that it would preclude any land claims that might 
otherwise impose costs on those entities.
    The CBO staff contacts are Megan Carroll (for federal 
costs) and Majorie Miller (for the impact on state, local, and 
tribal governments). This estimate was approved by Robert A. 
Sunshine, Deputy Assistant Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act, but the costs imposed are 
below the threshold established by that Act.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State or local 
law. If the Delaware Nation of Tribes is found to have a claim 
against the United States regarding the Brotherton Tract, this 
bill would extinguish those claims in accordance with the Trade 
and Intercourse Act (25 U.S.C. 177).

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    We strongly oppose passage of this legislation which 
terminates the legal claims of the Delaware Tribe of Western 
Oklahoma without a public hearing. Over the years, this 
Committee has made strides in addressing past injustices to 
Indian tribes, but this bill represents a serious step 
backward, not only to the Delaware Tribe, but to all those who 
care about protecting the interests of American Indians and 
believe in due process

                               background

    At the time of European contact, the Lenni Lenape, now 
commonly known as the Delaware tribe, originally inhabited 
lands along the river now bearing their name in the present 
state of New York, Pennsylvania, New Jersey and Delaware. 
Initial contact with Europeans is believed to have taken place 
about 1620; by 1682, due in most part to pressure from non-
Indian settlement, the main body of the tribe was located in 
eastern Pennsylvania, where they signed the famous treaty with 
William Penn. Some tribal members remained in New Jersey, 
however, where in 1758 the colonial government created the 
Brotherton Reservation, containing approximately 3,000 acres of 
land in the present Evesbam Township, Burlington County, New 
Jersey.
    As with nearly every American Indian tribe in the East, the 
Delawares soon faced tremendous pressure to relocate away from 
the tide of non-Indian settlement or suffer the consequences. 
Individual tribal members forced to migrate during this period 
typically did not travel as part of a cohesive unit. Typically, 
some tribal members left early on, while others resisted 
removal as long as possible. The net result was that migrations 
usually became protracted, constantly shifting struggles 
against non-Indian encroachment. Many tribal members simply 
perished or dropped out of the group along the way. Among the 
Delaware, this meant the tribe was soon scattered along a 
migratory trail from New Jersey all the way to the Mississippi 
River. During the American Revolution, the main body of the 
Tribe was living in Ohio and Indiana. Some Delawares, not happy 
with the results of the War, traveled as far West as the 
Spanish territory of Missouri soon thereafter. Those Delaware 
tribal members still living on the lands set aside for them as 
the Brotherton Reservation in New Jersey faced tremendous 
pressure to sell their lands during this period.
    In 1778, the Delawares were the first Indian tribe to 
negotiate a peace treaty with the new United States (7 Stat. 
13). In 1788, the Constitution of the United States, including 
the ``Indian Commerce Clause,'' became the law of the land. In 
1790, Congress passed the Trade and Intercourse Act (as amended 
25 U.S.C. 177), placing the authority over Indian land sales 
exclusively within federal jurisdiction. In 1801, the New 
Jersey legislature enacted legislation (N.J. Session Laws 1801 
Chap LXIII) authorizing the allotment and public sale of the 
Brotherhood Reservation. The State also compensated a small 
number of tribal members for lost hunting and fishing rights on 
these small lands in 1832. These acts, the subject of the 
present controversy, may have violated the Trade and 
Intercourse Act.
    The Delaware Tribe of Western Okalahoma and the Wichita 
Delaware Tribe of Indians are both Federally recognized tribes, 
and both are successors in interest to the Delaware/Lenape from 
the Brotherton Reservation in New Jersey. Both groups have 
received compensation from the Federal government in the past 
for lands in Indiana and Ohio, based on their shared status as 
successors to the ``Delaware Tribe.'' At present only the 
Delaware Tribe of Western Oklahoma is pursuing any claims in 
New Jersey.

                          status of land claim

    The Delaware Tribe of Western Oklahoma began investigating 
their claim to the Brotherton Reservation lands in 1996, by 
correspondence with the Governor of New Jersey and the 
Department of Interior, including the Assistant Secretary for 
Indian Affairs. The Tribe was notified by letter on July 15, 
1996 from the Office of the Solicitor, Department of Interior, 
that the Department would assist them in pursuit of their 
claim. Following this 1996 letter the tribe submitted 
additional information to the Department, which prompted the 
Solicitor to assure, in a March 29, 1999 correspondence, that 
he anticipated a review of the Tribe's claim would be completed 
by late summer of this year (1999). Passage of H.R. 562 would 
prematurely halt the review process.
    The Chairman of the House Resources Committee received a 
letter from the Solicitor of the Department of Interior on 
April 28, 1999, the day the bill was marked up and voted on, 
strongly opposing passage of H.R. 562. (Attached). The 
Solicitor's correspondence noted that if concern over Indian 
gaming was a motivating factor behind the bill, such concern 
was ``misplaced'' for two reasons. First, any agreement reached 
over the land involving the Department of Interior would 
constitute ``settlement of a land claim,'' which would require 
Congressional ratification. This would give Congress a clear 
opportunity at a later date to consider potential gaming 
issues. Second, if the Tribe negotiated some sort of settlement 
with the State of New Jersey, it would required gubernatorial 
concurrence.
    H.R. 562 was rammed through the Resources Committee and 
marked up on a straight party line vote. All Democratic Members 
present voted against the measure. We are not taking a position 
on the merits of the Delaware Tribe of Western Oklahoma's legal 
claims without even benefit of a public hearing.

                                   George Miller.
                                   Eni Faleomavaega.
                                   Patrick J. Kennedy.
                                   Dale E. Kildee.
                                   Neil Abercrombie.
                                   Donna MC Christensen.
                                   Ron Kind.
                                   Mark Udall.
                                   Jay Inslee.
                                ------                                

                        Department of the Interior,
                                   Office of the Solicitor,
                                    Washington, DC, April 28, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: We understand that H.R. 562, a bill ``to 
approve and ratify certain transfers of land and natural 
resources by or on behalf of the Delaware Nation of Indians, 
and for other purposes'' will be the subject of a full 
committee markup today. The Department strongly opposes passage 
of H.R. 562.
    Our understanding is that a primary motivation for the 
proposed legislation is concern about the possibility that the 
Delaware Tribe of Western Oklahoma may be interested in 
establishing a gaming operation in the State of New Jersey, 
without first complying with the gubernatorial concurrence 
requirement for off-reservation gaming found in Section 20 of 
the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. Sec. 2719. 
The idea is that the Tribe would seek to settle its claim to 
land in New Jersey (a claim based on an alleged violation of 
the Non-Intercource Act, 25 U.S.C. Sec. 177) and seek to game 
on the land without gubernatorial concurrence, arguing that it 
is a ``settlement of a land claim'' exempt from the section.
    Such a concern is misplaced. In our view, to be eligible 
for the ``settlement of a land claim'' exemption from Section 
20 and its gubernatorial concurrence requirement, the land at 
issue must have been obtained pursuant to a settlement that has 
been ratified by Congress. See the attached memorandum of 
November 18, 1998, from the Associate Solicitor for Indian 
Affairs.
    This means that the Department would not accept into trust, 
as lands obtained in ``settlement of a land claim'' under 
section 20 of IGRA, any off-reservation lands obtained by the 
Delaware Tribe of Western Oklahoma in the State of New Jersey, 
unless Congress had ratified the settlement. The requirement of 
congressional ratification would obviously give Congress a 
clear opportunity to address potential gaming issues on such 
lands.
    Our application of IGRA Section 20 is consistent with the 
Department's general policy on the settlement of Indian land 
claims. Whenever a tribe has raised a land claim based on the 
Non-Intercourse Act, we have made clear to all interests 
involved in settlement negotiations that Congress must ratify 
any settlement agreement. I am not aware of any land claim 
settlements based on the Non-Intercourse Act that purport to be 
valid absent such Congressional approval.
    Not only is this bill unnecessary, but we strongly object 
to its approach of outright extinguishment of a legal claim 
without giving the adversely affected party the benefit of any 
hearing on the merits. The federal courts are the usual and 
proper forum for examining the merits of such claims, including 
the factual history and applicable legal standards on which 
such claims are based.
    Finally, although we have not had an opportunity to consult 
with the Department of Justice regarding this matter, the 
Department of Interior is concerned that enactment of H.R. 562 
might give rise to a claim for compensation by the Delaware 
Tribe of Oklahoma against the United States.
    Neither the Department of the Interior nor the Department 
of Justice have had adequate opportunity to review the factual 
or legal underpinnings of the Delaware Nation's claim. 
Therefore we cannot comment on its merits or lack thereof. But 
to extinguish such a claim outright in these circumstances, 
without any investigation or consideration, raises serious 
questions of fairness and due process. This is especially the 
case when, as explained above, the apparent motivating concern 
about Indian gaming cannot be squared with IGRA's requirement 
that gubernatorial concurrence be obtained, or that any 
settlement that might be exempt from section 20's requirement 
be ratified by Congress.
    For these reasons, the Department strongly opposes the 
enactment of H.R. 562.
            Sincerely,
                                             John D. Leshy,
                                                         Solicitor.

                                  
