[Senate Report 106-307]
[From the U.S. Government Publishing Office]
Calendar No. 595
106th Congress Report
SENATE
2d Session 106-307
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TO MAKE TECHNICAL CORRECTIONS TO THE STATUS OF CERTAIN LAND HELD IN
TRUST FOR THE MISSISSIPPI BAND OF CHOCTAW INDIANS, TO TAKE CERTAIN LAND
INTO TRUST FOR THAT BAND, AND FOR OTHER PURPOSES
_______
June 13, 2000.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1967]
The Committee on Indian Affairs, to which was referred the
bill (S. 1967) to make technical corrections to the status of
certain land held in trust for the Mississippi Band of Choctaw
Indians, to take certain land into trust for that Band, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
purpose
The purpose of S. 1967 is to declare that specified lands
are held in trust for the Mississippi Choctaw Tribe; and
provide that lands subsequently taken into trust are part of
the Choctaw Reservation.
background
History of the Choctaw Indian Tribe
Throughout the 19th Century, the federal government and the
State of Mississippi engaged in various, and generally
unsuccessful, efforts to remove the Choctaw Indian Tribe to
lands west of the Mississippi River. A number of treaties were
negotiated, and sometimes ratified by the United States Senate,
but the terms were rarely fulfilled by the federal government.
For example, the Treaty at Doak's Stand, 7 Stat. 210 (1820)
could not be executed because the land promised to the Choctaw
by the United States was already occupied. In an effort to
``encourage'' the tribe to move west, the Mississippi
Legislature enacted a law ``purporting to abolish the Choctaw
government and [imposing] a fine upon assuming the role of
chief.'' \1\ As the Supreme Court explained, the numerous
chapters in federal government's treatment of the Choctaw tribe
are ``best left to historians.'' The Supreme Court noted the
palpable effect of this history on Congress:
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\1\ United States v. John, 437 U.S. 634, 640 (1978).
It is enough to say here that the failure of these
attempts, characterized by incompetence, if not
corruption, proved to be an embarrassment and an
intractable problem for the Federal Government for at
least a century.\2\
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\2\ Id. at 643-4.
The Senate ratified the Treaty of Dancing Rabbit Creek in
1831 with the intent that it would be a final resolution to the
Choctaw's tribe's presence in Mississippi. But the Treaty
stopped short of requiring all Choctaws to leave the state. In
fact, those who remained were to retain their Choctaw
citizenship, although they were not to share an annuity that
was provided for those who were removed. In addition, lands
were reserved for those who remained behind. As a result of
this policy, and the general unwillingness of the Indians to
relocate, by the 1890's it was clear that a number of tribal
members still resided in Mississippi. Nevertheless, it was not
until 1916 that the federal government took affirmative steps
to address the situation. In that year Congress appropriated
$1,000 to investigate the condition of the Indians living in
Mississippi. Subsequent appropriations were made to provide for
medical care, housing, administration, schools, and land.
However, the status of the lands acquired by the government was
complicated by the fact that the lands were sold to individual
Indians, rather then being held collectively.
When Congress sought to rehabilitate tribal governments,
through the enactment of the Indian Reorganization Act of 1934
(IRA), the Mississippi Choctaw Tribe voted to organize under
the IRA. To bring the Choctaw landholdings more in line with
federal policy, which sought to consolidate Indian land
ownership in each tribal government, a 1939 Act declared all
lands previously purchased for the Choctaw tribe to be held in
trust. In 1944, the Assistant Secretary of Interior declared
that more than 15,000 acres were so held. Nevertheless the
State of Mississippi resisted attempts to treat this land as an
Indian reservation, even going so far as to argue that the IRA
was not intended to apply to the Mississippi Choctaw Tribe.
These issues were resolved by a decision of the United States
Supreme Court in its 1978 decision in United States v. John.
In United States v. John, the Supreme Court ruled
unanimously that the federal government's actions through 1939
were sufficient to bring these lands within the definition of
``Indian reservation,'' as it is used to determine the scope of
federal criminal jurisdiction. Moreover, ``if there were any
doubt about the matter in 1939, when * * * Congress declared
that title to land previously purchased for the Mississippi
Choctaws would be held in trust, the situation was completely
clarified by the proclamation in 1944 of a reservation and the
subsequent approval of the constitution and bylaws adopted by
the Mississippi Band.'' \3\
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\3\ Id. at 649.
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The Supreme Court's decision permanently resolved any
lingering questions about the status of those lands that were
already held in trust for the tribe. It did not address,
however, the effect of previous government policies on the
tribe's land base. Specifically, the land held in trust for the
tribe was not adequate to support the tribe's membership or the
infrastructure needed to support the tribe's expanding and
increasingly diversified economic base. To address its need for
land, the tribe made use of the administrative process
established by the IRA for having land taken into trust.
Choctaw application to have land taken into trust
Pursuant to 25 CFR Sec. 151, the Mississippi Choctaw Tribe
has filed applications with the Eastern Regional Office of the
Bureau of Indian Affairs to have approximately 8,500 acres of
land taken into trust. Under Part 151, CFR, the Secretary may
accept title to land in trust for Indian tribes, and in some
circumstances, members of such tribes. Evidence adduced at the
Committee's hearing on S. 1967 indicates that these
applications have not been acted upon for months or even years.
Concerned about this situation, Mississippi Senators Lott and
Cochran introduced S. 1967 to preserve tribal and federal
resources by making the administrative process unnecessary with
respect to the land addressed in S. 1967. The Mississippi
Attorney General's Office also wrote a letter in support of
this legislation, evidencing the ongoing cooperative
relationship between the Choctaw Tribe and the State of
Mississippi.
The unique history of the Choctaw tribe appears to make the
administrative process more complicated than those of other
Indian tribes. For example, unlike other Indian tribes, the
Choctaw tribe does not have defined reservation boundary that
circumscribes the eight Choctaw communities. In addition, the
delay in obtaining approval of these applications has caused
the tribe to prioritize its applications; forcing it to choose
between land needed forhousing, education, or economic
development.
The ability to treat land as ``Indian country'' has proven
to be an essential attribute of Congress' ability to carry out
its Constitutional responsibility in the field of Indian
Affairs. For example, when a tribe was removed from its
aboriginal homeland, it was necessary for the federal
government to guarantee that the tribe would continue to
exercise governmental authority over those lands reserved for
the tribe, often in a new state or territory. Similarly, when
the federal government seeks to settle land claims, the parties
will frequently negotiate to obtain a waiver of the tribe's
claim in exchange for a federal guarantee that other lands will
be acquired by or for the tribe and treated as ``Indian
country,'' \4\ In the case of the Choctaw tribe the
``corruption and incompetence'' described by the Supreme Court
in its 1978 decision provides analogous responsibility to
address the Choctaw tribe's need for additional tribal lands,
even if liability is not present.\5\
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\4\ ``The Tribes typically negotiate for a land base and a
settlement fund sufficient to promise a stable cultural and economic
future. The State negotiates for [its interests]. The settlement in the
end usually bears little relation to the positions set forth in the
initial complaints and answers in the case.'' Staff Memorandum Re: Veto
of S. 366, Sen. Rep. 98-877 (1983).
\5\ A number of courts have reached similar conclusions either
based on the specific facts before the court, or the general result of
the General Allotment Act and similar laws, See, e.g., Board of County
Commissioners v. Seber, 318 U.S. 705 (1943), Chase v. McMasters, 573
F.2d 1011 (8th Cir. 1978), Stevens v. Commissioner, 452 F.2d 741 (9th
Cir. 1971), and City of Takoma v. Andrus, 457 F. Supp. 342 (D. D.C.
1978), and Jicarilla Apache Tribe v. State of New Mexico, 742 F. Supp.
1487 (D. New Mex. 1990).
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Another purpose of S. 1967 is to unify tribal land
holdings, both physically and semantically. Physically, the
bill will assist with consolidating tribal lands to reduce or
eliminate confusion resulting from scattered holdings. As with
other Indian tribes, the Choctaw tribe's current landholdings
have more to do with the history of inconsistent federal
policies applied to the tribe than its modern needs. By
selectively adding to the lands already held in trust, the
tribe will modernize its land-base. One federal judge
characterized a similar endeavor as: ``self-respecting, and for
that matter self-denying people, trying to preserve their tribe
as a viable entity and to maintain themselves with a modicum of
dignity and self-support.''
With respect to semantics, the Choctaw tribe explains that
it will facilitate its collaboration with off-reservation
entities, especially institutions like banks and financiers, if
the same commonly used term can be employed to describe all of
the land taken into trust for the tribe. The tribe is correct
when it notes that Supreme Court has assiduously refused to
distinguish the nature of tribal or federal authority over
Indian lands based on the labels used to describe them. For
example, the government has used variety of phrases including
trust lands, formal reservation lands, informal reservation
lands, and others. Oklahoma Tax Commission v. Citizen Band of
Potawatomi Tribe of Oklahoma, 498 U.S. 505 (1991).
Nevertheless, the use of different terms is confusing to those
entities that are new to Indian country. Also, it probably adds
to the transaction costs of those doing business with the tribe
if they must independently satisfy themselves that there is no
legal distinction between land that is ``held in trust'' and
``reservation lands.'' The bill seeks to avert such confusion
by bringing all of the tribe's trust lands under the same label
as ``formal reservation lands.'' This is especially important
in the case of the Choctaw tribe. As the Committee has been
informed on a number of occasions, the exercise of tribal
sovereignty can be used to offset other disadvantages that are
frequently associated with Indian country. This approach can
only be pursued if a tribe's jurisdiction over a parcel or
project is unassailable. In this case, the Choctaw tribe's
approach to economic development involves ``turning marginal
economic opportunities into larger economic successes.'' By
confirming the reservation-status of these lands, the tribe is
free to concentrate on facilitating economic development by
reducing the costs that are under its control.\6\
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\6\ See, generally, Ferrara, The Choctaw Revolution (1998).
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One of the questions addressed by the Committee is whether
legislation taking land into trust should replace or supplant
the administrative process. There appears to be a consensus
that in general these decisions should be left to the
administrative process and legislative decisions to take land
into trust should be reserved for specific instances where a
case can be made that a unique set of circumstances make it
more appropriate for Congress to take the matter in hand. The
facts in this matter present such a case. In addition, the
record developed through the Committee's hearing on S. 1967
demonstrates that some or all of the effect of taking this land
into trust will be more than offset by the tribe's effect on
the economy in south central Mississippi. See, The Economic
Impact of the Mississippi Bank of Chocaw Indians and Their
Affiliated Enterprises on the State of Mississippi, University
of Southern Mississippi, June 15, 1990.
Finally, the Choctaw tribe has committed significant
resources to resolving any concerns that the United States will
be assuming legal liability based on existing environmental
conditions on the lands to be held in trust under this Act.
legislative history
S. 1967 was introduced on November 18, 1999 by Senator
Cochran for himself and Senator Lott, and referred to the
Committee on Indian Affairs. On March 29, 2000, the Committee
held a legislative hearing on the bill.
committee recommendation and tabulation of vote
In an open business session on May 3, 2000, the Committee
on Indian Affairs, by a voice vote, voted for the bill to be
reported as it was introduced and ordered the bill reported to
the Senate, with the recommendation that the Senate do pass S.
1967 as reported.
Section-by-Section Analysis
Section 1. Status of certain Indian lands
Subsection (a)(1) addresses the status of lands acquired in
trust for the Tribe since December 23, 1944. The Supreme
Court's 1978 decision recognized that a December 1944
proclamation by the Assistant Secretary established
reservation-status for all lands purchased by the Choctaw tribe
up to that date. Similarly, this provision will ensure
reservation status for those lands taken into trust since that
date, and into the future.
Subsection (a)(2) provides that those lands held in fee by
the Choctaw tribe as shown in the report entitled ``Report on
Fee Lands owned by the Mississippi Band of Choctaws,'' dated
September 28, 1999, on file in the Office of the
Superintendent, Choctaw Agency, BIA, is declared to be held in
trust for the Tribe. This will ensure the trust status of those
lands acquired by the tribe and listed in the report provided
to the Choctaw Agency of the BIA. Pursuant to subsection
(a)(1), these lands will also be treated as part of the Choctaw
reservation.
Subsection (a)(3) addresses any concerns that the bill is
intended to evade or gain an advantage with respect to the use
of these lands for gaming purposes. Under the Indian Gaming
Regulatory Act of 1988 (IGRA), 25 U.S.C. Sec. 2700 et seq.
there is a general prohibition on the use of ``noncontiguous''
lands for gaming purposes if they were acquired by the
Secretary in trust for a tribe after October 17, 1988. The
Choctaw tribe has informed the Committee that it wishes to
avoid even the slightest appearance that having the land taken
into trust through legislation will establish an advantage or
an exception in the use of land for gaming purposes. In other
words, the tribe wishes to ensure that with respect to the IGRA
these lands have the same status they would possess if they
were taken into trust through the administrative process. In
general, there is no argument that the status of the lands
taken into trust or declared to be part of the Choctaw
reservation will be any different if the lands were taken into
trust under this bill versus the administrative process.
However, the IGRA contains an exception the October 17, 1988
prohibition if the land acquired for a tribe constitutes a
tribe's ``initial reservation.'' While it is very unlikely that
this exception could factually be applied to the Choctaw
tribe's reservation, the tribe would rather explicitly
eliminate any legal basis for its application, thereby
obviating any need to make the case that the provision is
factually inapplicable.
Similarly, subsection (b) will resolve any question that S.
1967 is intended to procure any special advantage with respect
to the application of any other provisions of the IGRA.
Cost and Budgetary Consideration
The cost estimate for S. 1967 as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 12, 2000.
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. 1967, a bill to make
technical corrections to the status of certain land held in
trust for the Mississippi Band of Choctaw Indians, to take
certain land into trust for that band, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette
Keith.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 1967--A bill to make technical corrections to the status of certain
land held in trust for the Mississippi Band of Choctaw Indians,
to take certain land into trust for that band, and for other
purposes
S. 1967 would allow certain land owned by the Mississippi
Band of Choctaw Indians to be held by the federal government in
trust for the benefit of the band. CBO estimates that enacting
this bill would have no significant impact on the federal
budget. S. 1967 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would have no significant impact on the budgets of state, local
or tribal governments.
The CBO staff contact is Lanette Keith. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
REGULATORY 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. 1967 will have a
minimal regulatory or paperwork impact.
EXECUTIVE COMMUNICATIONS
The Committee has received no Executive Communications
concerning S. 1967.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXXVI of the
Standing Rules of the Senate, the Committee notes the following
changes in existing law: S. 1967 will not effect any changes in
existing law.