[Senate Report 106-307]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 595
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-307

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



 
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.

                                  
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