[Senate Report 106-327]
[From the U.S. Government Publishing Office]
Calendar No. 661
106th Congress Report
SENATE
2d Session 106-327
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PROVIDING TO THE TIMBISHA SHOSHONE TRIBE A PERMANENT LAND BASE WITHIN
ITS ABORIGINAL HOMELAND, AND FOR OTHER PURPOSES
_______
June 30, 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. 2102]
The Committee on Indian Affairs, to which was referred the
bill (S. 2102) to provide to the Timbisha Shoshone Tribe a
permanent land base within its aboriginal homeland, 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. 2102, the Timbisha Shoshone Homeland Act,
is to provide in trust for the Timbisha Shoshone Tribe land on
which the Tribe can live permanently and govern its affairs in
a modern community within the ancestral homeland of the Tribe
outside and within Death Valley National Park, consistent with
the recommendations of the report prepared by the Secretary of
the Interior as required by section 705(b) of the California
Desert Protection Act of 1994 (Public Law 102-433; 108 Stat.
4498).
background and need
Ancestral homeland and lifestyle.--The traditional
ancestral homeland of the Timbisha Shoshone Tribe encompasses a
vast territory of up to 1 million acres in the region of Death
Valley, California, and extends into Western Nevada. Located
almost entirely within the Mojave Desert, the land consists of
hills and mountains, plains and alluvial fans, plateaus,
badlands, pediments, river washes, playas and sand dunes, as
well as springs, hot springs, creeks and waterfalls. Elevation
ranges from 11,000 feet to below sea level while temperatures
range from below zero on the mountain peaks to more than 120
degrees on the valley floors.
For millennia, the Timbisha Shoshone people have been
inextricably tied to the austere desert landscape which has
been their home and the source of their sustenance. The
Timbisha have a profound attachment to the land and a strong
sense of responsibility for it. Their knowledge of the area and
the life within it is unequaled, and they have devised
ingenious methods for managing natural resources, such as using
fire to control vegetation in marshes and to encourage seeds
and other plants known to be fire followers. Rich harvests and
lush plant growth resulted from the time and effort the people
traditionally spent clearing and pruning plants like pinon,
mesquite, and willow and transplanting and cultivating native
domesticated plants such as devil's claw, corn, beans, and
squash. Tribal knowledge also included the location of water
sources which they regularly cleaned and kept clear of debris
to ensure a continued supply of clean, potable water for
humans, animals, and migratory birds. Although mining
interests, homesteaders, and ranchers began moving into Death
Valley in the 1850s, the Timbisha maintained their traditional
lifestyle, in which families would move into the mountains
during the hot summer months and return to the mild valley
floor in winter, until well into the twentieth century.
Dislocation.--The process of Timbisha dislocation began in
the 1850's and accelerated through the 1870's and 1880's when
homesteaders and ranchers moved into the area to supply mining
camps and other settlements that served the miners. Dislocation
increased even more dramatically in the twentieth century.
Between the mid-1920s and 1936, the Tribe was forced to move
four times within the area that is now Furnace Creek in Death
Valley National Park.
In the 1920's, the Pacific Coast Borax Company built a
large ranch house and established a ranch north of the present
post office at Furnace Creek. During this time, the Company
experimented with the cultivation of grapes, citrus and dates.
Many Timbisha members lived near the ranch house, worked at the
ranch and on the 20-mule team borax wagons, and cultivated
gardens of their own. In the late 1920s, the Tribe, whose
families were living in traditional brush homes and using water
from the Furnace Creek ditch, was directed to leave the ranch
and move to what is now the Sunset Campground area.
In the early 1930s, the Company directed the Tribe to leave
the Sunset Campground area and to move to where the Park
Visitor Center is located today. Although no water was then
available at the site, the Tribe complied with the Company's
directive with the understanding that piped water would be
provided. Tribal members constructed homes and planted gardens;
however, after only a few years they were forced to move once
more.
In 1933, President Herbert Hoover established the Death
Valley National Monument by Executive Order, but the Order had
no provisions addressing Timbisha Shoshone land tenure or a
tribal land base. To address the Tribe's situation, the
National Park Service and the Bureau of Indian Affairs entered
into an agreement in 1936 to establish a tribal village site,
to construct adobe residences, and provide for a tribal gift
shop and laundry business. The Timbisha moved to their present
location, south of Furnace Creek Ranch, as the adobe houses
were being built, with some of their families being forced to
live in tents, and the tribal settlement near the Visitors
Center was razed.
In the ensuing years the Tribe maintained an existence in
the Monument, despite what tribal members came to perceive as a
Park Service policy designed to drive them out. In the 1940's
the Tribe was forced to discontinue hunting and caring for the
land within the Monument. In addition, according to tribal
testimony, their adobe homes at times were washed down by high-
powered water hoses, or set on fire when the people left the
Valley for the highlands during the hot summers. These actions
effectively stopped them from moving to the mountains, and to
remain instead on the Valley floor in the intense heat without
electricity, which was not provided until the early 1970's.
In 1983, the Tribe was granted Federal recognition, and its
present tribal government structure was established. Unlike
nearly all other Federally-recognized Indian tribes, however,
and despite having lived in Death Valley since time immemorial,
the Timbisha Shoshone Tribe continues to be without secure land
tenure or a permanent land base. The Tribe's landless status
has been and continues to constitute a major barrier to the
social, economic and political advancement of the Tribe and its
members.
Effects of landless status.--Currently, about fifty tribal
members live in seven adobe residences and eleven mobile
residences at Furnace Creek. The lack of a land base has
prevented the Tribe from having access to Federal housing or
other community development programs. The lack of adequate
housing in turn has caused many Timbisha tribal members to move
to other Indian communities in California and Nevada. This
geographic dispersion not only adversely affects relationships
between and among tribal members but also impedes their
communication with and full participation in tribal government.
Without a land base the Timbisha Shoshone Tribe's access to
Federal aid programs in general is limited, as is aid for basic
tribal services that is otherwise available through the Bureau
of Indian Affairs. Unless the Tribe secures a land base of
sufficient size to ensure sustainable development, its long-
term economic prognosis is dramatically diminished. The need
for such assistance is acute. Of 285 enrolled tribal members,
nearly 40 percent are unemployed, a rate more than four times
higher than the State of California.\1\ Although more than 50
percent of the Tribe's population is in the active labor force,
almost 25 percent work only part time. More than 80 percent of
the Tribe's households fall below the 1993 poverty threshold in
the United States, which is $13,950 for a family of four.\2\
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\1\ Timbisha Shoshone Tribe ``Tribal Needs Assessment and Socio-
Economic Profile'', Vallo and Associates, Sacramento, California for
California Indian Manpower Consortium, Inc., Sacramento California.
March 1994
\2\ Ibid.
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Without a land base the Tribe continues to be without the
ability or opportunity to establish and provide health services
in the community. The need for these services is also acute.
Approximately 57 percent of tribal members have no health
insurance, or rely solely on the health services provided
through the Indian Health Service clinic and/or Medicare, and/
or MediCal. Nearly 40 percent of tribal members do not receive
dental care.\3\
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\3\ Ibid.
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The landless status of the Tribe also continues to be a
source of frustration between the Tribe and National Park
Service. Authorities available to the Park Service under
existing law, such as to grant special use permits or to enter
into memoranda of understanding, cannot provide the permanence,
security, and economic opportunity that a trust land base
affords a Tribe. Similarly, the Tribe's landless status
precludes the Park Service and the Tribe from establishing
clear allocations of administrative responsibilities for
Furnace Creek tribal village area or providing a more
appropriate framework for the division of responsibilities
among the Tribe, the Park, and the Bureau of Indian Affairs.
Study, report and recommendations.--In 1994, in response to
the Tribe's request for assistance in dealing with its needs
and circumstances, the Congress included a requirement in
section 705(b) of the California Desert Protection Act, P.L.
103-433, that the Secretary of the Interior conduct a study to
identify lands within and outside the Death Valley National
Park thatwould be suitable for a reservation for the Tribe.
In December, 1999, after extensive study and deliberation
with the Timbisha Shoshone Tribe and consultation with the
public, the Secretary submitted a draft report to the Congress
containing his findings and recommendations for a tribal land
base. All of the parcels recommended for trust status are
within the Tribe's ancestral homeland area and were identified
as having particular historical, cultural, or economic
importance to the Tribe. They include former sites of homes and
gardens of tribal members, burial grounds, sacred sites, camp
sites and areas where tribal members gathered and used
important food resources such as mesquite, pinon nuts, and
spring greens, and cared for the springs and other water
sources, and the land itself. These lands reflect the
historical Timbisba Shoshone settlement pattern of dispersed
residences and seasonal use of particular areas within their
ancestral homeland area.
In analyzing the suitability for trust status, the
Secretary assessed particular land parcels with respect to the
Tribe's present and future social and economic needs, tribal
historical ties to the lands in relation to current land uses,
conservation and preservation needs of the area, and potential
resource constraints. Locations were selected in order to
establish a foundation for a viable, self-sufficient tribal
community both within and outside of the Death Valley National
Park given existing critical resources such as water.
On February 24, 2000, Senator Inouye, together with Senator
Dianne Feinstein and Senator Barbara Boxer, introduced S. 2102,
the Timbisha Shoshone Homeland Act. This legislation would
implement the Secretary's recommendations for the establishment
of a permanent land base for the Timbisha Shoshone Tribe and
for cooperative management agreements between the Tribe and the
National Park Service (NPS) and the Bureau of Land Management
(BLM).
summary of major provision
S. 2101, as amended and reported by the Committee on Indian
Affairs, provides authority for the transfer of five parcels of
Federal land, totaling appoximately 7,753.99 acres in
California and Nevada, into trust for the Tribe, and for the
Secretary to acquire, from willing sellers, two other parcels
of land in California and Nevada totaling 2,460 acres, which
also would be taken in trust for the tribe. A 300-acre parcel
of Federal land at Furnace Creek is the only parcel located
within Death Valley National Park; the other parcels of Federal
land are outside the Park and currently administered by the
BLM. Tribal development on the Furnace Creek lands would be
limited to a maximum of 50 single-family residences; a tribal
multi-purpose community center a small-to-moderate desert inn;
and a tribal museum and gift shop, together with necessary
associated infrastructure, all of which would be subject to
environmental standards and practices no less restrictive than
applied elsewhere within the National Park System. In addition,
the Federal lands taken into trust status for the Tribe would
be subject to valid rights and mining claims existing on the
date of enactment of the Act.
S. 2102 designates three nonexclusive ``special use areas''
within the Park wherein the Tribe could engage in low impact,
ecologically sustainable, traditional practices pursuant to a
management plan agreed to by the Tribe, the NPS and the BLM.
Within these areas, the Tribe could coninue to use park
resources for traditional purposes, including the management of
mesquite and other plants and the conduct of religious
ceremonies and other traditional practices and activities that
are not in derogation of Park purposes and values. Such uses of
Park resources by the Tribe do not include the taking of
wildlife.
S. 2102 requires the NPS, the BLM and the Tribe to enter
into government-to-government agreements regarding planned
development in the Park, and to enter into cooperative
agreements to provide training for Park personnel and tribal
members on the interpretation, management, protection, and
preservation of the natural and cultural resources of the
special uses areas. Insofar as practicable, the Secretary would
be required to give first preference in employment for any
construction, maintenance, interpretation, or other service in
the Park to qualified members of the Tribe.
S. 2102 bars any gaming activity on any land that would be
taken in trust for the Tribe within the Park. On the parcels of
land outside the Park, the primary uses of which would be for
residential, agricultural and economic development, the Tribe
could conduct class II (bingo) gaming if it had a gaming
ordinance approved by the National Indian Gaming Commission
(NGC). Class III, or casino gaming, could occur on these
parcels outside the Park only if (1) class III gaming is
permitted by the State, (2) the Tribe has a gaming ordinance
approved by the NIGS, and (3) the Tribe and the governor of the
State within which the parcel is located successfully negotiate
a gaming compact.
S. 2102 provides that the Tribe could assume and administer
civil and criminal jurisdiction over Timbisha Shoshone
Reservation lands pursuant to the laws and regulations
applicable to other Indian trust lands. However, those trust
lands located in California would remain under state criminal
and civil jurisdiction, as provided under Public Law 83-280,
until such time that the Secretary, after consultation with the
Attorney General, certifies that the law enforcement system in
place for such lands will be adequate to provide for the public
safety and the public interest. Such certification could not
take effect until three years after the date of enactment of
the Timbisha Shoshone Homeland Act.
Finally, the bill authorizes the appropriation of such sums
as may be necessary to carry out its provisions.
legislative history
On February 24, 2000 Senator Inouye, for himself, Senator
Feinstein and Senator Boxer introduced S. 2102 and the bill was
referred to the Committee on Indian Affairs. On March 21, 2000,
the Committee on Indian Affairs held a hearing on S. 2102.
Witnesses from the Administration and the Tribe testified in
strong support of the bill, but agreed that further
negotiations were needed to clarify provisions dealing with
water rights and several other matters. In a letter to the
Committee dated May 1, 2000, and printed elsewhere in this
report, the Departments of Interior and Justice proposed
changes and additions to S. 2102 with which the Tribe
concurred. These changes and additions were included in an
amendment-in-the-nature-of-a-substitute that was adopted by the
committee on May 10, 2000.
committee recommendation and tabulation of vote
The Committee on Indian Affairs, in an open business
session on May 10, 2000, adopted an amendment-in-the-nature-of-
a-substitute to S. 2102 by voice vote and ordered the bill, as
amended, reported favorably to the Senate.
section-by-section analysis
Section 1. Short title
Section 1 cites the short title of S. 2102 as the
``Timbisha Shoshone Homeland Act''.
Section 2. Findings
Section 2 sets forth Congressional Findings:
(1) The ancestral homeland of the Timbisha Shoshone Tribe,
which has lived in portions of California and Nevada since time
immemorial, includes the area that now comprises Death Valley
National Park and other areas of California and Nevada
administered by the Bureau of Land Management.
(2) Since 1936, the Tribe has lived on and governed its
affairs on approximately 40 acres of land near Furnace Creek in
the Park.
(3) The Tribe achieved Federal recognition in 1983 but does
not have a land base within its ancestral homeland.
(4) The Tribe's growing membership desires and needs
housing, government and administrative facilities, cultural
facilities, and sustainable economic development to provide
decent, safe and healthy conditions for themselves and their
families.
(5) The interests of the Tribe and the National Park
Service would be enhanced by recognizing their coexistence on
the same land and by establishing partnerships for compatible
land uses and for the interpretation of the Tribe's history and
culture for visitors to the Park.
(6) The interests of the Tribe and the United States would
be enhanced by the establishment of a land base for the Tribe
and by further delineation of the rights and obligations of
each with respect to the Furnace Creek area and to the Park as
a whole.
Section 3. Purposes
Section 3 states the 7 purposes of the Act, which are
consistent with the report required by Section 705(b) of the
California Desert Protection Act of 1994, as--
(1) to provide in trust to the Tribe land on which it can
live permanently and govern its affairs in a modern community
within its ancestral homeland outside and within the Park;
(2) to formally recognize the contributions by the Tribe to
the history, culture, and ecology of the Park and surrounding
area;
(3) to ensure that the resources within the Park are
protected and enhanced by cooperative activities within the
Tribe's ancestral homeland and by partnerships between the
Tribe and the National Park Service (NPS) and with the Bureau
of Land Management (BLM);
(4) to ensure that such activities are not in derogation of
the purposes and values for which the Park was established;
(5) to provide opportunities for a richer visitor
experience at the Park through direct interactions between
visitors and the Tribe including guided tours, interpretation,
and the establishment of a tribal museum and cultural center;
(6) to provide appropriate opportunities within the Park
for economically viable and ecologically sustainable visitor-
related development by the Tribe that is not in derogation of
the purposes and values for which the Park was established; and
(7) to transfer 4 separate parcels of land administered by
the BLM in trust for the Tribe and to authorize the purchase of
2 parcels of privately-owned land to be taken in trust for the
Tribe.
Section 4. Definitions
Section 4 sets forth definitions of the terms ``Park'';
``Secretary''; ``Tribal''; ``Tribe''; and ``Trust Lands''.
Section 5. Tribal rights and authority on the Timbisha Shoshone
homeland
Subsection (a) declares all right, title and interest of
the United States in and to the lands, including improvements
and appurtenances, listed in subsection (b) to he held in trust
by the United States for the benefit of the Tribe, subject to
valid rights and mining claims existing on the date of
enactment of this Act. It further requires that maps indicating
such lands be on file and available for public inspection in
the appropriate offices of the NPS and the BLM.
Subsection (b)(1) describes the land and water to be held
in trust for the Tribe pursuant to subsection (a), as follows:
A. 313.99 acres at Furnace Creek in Death Valley National
Park, together with 92 acre-feet per annum of surface and
ground water for the purposes of community
development,residential development, historic restoration, and visitor-
related economic development. Twenty-five acres at the north end of
this area would be designated as a non-development zone. Because it
contains several historic adobe homes, this area would also be
designated as an Adobe Restoration zone that will be managed by the
Tribe as a tribal historic district.
Furnace Creek is located on the valley floor of central
Death Valley and encompasses the tribal village, a privately-
owned inholding containing the Furnace Creek Ranch and Furnace
Creek Inn, the Park Visitor Center, Texas Springs Campground,
and a small airport. The area is bordered on the west by a
large alluvial fan of about 3,000 acres of mesquite groves of
great importance to the Tribe and the Park.
The Furnace Creek area is the cultural, political, and
geographic heart of Timbisha Shoshone ancestral lands. The
Timbisha Shoshone people have never left it. The area contains
sacred sites and tribal burial grounds. The settlement at
Furnace Creek is where the current tribal government was
formed, and is the place where the Tribe wants to build homes
for its people, tribal offices to carry on tribal governance
and business, and to develop visitor-related services to
provide income and employment opportunities for its people.
B. 1,000 acres at Death Valley Junction, California,
together with 15.1 acre feet per annum of ground water for the
purposes associated with such transfer.
Death Valley Junction is located in Inyo County at about
2,000 feet elevation in open saltbush scrub habitat. The parcel
lies on the eastern edge of an alluvial fan sloping gently to
the east. It is located at the junction of highways 127 and
190, the latter being a main entrance road into the Park.
According to the Secretary's report, the purposes for which the
parcel could be used include establishment of several
residences and small businesses. Although the ground water is
of poor quality and would require treatment, it would be
sufficient for these purposes.
Tribal members traveled through what is now Death Valley
Junction on their way to camps, residences, and gardens near
the springs at Ash Meadows National Wildlife Refuge.
C. 640 acres at Centennial, California, together with an
amount of ground water not exceed 10 acre feet per annum, for
the purposes associated with such transfer.
This land is located in Inyo County, west of the Park at
4,000 to 5,000 feet in elevation. It is part of the Centennial
bowl which is ringed on three sides by desert mountains, and
contains creosote bush and Joshua tree woodland. Highway 190
runs to the north and China Lake Naval Air Weapons Station lies
to the south. The land would be used for a limited number of
residences and small-scale economic development, subject to the
availability of water and valid existing water rights.
Information provided to the Committee from the Department
of the Interior is inconclusive as to full extent of available
ground water on the Centennial acreage. As this report is
written it is known that pumping domestic water quantities from
the Lower Centennial Flat groundwater reservoir for many years
may induce a measurable ground water level decline up to one
mile away. However, pumping would not impact other communities
in the area because the ground water in the Lower Centennial
Flat basin is not connected to nearby community water supply
sources. Coso Spring, over 10 miles south at an elevation of
about 5,400 feet, is the water supply for the town of Darwin.
The Keeler water supply well, over 10 miles north, is in the
alluvial fan west of the Inyo Mountains and is recharged by
runoff on the fan. Nevertheless, the Committee recognizes
concerns of existing water users in these areas regarding the
availability of sufficient water to fulfill the Tribe's Federal
water right of up to 10 acre feet per year for the Centennial
parcel. The Committee notes the language of section (5)(b)(2)
which provides that the priority date of the Tribe's Federal
water rights shall be the date of enactment of this Act, thus
designating the Tribe's water rights as junior to all existing
state and Federal water rights. The Committee further observes
that, if the Secretary were to seek to purchase water rights
for the Tribe, the policy of the Committee and the Congress,
consistent with the provisions of section (5)(d), limits the
Secretary to purchase such rights only from willing sellers, at
no less than fair market value.
Centennial is an important location at the western edge of
the Tribe's ancestral lands in view of Hunter Mountain, a
sacred site and traditional hunting and camping area. Tribal
cultural history maintains that there is a sacred relationship
between Hunter Mountain and the valley floors below. The area
was used for both summer and winter camps, and is documented as
a place where tribal members conducted communal rabbit and
antelope hunts and gathered basketry materials.
D. 2,800 acres at Scotty's Junction, Nevada, together with
375.5 acre feet per annum of ground water for the purposes
associated with the transfer of such lands.
Scotty's Junction is located east of the Park in Nye
County, Nevada, on the junction of Highways 95 and 267 which is
the access road to northern Death Valley. The land is in the
Sarcobatus Flat valley bottom, and the terrain is relatively
flat with low lying hot desert shrubs. The area is within the
Tribe's ancestral area and several tribal families lived there,
with tribal members hunting for bighorn sheep and deer until
the 1940's. This parcel of land would be used for several
residences and small businesses.
Scotty's Junction is supplied only by ground water from an
aquifer 200 to 300 feet below the surface. The annual yield in
the valley in which it is located is about 3,000 acre feet with
an annual discharge of about 5 acre feet per acre. Current
water use in the area is between 1,200 and 2,000 acre feet,
leaving approximately 1,000 acre feet per year available on a
valley-wide basis.
E. 3,000 acres at Lida, Nevada, together with 14.7 acre
feet per annum of ground water for the purposes associated with
the transfer of such lands.
This parcel of land is located north of Death Valley
National Park in Esmeralda County, Nevada, and lies on the
eastern slope of the Palmetto Mountains. Its terrain varies
from gradual to steep and rugged slopes and contains a mix of
hot desert shrub and pinon-juniper vegetation. The parcel is
adjacent to the historic town of Lida.
The area has been used continuously by the Tribe since at
least the early nineteenthcentury, and continues to be used for
hunting, harvesting pine nuts, and ceremonies. At least five
traditional villages were located in this area which is also the
birthplace and burial area of relatives and ancestors. There are at
least four springs known to tribal members who in the past had gardens
and raised cattle in the area. The land would be used for residences
and for economic development.
Ground water is supplied by an alluvial fill aquifer
primarily recharged by local precipitation, with annual
recharge estimated to be 150 acre feet per year. Local yield,
estimated to be about 30 acre feet per year, is of generally
good quality and sufficient to supply several residences and
small businesses.
Subsection (b)(2) provides that the priority date of the
Federal water rights described in subparagraphs (A) through (E)
of paragraph (1) shall be the date of enactment of this Act,
that such water rights shall be junior to Federal and State
water rights existing on such date, and shall not be subject to
relinquishment, forfeiture, or abandonment by the Tribe.
Subsection (b)(3) limits tribal community and residential
development in the Furnace Creek area to a maximum of 50
single-family residences, a tribal community center with space
for tribal offices, recreation facilities, a multipurpose room
and kitchen, and senior and youth facilities, and limits
economic development to a small-to-moderate desert inn, a
tribal museum and cultural center with a gift shop, together
with the infrastructure necessary to support all such
development.
Subsection (b)(3)(B) authorizes the NPS and the Tribe to
negotiate visitor-related economic development in lieu of that
described in the previous subparagraph if such alternative
development will have no greater environmental impact.
Subsection (b)(3)(C) provides that the Tribe shall have a
right-of-way for ingress and egress on Highway 190 in
California.
Subsection (b)(4) states that nothing in this Act shall be
construed as terminating any valid existing mining claim or
limit existing rights associated with such a claim.
Subsection (c) requires the Secretary to file a legal
description of the areas described in subsection (b) with the
House Committee on Resources, the Senate Committee on Indian
Affairs and the Senate Committee on Energy and Natural
Resources within one year of enactment, and to make such
description available for public inspection in NPS and BLM
offices.
Subsection (d) authorizes the Secretary to purchase, from
willing sellers, and to take in trust for the Tribe,
approximately 120 acres known as the Indian Rancheria Site,
California, and approximately 2,340 acres comprising the Lida
Ranch, Nevada, or another parcel mutually agreed upon by the
Secretary and the Tribe, with appurtenant or separate water
rights.
Subsection (e) provides for the designation of three areas
as nonexclusive special use areas wherein the Tribe, subject to
other Federal law, may engage in low impact, ecologically
sustainable, traditional practices pursuant to a management
plan jointly established and agreed to by the Tribe, the NPS,
and the BLM.
In the special use areas, in recognition of the Tribe's
significant contributions to the history, ecology and culture
of the Park and to ensure that the visitor experience in the
Park will be enhanced by the increased and continued presence
of the Tribe, the Secretary shall permit the Tribe's continued
use of Park resources for traditional tribal purposes,
practices, and activities that are not in derogation of Park
purposes and values.
These special use areas, which shall be depicted on NPS and
BLM maps that are provided for general visitor use, are:
(A) Mesquite Use Area, where the Tribe may process mesquite
using traditional plant management techniques such as thinning,
pruning, harvesting, removing excess sand, and removing exotic
species. The NPS may limit and condition, but not prohibit
entirely, public use of this area, in consultation with the
Tribe. The area is to be managed in accordance with the joint
management plan referred to paragraph (1);
(B) Buffer Area, wherein the NPS shall restrict visitor use
to protect the privacy of the Tribe to enable the Tribe to
conduct community affairs without undue interruption from the
public; and
(C) Timbisha Shoshone Natural and Cultural Preservation
Area, where the Tribe may establish and maintain a tribal
resource management field office, garage and storage area at
the site of an existing ranger station at Wildrose, and tribal
members may use traditional camps at Wildrose and Hunter
Mountain.
The NPS and BLM shall accommodate access and use by the
Tribe of this area for traditional cultural and religious
activities and shall, at the request of the Tribe, temporarily
close to the general public the smallest practicable portions
of the area for the minimum period of time necessary to protect
the privacy of tribal members engaging in traditional cultural
and religious activities.
Subsection (f) provides that members of the Tribe shall
have the right to enter and use the Park without payment of any
fee for admission into the Park.
Subsection (g) provides that the trust lands constituting
the Timbisha Shoshone Reservation shall be administered
pursuant to the laws and regulations applicable to other Indian
trust lands, except as otherwise provided in this Act.
Section 6. Implementation process
Subsection (a) requires the NPS, BLM and the Tribe to enter
into government-to-government consultations and develop
protocols to review planned development in the Park,
andauthorizes the NPS and the BLM to enter into cooperative agreements
with the Tribe to provide training on the interpretation, management,
protection, and preservation of the natural and cultural resources of
the special use area as designated under Section 5.
Subsection (b) requires the NPS and the Tribe to develop
mutually agreed-upon standards for size, impact, and design for
use in planning, resources protection, and development of the
Furnace Creek area and for the facilities at Wildrose. These
standards shall be based on standards for recognized best
practices for environmental sustainability and shall not be
less restrictive than the environmental standards applied
within the National Park System. Development in the area is to
be consistent with these standards, which shall be reviewed
periodically and revised as necessary.
Section 7. Miscellaneous provisions
Subsection (a) requires the Secretary, insofar as
practicable, to give first preference in employment for any
construction, maintenance, interpretation, or other service in
the Park to qualified members of the Tribe.
Subsection (b) prohibits gaming, as defined and regulated
by the Indian Gaming Regulatory Act (IGRA) (25 U.S.C. 2701), on
trust lands within the Park.
Subsection (c) provides that lands taken in trust for the
Tribe pursuant to section 5(a) shall be considered to be the
Tribe's initial reservation for purposes of section
20(b)(1)(B)(ii) of the IGRA.
Subsection (d) provides that all lands in California that
are transferred in trust to the Timbisha Shoshone Tribe shall
be exempt from the State's civil and criminal jurisdiction
pursuant to section 1162 of title 18, United States Code, and
section 1360 of title 28, United States Code, upon the
certification by the Secretary, after consultation with the
Attorney General, that the law enforcement system in place for
such lands will be adequate to provide for the public safety
and the public interest, except that no such certification may
take effect until after three years after the enactment of this
Act.
Section 8. Authorization of appropriations
This section authorizes to be appropriated such sums as may
be necessary to carry out this Act.
cost and budgetary considerations
The cost estimate for S. 2102, as amended, as provided by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 26, 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. 2102, the Timbisha
Shoshone Homeland Act.
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. 2102--Timbisha Shoshone Homeland Act
CBO estimates that implementing S. 2102 would cost about
$14 million over the 2001-2005 period, assuming appropriation
of the necessary amounts. The bill would not affect direct
spending or receipts; thus, pay-as-you-go procedures would not
apply. S. 2102 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Enactment of this bill would benefit the Timbisha Shoshone
tribe, and would have no significant impact on the budgets of
state, local, or other tribal governments.
S. 2102 would establish a reservation for the Timbisha
Shoshone Tribe of California and Nevada. The bill would direct
the Secretary of the Interior to take into trust for the
benefit of that tribe, subject to valid existing rights
approximately 7,754 acres of federal land currently
administered by the Bureau of Land Management (BLM) and the
National Park Service (NPS) and about 508 acre-feet per year of
federal water rights. S. 2102 also would authorize the
Secretary to purchase and take into trust about 2,500 acres of
privately owned land. Under the bill, the agencies and the
tribe could negotiate cooperative agreements for the purpose of
planning, developing, and managing areas within the reservation
designated for special uses by the tribe.
Based on information from the Department of the Interior,
CBO estimates that purchasing additional privately owned land
for the tribe would cost about $14 million. We estimate that
the administrative cost of taking the land into trust and any
additional costs incurred by the land management agencies would
be insignificant in any given year. According to BML and NPS,
the federal land to be taken into trust currently does not
generate significant receipts, and the agencies do not expect
it to generate significant receipts over the next ten years.
The CBO staff contact is Nanette Keith. This estimate was
approved by Robert A. Sunshine, Assistant Director for Budget
Analysis.
executive communications
The views of the Administration on S. 2102 are set forth in
the following letters of March 21, 2000, and May 1, 2000, from
Donald J. Barry, assistant Secretary for Fish Wildlife and
Parks, Department of the Interior, to the Chairman of the
Committee on Indian Affairs, Senator Ben Nighthorse Campbell:
Department of the Interior,
Office of the Secretary,
Washington, DC, March 21, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 2102, a bill to provide a land
base, or homeland, for the Timbisha Shoshone Tribe inside and
outside Death Valley National Park. The Department supports
this bill, with amendments, as it would provide a comprehensive
integrated plan to establish a permanent homeland for the tribe
sufficient to meet its needs into the future.
For thousands of years, the Timbisha Shoshone Tribe has
lived in its ancestral homelands in the Mojave Desert, much of
which is now in Death Valley National Park. The Timbisha are
integrally tied to this land. Since 1850 the Timbisha have been
dislocated from this land, first by homesteaders and ranchers,
and later by mining interests. In 1933 President Hoover
established Death Valley National Monument by executive
proclamation under the Antiquities Act. The order creating the
Monument was silent on the question of the Timbisha Shoshone
land tenure. To address this situation, the National Park
Service and the Bureau of Indian Affairs entered into an
agreement to establish the Timbisha Shoshone village and to
construct adobe residences in the Furnace Creek Area of the
Monument. Unable to continue caring for their land within this
unit of the park system, and limited economic opportunities in
the area, many Timbisha families left the area. Today, about 50
tribal members live in seven adobe residences and eleven mobile
residences at Furnace Creek.
In 1994, as part of the California Desert Protection Act,
Congress recognized the hardships the Timbisha have endured by
requiring the Secretary of the Interior to study and identify
lands that would be suitable for a reservation for the Timbisha
Shoshone Tribe. A suitability study was conducted on a
government-to-government basis with representatives of the
Timbisha Tribe and the Department of the Interior. This joint
federal-tribal negotiating team developed a comprehensive plan
to establish a homeland for the tribe. S. 2102 would implement
the recommendations of this plan. The Department of Interior is
currently preparing a legislative Environmental Impact
Statement which will analyze the potential environment effects
of this proposed land transfer.
S. 2102 would transfer five parcels of land, which contain
7,540 acres, in trust to the Timbisha Tribe. These parcels
would constitute a discontinuous reservation for the tribe.
This is appropriate, given the desert environment in which
essential resources like water are scarce and separated by vast
distances. The existence of mining claims, the availability of
infrastructure such as roads, power, and other services, and
the fact that much of the land in this area has specialresource
designations, have resulted in the identification of several parcels to
meet tribal needs, rather than a single contiguous parcel. In addition,
a discontinuous reservation mirrors the way the Timbisha Shoshone
people historically used their ancestral homelands, which covered more
than eleven million acres. They used highlands during the hot summers
and the valley floors in the cooler winters while drawing on a wide
range of resources for sustenance. The parcels identified in S. 2102 as
the tribe's proposed reservation represent many of the historical areas
used traditionally by the tribe.
S. 2102 would transfer into trust for the benefit of the
Timbisha Shoshone approximately 320 acres of Furnace Creek in
Death Valley National Park, and 7,240 acres of land close to
the park, located in California and Nevada and currently under
the administration of the Bureau of Land Management (BLM). The
bill also authorizes the purchase of two additional properties
now in private ownership, to be taken into trust for the tribe.
Each of these lands is located within the ancestral homeland of
the Timbisha Shoshone Tribe, and each is of particular
historical, cultural, or spiritual significance.
Over 95 percent of the acreage to be taken into trust for
the Timbisha is presently under the jurisdiction of the BLM.
The acreage is to be transferred in four parcels, which are
located in Centennial, California; Death Valley Junction,
California; Scotty's Junction, Nevada; and Lida, Nevada. While
the current California Desert Conservation Protection Plan
specifies that the Centennial and Death Valley Junction parcels
are to be retained by BLM, the BLM now believes, based on its
analysis of the current uses and resource values, that these
parcels are suitable for legislative transfer to the tribe.
Each of the 2,800 acre parcels located in Scotty's Junction and
Lida, Nevada, have been classified as suitable for disposal in
BLM management plans. The parcel at Scotty's Junction is
suitable for tribal residences, or development. The parcel at
Lida, Nevada, is an area that once had five traditional
Timbisha villages, and continues to be used by the tribe. It is
also suitable for residences and economic development. The 640-
acre parcel at Centennial, California, lies to the west of
Death Valley National Park, and would preserve a tribal
presence on the western edge of its ancestral homelands. It is
suitable for residences. The 1,000-acre parcel at Death Valley
Junction, California, is located at the main entrance to the
park and is suitable for economic development and residences.
S. 2102 also authorizes the acquisition of the privately-
owned 2,430-acre Lida Ranch, in Lida, Nevada, and the 120-acre
Indian Rancheria Site, in Saline Valley, California.
The land that is central to the Timbisha's present-day
existence is the 300-acre parcel at Furnace Creek, Death Valley
National Park. This site is the current home of the Timbisha,
and has the potential for modest economic development. This
potential is recognized by Section 5(b)(2) of S. 2101, which
would allow the Timbisha to construct and operate a small to
moderate desert inn and a tribal museum on this land. S. 2102
also allows for the construction of residences and a community
center at Furnace Creek, while recognizing the need to ensure
the protection of national park resources.
Section 5(d)(4) of S. 2102 authorizes the National Park
Service and the Bureau of Land Management to designate certain
areas for nonexclusive special uses subject to Federal law.
This section creates a unique partnership between the Timbisha
Shoshone and federal land managers and encourages collaborative
efforts to learn from the tribe's traditional knowledge of the
area. These areas would remain in federal ownership, and
applicable laws relating to wilderness, endangered species, and
cultural resources would remain in force. Tribal members would
use these areas for low-impact, ecologically sustainable,
traditional practices pursuant to jointly established
management plans. The allowed traditional uses of the tribe
would not include the taking of wildlife within Death Valley
National Park.
Two special use areas are located near the proposed tribal
land at Furnace Creek in the park. S. 2102 provides for a
buffer zone of approximately 1,500 acres between Highway 190
and the trust parcel and between the trust parcel and the
inholding development at Furnace Creek. This area would be
managed by the National Park Service to ensure that the tribe
is able to conduct its community affairs without undue
disruption from the public. The Mesquite Use area of
approximately 2,000 acres surrounds the western and southern
boundaries of the trust parcel at Furnace Creek. The tribe
would use this area for processing mesquite, a key element of
their traditional diet, and mange the area using traditional
plant management practices. This area would be managed subject
to a cooperative agreement between the National Park Service
and the tribe for the traditional uses of mesquite in a
sustainable fashion.
The proposed special use area called the Timbisha Shoshone
Natural and Cultural Preservation Area encompasses nearly one-
half of Death Valley National Park. It is located primarily
within the Park, although it includes a small area in
California managed by the BLM. We support this designation as
it recognizes the tribe's contributions to the history,
culture, and ecology of the region and the inherent value of
the tribe's continued presence in the Park. Consistent with
such designation, the Secretary would be directed to permit the
tribe's continued use of park resources for traditional tribal
purposes, practices and activities, as defined in a jointly
established management plan. Within this large area, two
smaller areas would be designated for special tribal uses, one
at Wildrose, and the other at Hunter Mountain. Portions of
these areas are not designated wilderness areas. Wildrose was
an area that the Tribe used for seasonal residence to escape
the summer heat, and for the harvest and processing of pinyon
nut which continue to be important in the tribal diet. The bill
provides for a tribal resource management office, a garage and
storage facility at Wildrose within the area of the existing
ranger station, and for traditional use camps at areas agreed
to by the tribe and the National Park Service. Hunter Mountain
is an important ceremonial area containing burials and sacred
sites. The bill provides for traditional use camps at Hunter
Mountain, also in non-wilderness locations agreed to by the
tribe and the National Park Service.
In addition, the bill provides for access by tribal members
to the park without fee admission payment, government-to-
government agreements to establish cooperative partnerships and
protocols for the review of planned development within the
park. The agencies would be authorized to provide training and
technical assistance to the tribe, and to provide preferential
hiring to qualified members of the tribe.
S. 2102 provides that all of the parcels taken into trust
would constitute the initial reservation of the Timbisha
Shoshone Tribe under the Indian Gaming Regulatory Act.
Consequently, class II gaming, commonly known as bingo, could
occur on the parcels if the state in which the parcel is
located permits such gaming and the tribe has a gaming
ordinance approved by the NationalIndian Gaming Commission.
Class III gaming, commonly known as casino gaming, can occur on these
parcels only if: (1) class III gaming is permitted by the state, (2)
the tribe has a gaming ordinance approved by the National Indian Gaming
Commission, and (3) the tribe and the governor of the state within
which the parcel is located successfully negotiate a gaming compact.
The effect of this would be to require the Timbisha to
negotiate a compact with either California or Nevada if it
wished to conduct class III gaming on lands located in those
states. The Timbisha Shoshone Tribe would be able to conduct
class II gaming without federal approval of the concurrence of
the governor of the state in which the Indian lands are located
if the State otherwise permits such gaming by any person or
organization and the Timbisha Shoshone Tribe has an ordinance
approved the National Indian Gaming Commission.
S. 2102 also provides for a prohibition on gaming on the
Furnace Creek parcel within Death Valley National Park. This
prohibition is consistent with the agreement the Department
negotiated with the Timbisha Shoeshone Tribe during our study
process. Both the Tribe and Department agreed that gaming on
the Furnace Creek parcel would be inconsistent with tribal and
park purposes and values. We are recommending that Section 7(c)
of S. 2102 be amended to make it clear that the Furnace Creek
parcel would not be considered part of the Timbisha Shoshone's
``initial reservation'' for purposes of gaming under the Indian
Gaming Regulatory Act.
The Department strongly supports S. 2102. The bill would
create a foundation for the tribe to live in a modern community
and to exercise its right to self-determination within the
boundaries of the largest national park in the ``lower 48.''
The bill also recognizes that the interests of the tribe and
the National Park Service would be enhanced by recognizing
their coexistence on the same land and by establishing
partnerships for compatible land uses. Quite simply, we believe
that this bill would create the foundation for a better park--a
park in which the contributions of the tribe to the history,
culture and ecology of the region are recognized and
interpreted in ways not now possible.
At the same time, we believe that S. 2102 provides
sufficient safeguards that ensure that the resources of Death
Valley National Park will be protected.
The Timbisha Shoshone Tribe deserves a homeland within
which it can exercise its inherent right of self-governance and
provide a decent standard of living for its people. The
American people will benefit as the human history of Death
Valley National Park becomes more fully expressed through a
renewed and vibrant tribal presence. And finally, this bill
establishes a firm foundation for cooperative, collaborative,
partnerships among governments which can only enrich our
American heritage.
We recommend amendments to the bill on issues relating to
wildlife and gaming prohibitions on land within Death Valley
National Park, Public Law 280, and on federal reserved water
rights. The Department's amendment on wildlife clarifies that
Timbisha traditional purposes, practices, and activities in the
special use areas that would be created in the park does not
include the taking of wildlife. The Department's amendment on
Public Law 280 would clarify that Sec. 7(d) applies only to the
trust lands located in California proposed for transfer by S.
2102. The Department and the Timbisha Shoshone are currently
working on issues related to federal reserved water rights
including the possibility of quantification at each parcel to
be taken into trust for the tribe. We will continue to work on
these issues in consultation with the State of Nevada and
California and will provide a proposed amendment once these
negotiations are completed. We understand that the Department
of Justice is also reviewing this bill and may provide its
views on provisions dealing with law enforcement, water rights,
and other issues in the near future. We will be happy to work
with the committee staff on developing this language.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Donald J. Barry,
Assistant Secretary for
Fish, Wildlife, and Parks.
------
Department of the Interior,
Office of the Secretary,
Washington, DC, May 1, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: On behalf of the Department of the
Interior, we are submitting the following amendments as was
noted in our March 21, 2000, testimony on S. 2102. The first
amendment clarifies that the traditional practices in the
special use areas of the park section of the bill does not
include the taking of wildlife. The second amendment, clarifies
that the ``initial reservation'' for purposes of the Indian
Gaming Regulatory Act does not include the Furnace Creek parcel
which is located within the boundaries of Death Valley National
Park. The third amendment will be submitted by the Department
of Justice to address the Administration's concerns regarding
tribal lands to be located in California. The fourth, fifth and
sixth amendments provide for a quantification of water at each
of the five parcels proposed for transfer and describe the
attributes of those water rights.
In addition, we are submitting a complete set of all the
maps referenced in the legislation in an 8\1/2\ x 11 format and
poster-size GIS maps of the land transfer parcels and the
special use areas. Please note that only one map, Map #8
entitled ``Furnace Creek trust parcels and cooperative
agreement areas,'' is provided for the ``Mesquite Use Area''
and for the ``Buffer Area'' described in the proposed
legislation.
In our written testimony, we provided the acreage amount of
1,500 acres for the buffer area to be inserted in Section
5(e)(4)(B), page 12, line 19 of S. 2102.
The Office of Management and Budget has advised that from
the perspective of the Administration's program, there is no
objection of the submission of this report.
We appreciate your consideration of these amendmends.
Sincerely,
Donald J. Barry,
Assistant Secretary for
Fish and Wildlife and Parks.
Department of Interior Proposed Amendments to S. 2102 a bill ``To
establish a Timbisha Shoshone Homeland''
1. Proposed clarification of ``traditional practices''
language in the special use areas of the park section of the
draft bill.
Section 5(e)(3) Page 11, line 24, after ``shall not''
insert ``include the taking of wildlife and shall not''.
2. To clarify that the Furnace Creek trust parcel within
the park is not part of the tribe's ``initial reservation'' for
purposes of gaming under the Indian Gaming Regulatory Act.
Section 7(c), Page 17, line 1, replace with the following:
``The lands taken into trust for the Tribe, except for the Park
land described in section 5(b)(1)(A), shall be considered to be
the Tribe's initial reservation for purposes of section
20(b)(1)(B)(ii) of the Indian Gaming Regulatory Act (25 U.S.C.
2719(b)(1)(B)(ii)).''
3. The Department concurs with the substitute amendment for
section 7(d) that is recommended by the Department of Justice.
4. To clarify that the transfer of land includes the
following quantified water rights.
Section 5(b)(1), page 6, line 3, after ``following lands''
insert: ``and water''.
5. To provide a quantified ground water right for each
parcel to be transferred in subsections 5(b)(1)(A), (B), (C),
(D), and (E) the following language should be inserted at the
end of the description for each parcel:
Section 5(b)(1)(A) Furnace Creek, page 6, line 8, after
``Map #1 and dated December 3, 1999'' insert: ``together with
92 acre feet per annum of surface and ground water for the
purposes associated with the transfer of lands.''
Section 5(b)(1)(B) Death Valley Junction, page 6, line 24,
after ``Map #2 and dated December 3, 1999'' insert: ``together
with 15.1 acre feet per annum of ground water for the purposes
associated with the transfer of lands.''
Section 5(b)(1)(C) Centennial, page 7, line 4, after ``Map
#3 and dated December 3, 1999'' insert: ``together with an
amount of ground water not to exceed 10 acre feet per annum for
the purposes associated with the transfer of lands.''
Section 5(b)(1)(D) Scotty's Junction, page 7, line 9, after
``Map #4 and dated December 3, 1999'' insert: ``together with
375.5 acre feet per annum of ground water for the purposes
associated with the transfer of lands.''
Section 5(b)(1)(E) Lida, page 7, line 14, after ``Map #5
and dated December 3, 1999'' insert: ``together with 14.7 acre
feet per annum of ground water for the purposes associated with
the transfer of lands.''
6. Section 5(b)(2), page 7, line 15, insert new subsection
(2) and renumber the current subsection (2) and subsequent
subsections:
``(2) Water rights.--The priority date of these
federal water rights set forth in subsections
5(b)(1)(A), (B), (C), (D), and (E) shall be the date of
the enactment of this Act. These water rights shall be
subject to existing state and federal water rights.
These water rights shall not be subject to
relinquishment, forfeiture or abandonment.
regulatory impact statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill S. 2102, as amended. The Committee finds
that the regulatory impact of S. 2102, as amended, will be
minimal.
changes in existing law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill are required to be set forth in the accompanying
Committee report. The Committee states that enactment of S.
2102 will not result in any changes in existing law.