[Senate Report 106-418]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 827
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-418

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



 
  SAND CREEK MASSACRE NATIONAL HISTORIC SITE ESTABLISHMENT ACT OF 2000

                                _______
                                

  September 25 (legislative day, September 22), 2000.--Ordered to be 
                                printed

                                _______
                                

  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2950]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2950) to authorize the Secretary of the 
Interior to establish the Sand Creek Massacre National Historic 
Site in the State of Colorado, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill, as amended, do pass.
    The amendments are as follows:
    1. On page 1, line 9, strike ``Northern and Southern''.
    2. On page 1, lines 9 and 10, strike ``Indians'' and insert 
in lieu thereof ``Indians under the leadership of Chief Black 
Kettle,''.
    3. On page 2, line 10, strike ``,''.
    4. On page 3, line 22, strike ``for tribes'' and insert in 
lieu thereof ``for the tribes and the State''.
    5. On page 4, line 19, strike ``Cheyenne Tribe'' and insert 
in lieu thereof ``Cheyenne and Arapaho Tribes''.
    6. On page 4, line 20, strike subsection ``(B)'' in its 
entirety and redesignate the following subsections accordingly.
    7. On page 7, line 20, strike ``with the'' and insert in 
lieu thereof ``with and solicit advice and recommendations from 
the''.
    8. On page 8, strike subsection ``(b)'' in its entirety and 
redesignate the remaining subsections accordingly.
    9. On page 10, line 14, strike ``Special''.
    10. On page 10, line 15, strike ``special'' and insert 
``reasonable''.
    11. On page 10, line 21, strike ``special'' and insert 
``reasonable''.
    12. On page 11, line 11, strike all of subsection (b) 
through page 11, line 24, and replace with:

          ``(b) Conditions of Access.--In granting access under 
        subsection (a), the Secretary shall temporarily close 
        to the general public one or more specific portions of 
        the site in order to protect the privacy of tribal 
        members engaging in a traditional, cultural, or 
        historical observance in those portions; and any such 
        closure shall be made in a manner that affects the 
        smallest practicable area for the minimum period 
        necessary for the purposes described above.''.

    13. On page 12, line 21, strike ``tribes located in the 
vicinity of the site.'' and insert in lieu thereof ``the 
tribes.''.

                         purpose of the measure

    The purpose of S. 2950 is to authorize the Secretary of the 
Interior to establish the Sand Creek Massacre National Historic 
Site in the State of Colorado.

                          background and need

    On November 29, 1864, a village of about 500 Cheyenne and 
Arapaho Indians along Sand Creek in southeastern Colorado was 
attacked by approximately 700 volunteer soldiers commanded by 
Colonel John M. Chivington. More than 150 Cheyenne and Arapahos 
were killed in the attack, mostly women, children, and the 
elderly. During that afternoon and the following day, the 
soldiers followed up the massacre by committing atrocities on 
the dead before withdrawing from the field.
    The massacre remains a matter of great historical, cultural 
and spiritual importance to the Cheyenne and Arapaho Tribes, 
and is a pivotal event in the history of relations between the 
Plains Indians and Euro-American settlers.
    The Sand Creek Massacre National Historic Site Study Act 
(Public Law 105-243) directed the National Park Service, in 
consultation with the State of Colorado, the Cheyenne and 
Arapaho Tribes of Oklahoma, the Northern Cheyenne Tribe, and 
the Northern Arapaho Tribe, to complete two tasks. First, the 
Act directed the Park Service to ``identify the location and 
extent of the massacre area.'' Second, the Act directed the 
Park Service to prepare a report that assessed the national 
significance of the Sand Creek Massacre site, the suitability 
and feasibility of designating it as a unit of the National 
Park System, and a range of alternatives for the management, 
administration, and protection of the area.
    The first of these tasks was addressed in a separate report 
entitled Sand Creek Massacre Project, Volume 1: Site Location 
Study. In the Site Location Study, the National Park Service, 
the State of Colorado, the Northern Cheyenne Tribe, the 
Northern Arapaho Tribe, and the Cheyenne and Arapaho Tribes of 
Oklahoma agreed on the location and extent of the massacre. The 
area lies in Kiowa County, Colorado. It encircles a running 
engagement and extends approximately 5\1/2\ miles in length and 
2 miles in width. Included within this boundary are key 
features of the massacre, including the Cheyenne and Arapaho 
village site, the ``sandpits'' area where the fiercest fighting 
took place, the area of Indian flight, and the point from which 
Colonel Chivington and his troops launched their attack upon 
the Indian encampment.
    The Special Resource Study/Environmental Assessment 
addresses the national significance of the Sand Creek Massacre 
site and the suitability and feasibility of designating it as a 
unit of the National Park System. The study also identified 
alternatives for the management of the site, and the impacts of 
those alternatives. The study found that the Sand Creek 
Massacre site meets all of the criteria used to determine the 
national significance of a natural, cultural, or recreational 
resource with the respect to inclusion within the National Park 
System. Furthermore, the study found that the site is both 
suitable and feasible for inclusion as a unit of the National 
Park System, and identified a range of alternatives under which 
the site could be managed.
    S. 2950 authorizes the establishment of the Sand Creek 
Massacre National Historic Site as a unit of the National Park 
System, consisting of approximately 12,480 acres in Kiowa 
County, Colorado. The measure provides descendants of the 
massacre and members of specific tribes with special access and 
use rights for commemorative activities and for the purpose of 
carrying out traditional, cultural, or historic observances. In 
addition, the measure requires that a certain portion of the 
land within the site be dedicated for the repatriation of 
Native American human remains and other items associated with 
the Sand Creek Massacre.

                          legislative history

    S. 2950 was introduced by Senator Campbell on July 27, 
2000. The Subcommittee on National Parks, Historic Preservation 
and Recreation held a hearing on S. 2950 on September 14, 2000. 
At the business meeting on September 20, 2000, the Committee on 
Energy and Natural Resources ordered S. 2950 favorably 
reported, as amended.

                        committee recommendation

    The Committee on Energy and Natural Resources, in open 
business session on September 20, 2000, by a unanimous vote of 
a quorum present, recommends that the Senate pass S. 2950, if 
amended as described herein.

                          committee amendments

    During the consideration of S. 2950, the Committee adopted 
several amendments to make technical and clarifying changes, 
and also adopted several amendments making substantive changes 
to the bill.
    An amendment was adopted clarifying the role of the State 
of Coloradoand the tribes in developing the park's management 
plan and educational programs. Another amendment was adopted to delete 
a provision in the bill that would have required the Secretary of the 
Interior to permit the continuation of traditional agricultural and 
ranching activities on privately owned lands within the boundaries of 
the site. Since the Secretary does not have the authority to prohibit 
such activities on privately owned land, the provision was unnecessary.
    Finally, an amendment was adopted deleting language in the 
bill that would have required the Secretary to consult only 
with tribes located in the vicinity of the site when addressing 
the access needs and rights of descendants regarding 
traditional, cultural, or historical observances. Since there 
are no tribes located in the vicinity of the site, the language 
was corrected to simply refer to the tribes that are defined in 
the bill.

                      section-by-section analysis

    Section 1 designates the bill's short title.
    Section 2(a) contains Congressional findings.
    Subsection (b) defines the purposes of the legislation, 
which are: (1) to recognize the importance of the Sand Creek 
Massacre; (2) to authorize the establishment of the Sand Creek 
Massacre National Historic Site; and (3) to provide 
opportunities for tribes to be involved in the formulation of 
general management plans and educational programs for the site.
    Section 3 provides definitions for key terms used in the 
legislation, including the term ``tribe'' which means the 
specific tribes connected with the Sand Creek Massacre site. 
The term ``descendant'' means a member of a tribe, an ancestor 
of whom was injured or killed in, or otherwise affected by, the 
Sand Creek Massacre.
    Section 4(a) authorizes the Secretary of the Interior 
(Secretary) to establish the Sand Creek Massacre National 
Historic Site (site) when he has determined that lands 
containing a sufficient quantity of resources to provide for 
the preservation, memorialization, commemoration, and 
interpretation of the Sand Creek Massacre have been acquired by 
the National Park Service.
    Subsection (b) describes that the site will consist of 
approximately 12,480 acres in Kiowa County, Colorado as 
generally depicted on the specified map reference.
    Section 5(a) requires the site to be managed in accordance 
with the laws applicable to the National Park System.
    Subsection (b) requires the Secretary to protect and 
preserve the site's resources, interpret and provide for public 
understanding of its natural and cultural resources values, and 
to memorialize, commemorate, and provide information to 
visitors to enhance cultural understanding about the site and 
assist in minimizing the chances of similar incidents in the 
future.
    Subsection (c) requires the Secretary to consult with and 
solicit advice and recommendations from the tribes and the 
State in preparing the site's management plan and educational 
material, and authorizes the Secretary to enter into 
cooperative agreements.
    Section 6(a) authorizes the acquisition of land or 
interests in land within the boundaries of the site by purchase 
from willing sellers, donation, or exchange. Lands owned by the 
State may only be acquired through donation.
    Subsection (b) requires the Secretary to give priority to 
acquisition of the land that includes the existing Sand Creek 
Battleground marker.
    Subsection (c) requires the Secretary to use cost-effective 
alternatives to fee ownership of the land where practical, 
including conservation easements and other means of 
acquisition. A support facility for the site that is not within 
the designated boundaries may be located in Kiowa County, 
Colorado, subject to an agreement between the County and the 
Secretary.
    Section 7 requires a management plan for the site to be 
prepared within five years after funds are made available to 
carry out the legislation.
    Section 8 provides descendants with reasonable rights of 
access and use of the site, and requires that commemorative 
activities of descendants be considered in park planning and 
operations.
    Section 9(a) requires the Secretary to grant any descendant 
or member of a tribe reasonable access to the site for the 
purpose of carrying out a traditional, cultural, or historical 
observance. No fees may be charged for such access.
    Subsection (b) authorizes the Secretary to temporarily 
close specific portions of the site to the general public in 
order to protect the privacy of the traditional, cultural, or 
historical observances under subsection (a). The closures must 
be made in a manner that affects the smallest practicable area 
for the minimum period necessary.
    Subsection (c) requires the Secretary to dedicate a portion 
of the site for the repatriation of human remains and other 
items associated with the Sand Creek Massacre.
    Subsection (d) requires the Secretary to consult with 
descendants and tribes in exercising any authority under this 
section.
    Section 10 authorizes the appropriation of such sums as are 
necessary to carry out the legislation.

                   cost and budgetary considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:
                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 22, 2000.
Hon. Frank H. Murkowski, 
Chairman, Committee On Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2950, the Sand Creek 
Massacre National Historic Site Establishment Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 2950--Sand Creek Massacre National Historic Site Establishment Act 
        of 2000

    S. 2950 would authorize the Secretary of the Interior to 
establish the Sand Creek Massacre National Historic Site in 
Colorado once the National Park Service (NPS) has acquired 
sufficient resources at the site to provide for its 
preservation and interpretation. The NPS could acquire lands 
and other property interests within the 12,480-acre site by 
donation, purchase, or exchange. The bill would require the NPS 
to dedicate a portion of the site to the preservation of human 
remains, funerary objects, and other items that might be found 
on or returned to the site. Within five years of receiving 
funding for this purpose, the agency would prepare a general 
management plan for the site. Finally, the bill would authorize 
the appropriation of whatever amounts are necessary for these 
activities.
    CBO estimates that the NPS would spend $14.5 million over 
the next five to seven years to implement S. 2950, including $2 
million to acquire land for the new historic site, $12 million 
to construct visitor and administrative facilities, and $0.5 
million to prepare a management plan. Once sufficient land has 
been acquired to establish the site, the agency would spend 
about $1.3 million a year to operate and maintain it, including 
making payments in lieu of taxes to local governments. CBO 
estimates that providing space within the site for human 
remains and tribal objects would not add significantly to 
start-up or annual operating costs. These estimates are based 
on information provided by the NPS and assume appropriation of 
the necessary amounts.
    The bill would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply. S. 2950 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act. State and tribal 
governments might incur some costs if they choose to 
participate in the activities authorized by this bill, but 
these costs would be voluntary.
    The CBO staff contact for this estimate is Deborah Reis, 
who can be reached at 226-2860. The estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                      regulatory impact evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2950. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 2950, as ordered reported.

                        executive communications

    On September 15, 2000, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth Executive agency recommendations of S. 2950. These 
reports had not been received at the time the report on S. 2950 
was filed. When the reports become available, the Chairman will 
request that they be printed in the Congressional Record for 
the advice of the Senate. The testimony provided by the 
national park Service at the Subcommittee hearing follows:

statement of donald j. hellmann, deputy assistant director, legislative 
 and congressional affairs, national park service, u.s. department of 
                              the interior


    Mr. Chairman and members of the subcommittee, thank you for 
the opportunity to appear before you to present the position of 
the Department of the Interior on S. 2950, a bill to establish 
the Sand Creek Massacre National Historic Site as a unit of the 
National Park System.
    The Department strongly supports protection of this site 
through S. 2950 with the amendments outlined in this testimony. 
We appreciate the continued interest and support of Senator 
Campbell, and look forward to working with him and the 
subcommittee to protect this site.
    Since the day it happened, the Sand Creek Massacre has been 
regarded as one of the most emotionally charged and 
controversial events in American history. On November 29, 1864, 
Col. John M. Chivington, leading about 700 soldiers of the 
First and Third Colorado Volunteers, attacked a village of 
about 500 Cheyenne and Arapaho people. These people were under 
the overall leadership of Black Kettle, and had camped on Sand 
Creek at the direction of Major Scott Anthony, who commanded 
Fort Lyon, about 40 miles to the south. By day's end, the 
soldiers had killed at least 150 people, including women and 
children.
    The massacre resulted in almost instant controversy, which 
ultimately led to three federal investigations, all of which 
condemned Chivington's actions. By the 1865 Treaty of Little 
Arkansas with the Cheyenne and Arapaho, victims of Sand Creek 
received minor compensation for their suffering and loss of 
property. While some efforts were made to understand the 
massacre, place blame on the responsible parties, and 
compensate the tribes, little was actually done.
    Many people, including Gen. William Tecumseh Sherman, 
visited the site and collected artifacts of all kinds. The land 
was used for large-scale cattle operations, and eventually 
small private landowners farmed and grazed the property. As 
time passed, evidence of the massacre slowly disappeared. 
Although the event continued to be remembered, mostly by the 
tribes and historians, the only commemoration of the massacre 
was a simple granite marker placed near the site by the local 
community in 1950.
    In 1998, P.L. 105-243 authorized the Secretary to identify 
the location and extent of the Sand Creek Massacre, determine 
the suitability and feasibility of designating the site as a 
unit of the National Park System, and present those findings in 
18 months.
    Starting in 1998 a variety of techniques and methods were 
used to locate the site of the Sand Creek Massacre. These 
included a thorough research of written records, archeology, 
geomorphology, aerial photographic analysis, traditional tribal 
methods and recording the oral traditions of the Cheyenne and 
Arapaho Tribes of Oklahoma, the Northern Cheyenne and the 
Northern Arapaho.
    Once the location of the site was identified, the next task 
was to determine national significance and suitability and 
feasibility of the site as a unit of the system. To be eligible 
for consideration, National Park Service Management Policies 
state that an area must possess nationally significant natural, 
cultural or recreational resources; be a suitable and feasible 
addition to the system; and require direct NPS management 
instead of protection by some other governmental agency or 
private sector. The Special Resource Study for the Sand Creek 
Massacre site, completed in July 2000, concluded that the area 
is nationally significant.
    The Sand Creek Massacre site possesses exceptional value in 
illustrating and interpreting the history of U.S.-Indian 
relations in the American West. The massacre at Sand Creek of 
nearly 150 Cheyenne and Arapaho people who believed they were 
under the protection of the U.S. Government was a major turning 
point in the relationship between whites and Indians. Virtually 
all Indian and army conflicts that ensued were rooted, at least 
partly, in the massacre.
    A National Park System unit at Sand Creek would provide an 
opportunity for Americans to better understand the significance 
of the massacre, the chain of events that led to it, the 
relationship between Indians and whites during the mid-to late-
19th Century, the devastating effects of the massacre upon the 
Cheyenne and Arapaho peoples, and its far reaching 
repercussions, many of which linger today. The site also 
retains a high degree of physical integrity, and its isolated 
setting will give visitors an opportunity to contemplate the 
complexities of the human tragedy that unfolded there.
    The Special Resource Study also concluded that Sand Creek 
is both suitable and feasible as a unit of the National Park 
System. The site is suitable because it represents a cultural 
theme that is not already adequately represented in the system. 
As described on the map referenced in S. 2950, the proposed 
national historic site is also a feasible addition in that the 
area taken as a whole is of sufficient size and configuration 
to ensure long-term resource protection and accommodate public 
use. As outlined in the Special Resources Study, acquisition of 
up to 12,480 acres of land and development of the site will 
cost approximately $13,600,000. The preliminary annual cost of 
administering the site is approximately $1,260,000.
    S. 2950 would authorize the establishment of Sand Creek 
National Historic Site. The unit would be established once the 
Secretary of the Interior determines that sufficient lands have 
been acquired to provide for the protection and commemoration 
of the Sand Creek Massacre. Lands are identified on a map date 
July 1, 2000 and would be acquired through donation, purchase 
from willing sellers or exchange. Priority for acquisition is 
given to the site containing the historical marker. Keys to 
managing the site would be protection of the natural and 
cultural features that are critical to telling the story of 
Sand Creek; and cooperation and consultation with the tribes in 
the development of management plans and educational programs.
    S. 2950 calls for the Secretary to consider locating 
support facilities in Kiowa County. The legislation also 
contains important provisions that would provide for special 
needs of the descendants and other members of the identified 
tribes to access and use federally acquired land for the 
purpose of traditional, cultural and historical observances, 
and consultation with respect to commemorative activities. S. 
2950 also calls for the dedication of a portion of the site for 
the purposes of repatriation of human remains.
    One of the major strengths of this project has been the 
extensive consultation and inclusion of the interested 
individuals and organizations, especially tribes, landowners, 
the State of Colorado and Kiowa County. A critical result of 
this effort was the agreement that protection of the site is 
essential. It is essential in part so that we may all learn how 
to deepen our understanding of other cultures.
    We believe some minor amendments are needed in Sections 8 
and 9 that would clarify the intent of the legislation. These 
sections address the special needs of the descendents and 
tribal members of those affected by the Sand Creek Massacre. We 
believe that the two sections should be made consistent with 
recent Congressional direction regarding reasonable 
accommodation of the religious and cultural needs of American 
Indians in units of the National Park System. We would be 
pleased to provide draft language to that effect.
    We also recommended deleting on page 12, line 21, ``located 
in the vicinity of the site'', as there are no tribes located 
in the vicinity of the site.
    We look forward to working with the subcommittee and 
Senator Campbell to ensure that the final bill language 
protects this important site and the story it has to tell.
    That concludes my remarks. I would be happy to answer any 
questions you may have.

                        changes in existing law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 2950, as 
ordered reported.

                                  
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