[Senate Report 108-323]
[From the U.S. Government Publishing Office]
Calendar No. 679
108th Congress Report
SENATE
2d Session 108-323
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SAND CREEK MASSACRE NATIONAL HISTORIC SITE TRUST ACT OF 2004
_______
August 25, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of July 22, 2004
_______
Mr. Domenici, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2173]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2173) to further the purposes of the Sand
Creek Massacre National Historic Site Establishment Act of
2000, having considered the same, reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sand Creek Massacre National Historic
Site Trust Act of 2004''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(2) Facility.--The term ``facility'' means any structure,
utility, road, or sign constructed on the trust property on or
after the date of enactment of this Act.
(3) Improvement.--The term ``improvement'' means--
(A) a 1,625 square foot 1-story ranch house, built in
1952, located in the SW quarter of sec. 30, T. 17 S.,
R. 45 W., sixth principal meridian;
(B) a 3,600 square foot metal-constructed shop
building, built in 1975, located in the SW quarter of
sec. 30, T. 17 S., R. 45 W., sixth principal meridian;
(C) a livestock corral and shelter; and
(D) a water system and wastewater system with all
associated utility connections.
(4) Tribe.--The term ``Tribe'' means the Cheyenne and Arapaho
Tribes of Oklahoma, a federally recognized Indian tribe.
(5) Trust property.--The term ``trust property'' means the
real property, including rights to all minerals, and excluding
the improvements, formerly known as the ``Dawson Ranch'',
consisting of approximately 1,465 total acres presently under
the jurisdiction of the Tribe, situated within Kiowa County,
Colorado, and more particularly described as follows:
(A) The portion of sec. 24, T. 17 S., R. 46 W., sixth
principal meridian, that is the Eastern half of the NW
quarter, the SW quarter of the NE quarter, the NW
quarter of the SE quarter, sixth principal meridian.
(B) All of sec. 25, T. 17 S., R. 46 W., sixth
principal meridian.
(C) All of sec. 30, T. 17 S., R. 45 W., sixth
principal meridian.
SEC. 3. CONVEYANCE OF LAND TO BE HELD IN TRUST FOR THE CHEYENNE AND
ARAPAHO TRIBES OF OKLAHOMA.
(a) Land Held in Trust for the Cheyenne and Arapaho Tribes of
Oklahoma.--Immediately upon conveyance of title to the trust property
by the Tribe to the United States, without any further action by the
Secretary, the trust property shall be held in trust for the benefit of
the Tribe.
(b) Trust.--All right, title, and interest of the United States in
and to the trust property, except any facilities constructed under
section 4(b), are declared to be held by the United States in trust for
the Tribe.
SEC. 4. IMPROVEMENTS AND FACILITIES.
(a) Improvements.--The Secretary may acquire by donation the
improvements in fee.
(b) Facilities.--
(1) In general.--The Secretary may construct a facility on
the trust property only after consulting with, soliciting
advice from, and obtaining the agreement of, the Tribe, the
Northern Cheyenne Tribe, and the Northern Arapaho Tribe.
(2) Ownership.--Facilities constructed with Federal funds or
funds donated to the United States shall be owned in fee by the
United States.
(c) Federal Funds.--For the purposes of the construction,
maintenance, or demolition of improvements or facilities, Federal funds
shall be expended only on improvements or facilities that are owned in
fee by the United States.
SEC. 5. SURVEY OF BOUNDARY LINE; PUBLICATION OF DESCRIPTION.
(a) Survey of Boundary Line.--To accurately establish the boundary of
the trust property, not later than 180 days after the date of enactment
of this Act, the Secretary shall cause a survey to be conducted by the
Office of Cadastral Survey of the Bureau of Land Management of the
boundary lines described in section 2(5).
(b) Publication of Land Description.--
(1) In general.--On completion of the survey under subsection
(a), and acceptance of the survey by the representatives of the
Tribe, the Secretary shall cause the full metes and bounds
description of the lines, with a full and accurate description
of the trust property, to be published in the Federal Register.
(2) Effect.--The description shall, on publication,
constitute the official description of the trust property.
SEC. 6. ADMINISTRATION OF TRUST PROPERTY.
(a) In General.--The trust property shall be administered in
perpetuity by the Secretary as part of the Sand Creek Massacre National
Historic Site, only for historical, traditional, cultural, and other
uses in accordance with the Sand Creek Massacre National Historic Site
Establishment Act of 2000 (16 U.S.C. 461 note; Public Law 106-465).
(b) Access for Administration.--For purposes of administration, the
Secretary shall have access to the trust property, improvements, and
facilities as necessary for management of the Sand Creek Massacre
National Historic Site in accordance with the Sand Creek Massacre
National Historic Site Establishment Act of 2000 (16 U.S.C. 461 note;
Public Law 106-465).
(c) Duty of the Secretary.--The Secretary shall take such action as
is necessary to ensure that the trust property is used only in
accordance with this section.
(d) Savings Provision.--Nothing in this Act supersedes the laws and
policies governing units of the National Park System.
SEC. 7. ACQUISITION OF PROPERTY.
Section 6(a)(2) of the Sand Creek Massacre National Historic Site
Establishment Act of 2000 (16 U.S.C. 461 note; Public Law 106-465) is
amended by inserting ``or exchange'' after ``only by donation''.
Purpose of the Measure
The purpose of S. 2173 is to authorize the Secretary of the
Interior to hold certain lands in trust for the benefit of the
Cheyenne and Arapaho Tribes of Oklahoma in furtherance of the
purposes of the Sand Creek Massacre National Historic Site
Establishment Act of 2000 by holding.
Background and Need
On November 29, 1864, Colonel John M. Chivington led
approximately 700 U.S. volunteer soldiers to a village of about
500 Cheyenne and Arapaho people camped along the banks of Big
Sandy Creek in southeastern Colorado. Although the Cheyenne and
Arapaho people believed they were under the protection of the
U.S. Army, Chivington's troops attacked and killed abut 150
people, mainly women, children, and the elderly. Ultimately,
the massacre was condemned following three federal
investigations.
The Sand Creek Massacre National Historic Site was
authorized in 2000 by Public Law 106-465 to recognize the
national significance of the massacre in American history and
its ongoing significance to the Cheyenne and Arapaho people and
descendants of the massacre victims. The Act authorizes
establishment of the national historic site once the National
Park Service has acquired sufficient land from willing sellers
to preserve, commemorate, and interpret the massacre. The
National Park Service has acquired approximately 920 acres, but
the majority of land within the authorized boundary is
privately owned and is not open to the public. The National
Park Service has been working in partnership with The
Conservation Fund, the Cheyenne and Arapaho Tribes, and the
State of Colorado towards establishment of the Sand Creek
Massacre National Historic Site. S. 2173 would authorize the
Secretary of the Interior to acquire approximately 1,465 acres
owned by the Cheyenne and Arapaho Tribes of Oklahoma, to be
held in trust for the tribes. Once these lands are acquired,
the National Park Service will be able to formally establish
the National Historic Site.
Legislative History
S. 2173 was introduced by Senator Campbell on March 8,
2004. The Senate Subcommittee held a hearing on S. 2173 on May
20, 2004. The Committee on Energy and Natural Resources ordered
S. 2173, as amended, favorably reported on July 14, 2004.
Committee Recommendation
The Committee on Energy and Natural Resources, in an open
business session on July 14, 2004, by a unanimous voice vote of
a quorum present, recommends that the Senate pass S. 2173, if
amended as described herein.
Committee Amendment
During its consideration of S. 2173, the Committee adopted
an amendment in the nature of a substitute. In addition to
making several technical, clarifying, and conforming changes
the amendment clarifies that the property taken into trust does
not include improvements and shall be administered by the
Secretary of the Interior in perpetuity as part of the Sand
Creek Massacre National Historic Site and only for historical,
traditional, cultural and other uses in accordance with the
enabling Act for the National Historic Site. The amendment also
authorizes the Secretary to acquire land for the National
Historic Site by exchange. The amendment is described in detail
in the section-by-section analysis below.
Section by Section Analysis
Section 1 entitles the bill the ``Sand Creek Massacre
National Historic Site Trust Act of 2004.''
Section 2 defines key terms used in the bill. The
definition of ``trust property'', which describes the Dawson
Ranch property to be conveyed by the Cheyenne and Arapaho
tribes of Oklahoma to the United States to be held in trust for
the benefit of the tribes, does include any improvements on the
property.
Section 3(a) provides that, immediately upon conveyance of
title to the trust property to the United States, without any
further action by the Secretary of the Interior (Secretary),
the trust property shall be held in trust for the benefit of
the tribes.
Subsection (b) states that all right, title and interest of
the United States in and to the trust property is declared to
be held by the United States in trust for the tribes.
Section 4(a) authorizes the Secretary to acquire the
improvements to the property by donation.
Subsection (b) provides that the Secretary may construct a
facility on the trust property only after consulting with and
obtaining agreement from the Cheyenne and Arapaho Tribes of
Oklahoma, the Northern Cheyenne Tribe and the Northern Arapaho
Tribe. The subsection further provides that facilities built
with Federal funds or funds donated to the United States shall
be owned by the United States.
Subsection (c) restricts the use of Federal funds for the
construction, maintenance or demolition of improvements or
facilities to improvements or facilities owned in fee by the
United States.
Section 5(a) directs the Secretary to cause a survey to be
conducted within 180 days after the date of enactment to
accurately establish the boundary of the trust property.
Subsection (b) directs the Secretary to publish the full
legal description of the property in the Federal Register upon
completion of the survey.
Section 6(a) states that the trust property shall be
administered in perpetuity by the Secretary as part of the Sand
Creek Massacre National Historic Site only for historical,
traditional, cultural and other uses in accordance with the
Sand Creek Massacre National Historic Site Establishment Act of
2000.
Subsection (b) provides that the Secretary shall have
access to the trust property, including improvements and
facilities, as necessary for administration and management of
the National Historic Site.
Subsection (c) directs the Secretary to take such action as
is necessary to ensure that the trust property is used only in
accordance with this section.
Subsection (d) clarifies that nothing in this Act
supercedes the laws and policies governingunits of the National
Park System.
Section 7 amends section 6(a)(2) of the Sand Creek Massacre
National Historic Site Establishment Act of 2000 to allow the
Secretary to acquire land owned by the State of Colorado by
exchange. Currently the Secretary may only acquire State-owned
land by donation.
Cost and Budgetary Considerations
The following estimate of the cost of this measure has been
provided by the Congressional Budget Office.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 2173--Sand Creek Massacre National Historic Site Trust Act of 2004
S. 2173 would authorize the Secretary of the Interior to
take certain property into trust for the Cheyenne and Arapaho
Tribes of Oklahoma and to construct facilities (including
structures, utilities, roads, or signs) on such land. Any
facility constructed with federal funds would be owned by the
federal government and not taken into trust for the tribes.
Based on information obtained from the National Park Service,
CBO does not expect the Secretary to construct facilities on
the tribes' land over the 2005-2009 period. Therefore, CBO
estimates that implementing S. 2173 would have no significant
effect on the federal budget.
S. 2173 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not significantly affect the budgets of state, local, or
tribal governments.
The CBO staff contact for this estimate is Lanette J.
Walker. This 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. 2173.
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. 2173.
Executive Communications
On May 13, 2004, 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 on S. 2173. These
reports had not been received when this report was filed. The
testimony provided by the Department of the Interior at the
Subcommittee hearing on S. 2173 follows:
Statement of Paul Hoffman, Deputy Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the Interior
Mr. Chairman and members of the subcommittee, thank your
for the opportunity to appear before you today to present the
Department of the Interior's views on S. 2173, a bill to
further the purpose of the Sand Creek Massacre National
Historic Site Establishment Act of 2000. We would like to thank
Senator Campbell for his continued interest and support of this
site.
The Department supports S. 2173 if amended as described at
the end of this testimony. S. 2173 would convey title to a
section of land formerly known as the ``Dawson Ranch'' and
existing structures on that land to the United States to be
held in trust by the Secretary of the Interior and managed by
the National Park Service strictly for the purposes for which
Sand Creek Massacre National Historic Site was authorized by
P.L. 106-465. The purposes of that Act are to recognize the
national significance of the massacre in American history, its
ongoing significance to the Cheyenne and Arapaho people and
descendants of the massacre victims, and the opportunity to
involve the tribes and the State of Colorado in the development
of plans and educational programs for the site. Under the bill,
the property could only be used for historic, religious and
cultural purposes that are compatible with the use of the land
as a national historic site. S. 2173 also would require the
completion of a survey of the ``Dawson Ranch'' to accurately
establish the boundary of the proposed tribal trust lands.
Finally, the bill would declare that the trust property become
a part of the Indian reservation of the Cheyenne and Arapaho
Tribes of Oklahoma.
Sand Creek Massacre National Historic Site is located in
Kiowa County on the eastern plains of Colorado. Within the
boundary of the site there are approximately 12,500 acres of
private and State land that has changed little since 1868. On
November 29, 1864, a group of some 700 volunteer Colorado
militiamen under the command of Colonel John Chivington, a
Civil War hero, entered the Sand Creek camp occupied by about
500 people of the Cheyenne and Arapaho tribes. At the same
time, Cheyenne Chief Black Kettle was conducting peace
negotiations with the U.S. government on behalf of his people.
Although the Cheyenne and Arapaho people believed they were
under the protection of the U.S. Army, Chivington's troops
attacked and killed about 150 people, mainly women, children,
and the elderly.
The massacre resulted in almost instant controversy, which
ultimately led to three federal investigations, all of which
condemned Chivington's actions. In 1865, the Treaty of Little
Arkansas provided victims of Sand Creek minor compensation for
their suffering and loss of property.
As time passed, evidence of the massacre slowly
disappeared. Although the event continued to be remembered, the
only commemoration of the massacre was a simple granite marker
placed near the site by the local community in 1950. Following
the provisions of P.L. 105-243, the National Park Service
completed a study of the area that determined the location and
extent of the Sand Creek Massacre, and the feasibility of
designating the site as a unit of the National Park System.
Those findings were presented to Congress, and the national
historic site was authorized by P.L. 106-465.
The law authorizing Sand Creek Massacre National Historic
Site required that ``sufficient'' land be acquired from willing
sellers ``to provide for the preservation, memorialization,
commemoration, and interpretation of the Sand Creek Massacre''
before the area would be established as a national historic
site. Since February 2001, the Conservation Fund has purchased
and conveyed to the NPS a total of 920 acres from three willing
sellers. The total cost of these purchases is $136,100.
With the transfer of the Dawson Ranch, authorized in S.
2173, the NPS believes it would have sufficient land for
establishment of the national historic site and would forward a
recommendation to the Secretary to formally establish the park.
The Dawson Ranch, which includes approximately 1,465 acres and
four existing buildings, lies within the core area of the
authorized site. It was purchased by Southwest Entertainment,
Inc., in December 2002 for approximately $1.5 million.
Southwest Entertainment, Inc., has conveyed the property and
the buildings in fee to the Cheyenne and Arapaho Tribes of
Oklahoma. The tribes have expressed an interest in having the
NPS manage the site and the authorizing legislation provides
for substantial tribal input into the management and planning
process. The Dawson Ranch, combined with the existing 920
acres, would be of sufficient size and interest to provide
opportunities for visitors and protect the area of the site
containing the most sensitive and critical historic resources.
Until the site is established, the NPS does not have
authority to enforce federal laws and regulations on any of the
lands within the site boundary, including the 920 acres
currently in NPS ownership. The NPS has surveyed the boundary
and has posted signs, however no public access is permitted.
The NPS has entered into a cooperative agreement with Kiowa
County for wildland fire management and other assistance. We
also have agreements with all four associated tribes to
continue consultation in the development and management of the
site and to provide for reasonable access for commemorative
purposes and traditional cultural and historical observances.
Research is being conducted so that management plans can be
developed as quickly as possible should a national historic
site be formally established. Sand Creek Massacre NHS has
submitted a request to begin a general management plan (GMP).
Until funding is available for the GMP, the Intermountain
Region and park staff will develop an interim operation plan by
the end of this year.
The site currently receives $287,000 for operations in
FY04. If S. 2173 is enacted, NPS would request an additional
amount of $547,000 to operate the site ($104,000 for initial
law enforcement and an additional $442,000 for operations and
FTE). Additional costs may be required for the structures
including four buildings, that would be placed into trust
status under S. 2173. One of the buildings, a ranch house, is
not in good condition and would cost $426,000 for
rehabilitation. Discussions between NPS, the Tribal owners, and
the Northern Cheyenne and the Northern Arapaho Tribes indicate
a strong interest in removing this structure, which would cost
approximately $106,000. Two buildings are sheds that would be
used for storage, and one building is a large garage and ranch
office that NPS and the Tribe could use as a maintenance
building, office or temporary visitor contact station. NPS
would need to make minimal repairs, if any, to these buildings
at this time.
One of the hallmarks of the history of the creation of Sand
Creek Massacre National Historic Site has been the cooperation
and dedication of all interested parties. The tribes,
descendants organizations, the local communities in Kiowa and
other surrounding counties, the State of Colorado and other
Federal agencies have developed excellent relationships and
established lines of communication that have allowed us to be
here in less than 10 years, on the brink of establishing a site
that will tell an important story in this country's history.
We have three important amendments to offer that would
clarify the purposes of the bill and the roles and
responsibilities of the Secretary. The first two amendments are
reflected in the amendment to Section 6, attached at the end of
this testimony. We would like to work with the Committee and
the Tribe to develop the third amendment before the bill moves
forward.
First, we suggest deleting the provision in Section 6(a),
which declares the property to be a part of the Indian
reservation of the Tribe. Declaration of a reservation is an
action that is independent of transfer into trust status and
seems unnecessary for the administration of the trust land as
part of a national historic site.
Second, we are concerned that S. 2173 does not specify what
duties are required of the Secretary. We believe that Congress,
when it mandates land be taken into trust, should specifically
define the expectations of the beneficiary and the obligations
of the Federal government. Both the Executive and the Judicial
Branches, as well as the beneficiary, are faced with the
question of Congress' intent when it puts land into trust
status.
While S. 2173, as introduced, contains a provision
indicating that the trust property shall be administered ``in
accordance with the law generally applicable to property held
in trust by the United States for the benefit of Indian
tribes'', this provision is so potentially broad that it makes
the duties of the Secretary with regard to the land and the
structures that are to be held in trust even less clear. We
suggest an amendment in Section 6 of the bill that would
eliminate this confusing provision. The amendment also would
consolidate existing provisions that require that the Secretary
administer the property in accordance with the law establishing
the national historic site and that the property be used only
for historic, religious, or cultural uses and only if those
uses are compatible with the national historic site. The
amended provision would clarify the scope of the trust
responsibility.
Even with this amendment, guidance in the bill with regard
to the duties of the Secretary is limited, particularly with
respect to the structures taken into trust status. As you know,
the president had made a commitment to addressing the deferred
maintenance backlog in our national parks. Toward this effort,
the NPS has, for the first time ever, developed a comprehensive
system to grade the condition of facilities. With this system,
the NPS can set targets each year to improve facility grades
and achieve an overall acceptable condition for facilities. To
ensure that these management decisions can be made in a timely
manner, we would like to work with the Tribe and the Committee
on a possible amendment to the bill which would convey the
existing buildings in fee title to the Secretary, while placing
the real property into trust status. We also would like to
include a provision that would require the Secretary to consult
with the Tribe concerning the uses of the buildings. Given the
strong interest expressed by both the Tribe and the NPS to
remove the ranch house, the terms of the conveyance would
require further discussion. We would like to work with the
Committee and the Tribe on such an amendment that would be
acceptable to all parties.
We appreciate the committee's interest in this legislation.
That concludes my remarks and I would be happy to respond to
any questions that you may have.
proposed amendments
On page 4, strike lines 11 through 24 and insert,
SEC. 6. ADMINISTRATION AND USE OF TRUST PROPERTY.
``(a) In General.--The trust property shall be administered
in perpetuity by the Secretary only for historic, religious, or
cultural uses and only those uses that are compatible with the
use of land in accordance with the Sand Creek Massacre National
Historic Site Establishment Act of 2000 (16 U.S.C. 461 note;
Public Law 106-465).''.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2173, as ordered reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Public Law 106-465
AN ACT To authorize the Secretary of the Interior to establish the Sand
Creek Massacre National Historic Site in the State of Colorado
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sand Creek Massacre National
Historic Site Establishment Act of 2000''.
* * * * * * *
SEC. 6. ACQUISITION OF PROPERTY.
(a) In General.--The Secretary may acquire land and
interests in land within the boundaries of the site--
(1) through purchase (including purchase with donated
or appropriated funds) only from a willing seller; and
(2) by donation, exchange, or other means, except
that any land or interest in land owned by the State
(including a political subdivision of the State) may be
acquired only by donation or exchange
* * * * * * *