[Senate Report 109-20]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 31
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-20

======================================================================
 
      SAND CREEK MASSACRE NATIONAL HISTORIC SITE TRUST ACT OF 2005

                                _______
                                

                 March 8, 2005.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                          [To accompany S. 57]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 57) to further the purposes of the Sand 
Creek Massacre National Historic Site Establishment Act of 
2000, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                         Purpose of the Measure

    The purpose of S. 57 is to authorize the Secretary of the 
Interior to hold certain lands in Colorado 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.

                          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 about 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. 57 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. 57 was introduced by Senators Allard and Salazar on 
January 24, 2005. During the 108th Congress, the Committee 
considered identical legislation, S. 2173, sponsored by Senator 
Campbell. The Subcommittee on National Parks 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 (S. Rept. 108-323). S. 2173 passed the Senate, as 
amended, by unanimous consent on September 15, 2004. The House 
of Representatives did not consider the bill prior to the sine 
die adjournment of the 108th Congress.
    At its business meeting on February 16, 2005, the Committee 
on Energy and Natural Resources ordered S. 57 favorably 
reported.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on February 16, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass S. 57.

                      Section-by-Section Analysis

    Section 1 entitles the bill the ``Sand Creek Massacre 
National Historic Site Trust Act of 2005.''
    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 governing units 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.

S. 57--Sand Creek Massacre National Historic Site Trust Act of 2005

    S. 57 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 2005-2010 period. Therefore, CBO estimates that 
implementing S. 57 would have no significant effect on the 
federal budget.
    S. 57 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 Deborah Reis. 
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. 57.
    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. 57.

                        Executive Communications

    During the 108th Congress, the Committee considered 
identical legislation (S. 2173). The views of the 
Administration on S. 2173 were included in testimony received 
by the Committee at a hearing on the bill on May 20, 2004, as 
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 you 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 
descendents 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 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 has 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. 57, 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, 106th Congress


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''.

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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.
    (b) Priority for Acquisition.--The Secretary shall give 
priority to the acquisition of land containing the marker in 
existence on the date of enactment of this Act, which states 
``Sand Creek * * *

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