[House Report 115-513]
[From the U.S. Government Publishing Office]


115th Congress }                                           { Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                           { 115-513

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

 
          POARCH BAND OF CREEK INDIANS LAND REAFFIRMATION ACT

                                _______
                                

January 11, 2018.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 1532]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1532) to reaffirm that certain land has been 
taken into trust for the benefit of the Poarch Band of Creek 
Indians, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 1532 is to reaffirm that certain land 
has been taken into trust for the benefit of the Poarch Band of 
Creek Indians.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 1532 would ``reaffirm'' and ``ratify'' the trust 
status of approximately 390 acres of land the Secretary of the 
Interior acquired in trust for benefit of the Poarch Band of 
Creek Indians of Alabama. The Tribe currently operates casinos 
regulated pursuant to the Indian Gaming Regulatory Act (25 
U.S.C. 2701 et seq.) on a portion of the lands under 
consideration, along with a health clinic, an assisted living 
facility and other facilities.
    The Poarch Band of Creek Indians is located approximately 
56 miles north of Mobile, Alabama. The Poarch Band is a segment 
of the original Creek Nation which covered areas of Alabama and 
Georgia. After the conclusion of the War of 1812, the Creeks 
who supported the United States subsequently signed the Treaty 
of Fort Jackson which resulted in the ceding of land in 
Alabama. In 1836, many Creeks were removed from Alabama to the 
Oklahoma territory. Some Creek Indians remained around the town 
of Poarch, remaining a cohesive tribal group.
    After fighting for decades to be recognized as a distinct 
tribe, the Poarch Band was administratively recognized by the 
Bureau of Indian Affairs on August 11, 1984. After obtaining 
federal recognition, the Tribe acquired lands in both Alabama 
and Florida, and these lands were then placed in trust by the 
Secretary of the Interior under the authority of section 5 of 
the Indian Reorganization Act (IRA, 25 U.S.C. 5108), which 
gives the Secretary exceptionally broad power to acquire lands 
in trust for Indians. Land held in trust for Indians is 
generally immune from State and local jurisdiction and 
taxation, and depending on the location of the land and the 
date it was put in trust, a Tribe may be able to operate a 
casino on it pursuant to the Indian Gaming Regulatory Act. 
Accordingly, the Poarch Creeks own and operate two Indian 
casinos and maintain several facilities for the use of its 
members on its trust lands.
    The need for H.R. 1532 arises because the lawfulness of 
lands acquired in trust by the Secretary pursuant to the IRA 
for the benefit of tribes recognized after 1934 (i.e., the date 
of enactment of the IRA) is in question because of the U.S. 
Supreme Court decision in Carcieri v. Salazar (555 U.S. 379 
(2009)). The Poarch Band is one such tribe.
    Until Carcieri, the Secretary used the IRA as the basis for 
placing land in trust for tribes recognized at any time. 
However, the Supreme Court determined that trust land 
provisions of the IRA may be used only for the benefit of 
tribes ``under federal jurisdiction'' as of the date of 
enactment of the IRA. Since 2009, the Department of the 
Interior (DOI) has failed to divulge to the Committee the names 
of tribes that were or were not under federal jurisdiction in 
1934 despite repeated requests for this information from 
Republican leaders of the Committee. Moreover, a controversial 
``M-Opinion'' interpreting the meaning of ``under federal 
jurisdiction'' was issued by President Obama's DOI Solicitor to 
provide legal backing to the continued acquisition of lands for 
tribes recognized after 1934. Thus, rather than work with the 
Committee to find a resolution to Carcieri, the Obama 
Administration increased the potential for litigation over the 
trust status of untold acres of lands owned by tribes.
    The Committee has held several oversight and legislative 
hearings to address Carcieri and to explore potential reforms 
to improve the land-in-trust process administered by DOI. It is 
important to note that the trust acquisition authority in 
section 5 of the IRA has never been substantively amended since 
the IRA was enacted in 1934.
    One of the oversight hearings held on Carcieri and the IRA 
includes a 2015 hearing in which the Poarch Band of Creek 
Indians testified as to its situation.\1\ According to the 
Tribe, many of its lands were placed in trust prior to 2009 
pursuant to the IRA, and these trust lands have been developed 
with the construction of buildings and businesses, including 
casinos. If a court were to decide these lands are not lawfully 
held in trust on the grounds the Poarch Band was recognized 
after 1934, the lands could lose their trust status, exposing 
the Tribe to State taxation and civil regulation, which in turn 
could lead to the closure of tribal businesses and the 
dismantling of facilities. In addition, the Tribe's casinos 
would become subject to Alabama State law, which could lead to 
the modification or closure of the gambling facilities, which 
employ large numbers of people and generate revenues for the 
Tribe's government.
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    \1\Oversight Hearing House Subcommittee on Indian, Insular and 
Alaska Native Affairs. Inadequate Standards for Trust Land Acquisition 
in the Indian Reorganization Act of 1934. May 14, 2015.
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    Like other post-1934 tribes, passing a ``clean Carcieri 
fix'' (a reversal of the Supreme Court opinion) is a high 
priority of the Poarch Creeks. On the other hand, there are 
various governments, government organizations (including 
certain tribes), private landowners, and citizen activists who 
oppose a ``clean Carcieri fix'' unless limits are placed on the 
power of the Secretary to acquire title to land, limits that 
reflect a reasonable balancing of interests of all affected by 
a trust acquisition. As explained by the chief legal officers 
of several states:

          Each exercise of the Secretary's authority to take 
        land into trust has substantial impact on state and 
        local communities. . . .
          The Carcieri decision is only one highly visible 
        example of the larger frustration many states feel with 
        the existing regulatory process for taking land into 
        trust. The current process does not provide for 
        meaningful analysis or weighing of the input of states 
        and local units of government and is void of binding 
        limits on the discretion of the Secretary.\2\
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    \2\Letter to the Chairmen and Vice Chairman and Ranking Member of 
the Senate Committee on Indian Affairs and the House Natural Resources 
Committee from the Attorneys General of Alaska, Colorado, Connecticut, 
Florida, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Mississippi, 
Ohio, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, and 
Utah, dated April 24, 2009.

    Until a bill to resolve Carcieri is enacted, certain tribes 
may seek to have the trust status of their existing lands 
legislatively ratified, especially those lands acquired prior 
to 2009. Accordingly, H.R. 1532 ratifies the trust status of 
certain lands held by the United States for the Poarch Band. 
The approximately 390 acres of land identified in H.R. 1532 
were acquired in trust prior to the Carcieri decision in 2009, 
and are located in Alabama, while a one-acre parcel is located 
in Escambia County, Florida. The Committee has received no 
correspondence from the Alabama or Florida Congressional 
delegations or other elected officials from the affected areas 
in Alabama and Florida in opposition to the ratification of 
trust lands identified in H.R. 1532.
    It is important to note that the State of Alabama was one 
of 21 States to submit a friend-of-the-court brief to the 
Supreme Court in support of the petition filed by Rhode Island 
in the Carcieri lawsuit. These States generally argued that the 
Secretary lacked power under the IRA to acquire land in trust 
for tribes recognized after 1934. The position of these States, 
including Alabama, does not necessarily indicate opposition to 
or concern with H.R. 1532.
    It is also important to note that the Muscogee (Creek) 
Nation of Oklahoma has testified before the Natural Resources 
Committee as to concerns with a parcel of land taken in trust 
for the Poarch Band and subsequently developed by the Tribe for 
a gambling facility.\3\ The Muscogee (Creek) Nation has argued 
that such lands known as Hickory Ground are a sacred site 
containing (or formerly containing until their removal) the 
remains of Creek ancestors. Members of the Committee, however, 
have not indicated an interest in using H.R. 1532 as a vehicle 
to resolve this controversy between the two tribes.
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    \3\https://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=398481
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                SECTION-BY-SECTION ANALYSIS OF THE BILL

    Section 1. Short title. This section provides the short 
title of the bill, the Poarch Band of Creek Indians Land 
Reaffirmation Act.
    Section 2. Reaffirmation of Indian trust land. Subsection 
(a) provides that lands described in subsection (b) are 
confirmed to be held in trust and remain as Indian Country (the 
term ``Indian Country'' denotes lands over which the federal 
government or a tribe exercise certain federal civil and 
criminal jurisdiction). Subsection (b) provides acreage and 
legal descriptions for the lands to be reaffirmed as trust land 
for the Poarch Band, totaling 390 acres. Subsection (c) 
provides that this Act shall supersede any claims against the 
trust status of the 390 acres of land described under 
subsection (b).

                            COMMITTEE ACTION

    H.R. 1532 was introduced on March 15, 2017, by Congressman 
Bradley Byrne (R-AL). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Indian, Insular and Alaska Native Affairs. On November 7, 
2017, the Natural Resources Committee met to consider the bill. 
The Subcommittee was discharged by unanimous consent. No 
amendments were offered and the bill was ordered favorably 
reported to the House of Representatives by unanimous consent 
on November 8, 2017.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, January 10, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1532, the Poarch 
Band of Creek Indians Land Reaffirmation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1532--Poarch Band of Creek Indians Land Reaffirmation Act

    H.R. 1532 would reaffirm the status of lands taken into 
trust by the Department of the Interior for the benefit of the 
Poarch Band of Creek Indians. The legislation also would 
prohibit any lawsuits related to the trust land. CBO estimates 
that implementing the legislation would have no significant 
effect on the federal budget and would not significantly 
increase the cost of managing tribal trust lands.
    Enacting H.R. 1532 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 1532 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1532 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to reaffirm that certain land has 
been taken into trust for the benefit of the Poarch band of 
Creek Indians.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                       COMPLIANCE WITH H. RES. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.