[Senate Report 115-399]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 699
115th Congress         }                      {               Report
                                 SENATE
 2d Session            }                      {               115-399

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



 
   GILA RIVER INDIAN COMMUNITY FEDERAL RIGHTS-OF-WAY, EASEMENTS AND 
                       BOUNDARY CLARIFICATION ACT

                                _______
                                

               November 29, 2018.--Ordered to be printed

                                _______
                                

           Mr. Hoeven, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4032]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill, H.R. 4032, to confirm undocumented Federal rights-of-way 
or easements on the Gila River Indian Reservation, clarify the 
northern boundary of the Gila River Indian Community's 
Reservation, to take certain land located in Maricopa County 
and Pinal County, Arizona, into trust for the benefit of the 
Gila River Indian Community, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends the bill do pass.

                                PURPOSE

    The purpose of H.R. 4032 is to confirm undocumented federal 
rights-of-way or easements on the Gila River Indian 
Reservation, clarify the reservation's northern boundary, and 
take certain land located in Maricopa County and Pinal County, 
Arizona into trust for the benefit of the Gila River Indian 
Community (``Tribe'').

                               BACKGROUND

    The Gila River Indian Reservation was established on 
February 28, 1859, for the Pima and Maricopa Tribes which 
confederated into what is known today as the Gila River Indian 
Community.\1\ The reservation was later expanded by several 
executive orders between 1876 and 1915 in Maricopa and Pinal 
counties, Arizona. President Rutherford B. Hayes signed one of 
these Executive Orders on June 14, 1879, which established the 
northwesterly corner of the reservation, and expanded the 
northern boundary of the Tribe's reservation to the middle of 
the Salt River.\2\
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    \1\See 11 Stat. 401, Chap. 66.
    \2\See President R. B. Hayes. Executive Order, 1 Kapp. 806, 807 
(June 14, 1879).
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    According to the Tribe, the new northwestern boundary was 
not immediately surveyed after President Hayes' Executive Order 
was issued. In 1895, the northern boundary of the reservation 
was surveyed, but rejected by the U.S. General Land Office; the 
northern boundary had been marked at the left bank of the Salt 
River, rather than the ``middle of the . . . Salt River,'' as 
called for in the Executive Order.\3\
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    \3\See Letter 529901 ``E''. U.S. Surveyor General, General Land 
Office, U.S. Department of the Interior. July 29, 1919.
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    Between 1910 and 1920 there were attempts to properly 
survey the boundary, but these efforts were complicated by the 
disposal of land immediately adjacent to the reservation. In 
its 1919 letter, the General Land Office explained that the 
encroachment upon the Tribe's land resulted from the failure to 
timely survey the reservation's boundaries in the wake of the 
Executive Order.\4\
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    \4\Id.
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    The Tribe maintained that the final survey inaccurately 
established the mid-point of the Salt River, but failed to 
consider the northerly accretion of the River. The Tribe 
further alleged that the City of Phoenix inaccurately relied on 
an erroneous northern boundary to its reservation; by accepting 
the erroneous and fixed boundary, and by issuing patents for 
land based an inaccurate survey, the United States transferred 
the Tribe's reservation lands to non-Indians, in violation of 
the law, including, but not limited to, the Non-Intercourse 
Act.\5\ Thus, the Tribe believed that, because of surveying 
errors, and the further northward movement of the Salt River 
since that time, the Tribe lost land on the northern portion of 
its reservation which has since contributed to boundary 
disputes.\6\
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    \5\25 U.S.C. Sec. 177
    \6\For example, surveying errors by the United States led to the 
City of Phoenix's construction of a wastewater treatment plant which is 
currently discharging effluent, and the materials contained within such 
effluent, onto land rightfully granted to, and owned by, the Community. 
Moreover, the City of Phoenix is causing twice-treated effluent to 
enter the Reservation through recharge of the aquifer underlying the 
Community's northern boundary.
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    In 2006, the Tribe brought a complaint against the United 
States seeking an accounting and reconciliation of its trust 
fund accounts, and non-monetary trust assets or resources. The 
Tribe asserted claims for monetary damages relating to the 
United States' mismanagement of the Tribe's trust funds, and 
non-monetary trust assets or resources. The claims included 
breach of trust claims against the United States for failing to 
document rights-of-way across the reservation, collect rent, 
and account for the Tribe's and individual allottees' trust 
assets. Additionally, the claims included a breach of the 
United States' fiduciary duty for its failure to accurately 
survey the reservation's northwesterly boundary, resulting in 
illegal patenting of lands to non-Indians (i.e. the ``Tres Rios 
boundary dispute'').
    The United States entered into a settlement with the 
Tribe.\7\ As part of the settlement negotiations, the Tribe 
agreed to waive its claims related to the Tres Rios boundary 
dispute. In exchange, the federal government agreed to pay 
$12.5 million to the Tribe, and to transfer approximately 3,400 
acres of land owned by the Bureau of Land Management to the 
Tribe. The Tribe, and the United States, filed the fully 
executed Joint Stipulation of Settlement with the U.S. District 
Court for the District of Columbia on June 22, 2016. On March 
20, 2017, the Tribe and the United States filed a joint 
stipulation to dismiss the Gila River trust case with 
prejudice.
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    \7\See Gila River Indian Community v. Jewell, Civil Action No. 05-
02249 (D.C. Cir. 2006).
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                                SUMMARY

    The bill, H.R. 4032, reflects the terms of the settlement. 
The bill establishes the northwest boundary of the reservation, 
and settles the Tres Rios boundary dispute. The legislation 
includes a mandatory trust acquisition of 3,400 acres of 
federal land for the Tribe as part of the boundary dispute 
settlement. Lastly, the bill provides for surveys and the 
creation of a map of the federal rights-of-way on the 
Reservation.

                          LEGISLATIVE HISTORY

    The bill, H.R. 4032, was introduced on October 12, 2017, by 
Congressman O'Halleran and referred to the Committee on Natural 
Resources of the House of Representatives, Subcommittee on 
Indian, Insular, and Alaska Native Affairs. On February 6, 
2018, the Subcommittee on Indian, Insular, and Alaska Native 
Affairs held a legislative hearing on the bill. At that time, 
the Gila River Indian Community Governor Stephen Lewis 
testified in support of the bill. On May 8, 2018, H.R. 4032 was 
considered by the Committee on Natural Resources of the House 
of Representatives. At that time, Congressman Grijalva 
introduced Amendment No. 086, which made technical changes to 
the legislation, and was adopted by unanimous consent. On July 
17, 2018, H.R. 4032 passed the House of Representatives under 
suspension of the rules, and on July 18, 2018, H.R. 4032 was 
received in the Senate and referred to the Committee on Indian 
Affairs.
    The Committee held a legislative hearing on November 14, 
2018 at which it received testimony on H.R. 4032. Gila River 
Indian Community Councilman Barney B. Enos, Jr. testified in 
support of H.R. 4032, noting that the bill was critical ``to 
enable the Community to obtain the full benefits of the 
settlement the Community reached with the United States 
resolving federal litigation that originated in 2006.'' The 
Committee also received testimony from Darryl LaCounte, Acting 
Director for the Bureau of Indian Affairs, in support of the 
bill. On November 28, 2018 the Committee held a business 
meeting, and reported H.R. 4032 favorably without amendment.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This Act may be cited as the Gila River Indian Community 
Federal-Rights-of-Way, Easements and Boundary Clarification 
Act.

Section 2. Purposes

    Section 2 declares the intent of the Act is to codify the 
negotiated trust accounting and mismanagement settlement.

Section 3. Definitions

    This section defines terms used in the Act.

Section 4. Land into trust for benefit of the community

    Subsection (a) provides that, after a request by the Tribe, 
the Secretary of the Interior will take the Lower Sonoran Lands 
into trust for the benefit of the Tribe.
    Subsection (b) provides that the map of the lands taken 
into trust must be on file and made publicly available no later 
than 180 days after enactment of the Act.
    Subsection (c) provides that the Lower Sonoran Lands are to 
be part of the reservation once they are taken into trust.
    Subsection (d) states that Class II and III gaming under 
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall 
not be allowed at any time on the land taken into trust for the 
Community under subsection (a)..
    Subsection (e) requires the Secretary of the Interior to 
publish the full metes-and-bounds description of the Lower 
Sonoran Lands no later than 180 days after the enactment of 
this Act.

Section 5. Establishment of fixed northern boundary

    Subsection (a) provides that the northern boundary of the 
Gila River Indian Community Reservation, created by the 1879 
Executive Order, is modified to be fixed, permanent, and not 
ambulatory.
    Subsection (b) provides that the portion of the reservation 
boundary created by the Executive Order (along the middle of 
the Salt River) is modified to be a fixed and permanent 
boundary.
    Subsection (c) provides that, subject to available 
appropriations, the Secretary of the Interior will ensure that 
the new reservation boundary, as described in subsection (b), 
is surveyed and clearly marked.
    Subsection (d) provides that the Reservation boundary, 
resurveyed pursuant to the Act, shall become the northern 
boundary of the Reservation, and no other portion of the 
reservation boundary will be affected by this Act except as 
specifically set forth in the Act.
    Subsection (e) provides that the Secretary shall publish in 
the Federal Register the modification and the resurvey of the 
reservation boundary as set forth in subsections (b) and (c), 
which shall constitute the fixed northern boundary of the 
Reservation.

Section 6. Satisfaction and substitution of claims

    This section provides that the negotiated settlement and 
the benefits received by the Tribe, pursuant to this Act, shall 
be in complete replacement of, substitution for, and full 
satisfaction of, all claims that the Tribe, its members, and 
allottees may have had against the United States.
    The bill becomes effective on the later of the date on 
which the Secretary publishes the Federal Register notice 
required under section 4(e), publishes in the Federal Register 
the notice required under section 5(e), and completes the 
surveys for the Federal rights-of-way required by the language 
of the bill.

Section 7. Federal rights-of-way

    Subsection (a) provides that all the rights-of-way depicted 
in the ROW, Easements, and Federal and Tribal Facilities Map 
accompanying this Act are established, ratified, and confirmed.
    Subsection (b) provides for the location of recordation of 
all rights-of-way established, ratified, and confirmed in 
Subsection (a).
    Subsection (c) provides that the Federal Government shall 
be considered the grantee or applicant for any and all rights-
of-way established pursuant to this Act.
    Subsection (d) provides that either at the request of the 
tribe, or pursuant to 25 C.F.R. Sec.  404-409, any rights-of-
way established by this Act may be cancelled. Requests for 
cancellation shall be documented by a tribal resolution.
    Subsection (e) provides that the granting of any rights-of-
way or easement, other than those depicted in the ROW, 
Easements, and Federal and Tribal Facilities Map accompanying 
this Act, may only be done in accordance with all applicable 
laws and regulations.

Section 8. Survey

    Subsection (a) provides that the Bureau of Indian Affairs 
(BIA) shall undertake and complete a survey of each of the 
federal rights-of-way established under this Act no later than 
six years after enactment.
    Subsection (b) provides that the BIA is authorized, subject 
to available appropriations, to contract for the survey of all 
federal rights-of-way established pursuant to this Act to the 
Tribe or a third party.
    Subsection (c) provides that upon completion of all surveys 
authorized and undertaken, the Tribe and the Bureau of Indian 
Affairs can determine if any anomalies exist with respect to 
certain federal rights-of-way, and can choose to remove that 
anomaly from the ROW, Easements, and Federal Tribal Facilities 
Map.

Section 9. Hunt highway

    This section clarifies that nothing in this Act shall 
impact any right-of-way or easement associated with Hunt 
Highway in Pinal County, Arizona, including the portion that 
traverses the reservation.

                   COST AND BUDGETARY CONSIDERATIONS

    On June 22, 2018, the Congressional Budget Office (CBO) 
prepared a cost estimate for H.R. 4032, as considered by the 
Committee on Natural Resources of the House of Representatives. 
The bill was not amended during consideration by the Senate 
Committee on Indian Affairs, so that there should be no changes 
to affect the cost estimate. The subsequent cost estimate can 
be published in the Congressional Record. The Chairman of the 
Committee on Natural Resources of the House of Representatives 
received the following letter, and cost estimate, for H.R. 4032 
from the Director of the CBO.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 22, 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 revised cost estimate for H.R. 4032, the 
Gila River Indian Community Federal Rights-of-Way, Easements 
and Boundary Clarification 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. 4032--Gila River Indian Community Federal Rights-of-Way, Easements 
        and Boundary Clarification Act

    H.R. 4032 would direct the Department of the Interior (DOI) 
to take about 3,400 acres of land into trust for the benefit of 
the Gila River Indian Community. The bill also would establish 
a permanent northern boundary for the tribe's reservation and 
would establish and ratify three rights-of-way and one grazing 
permit on that land. DOI would be required to survey the new 
tribal boundary and the rights-of-way and publish those 
surveys. Using information from DOI, CBO estimates that the 
administrative expenses associated with those activities would 
not be significant.
    The land that could be taken into trust under the bill is 
currently managed by DOI and yields no financial benefits to 
the federal government. DOI is in the process of transferring 
that land to the Gila River Indian Community through a 
noncompetitive, direct land sale. H.R. 4032 specifies that once 
the sale of the land is finalized DOI shall, at the request of 
the tribe, take the land into trust for the benefit of the 
tribe.
    Enacting H.R. 4032 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 4032 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 4032 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    This cost estimate for the Gila River Indian Community 
Federal Rights-of-Way, Easements and Boundary Clarification Act 
supersedes the estimate transmitted on June 12, 2018, for the 
same bill. CBO's earlier estimate was based incorrect 
information indicating that the sale would not proceed under 
the bill and title to the land would be transferred to the 
tribe for no consideration. This revised cost estimate corrects 
that error.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

               REGULATORY AND PAPERWORK 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. The Committee believes that H.R. 4032 
will have minimal impact on regulatory or paperwork 
requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding H.R. 4032.

                        CHANGES IN EXISTING LAW

    In accordance with Committee rules, subsection 12 of rule 
XXVI of the Standing Rules of the Senate is waived. In the 
opinion of the Committee, it is necessary to dispense with 
subsection 12 of rule XXVI of the Standing Rules of the Senate 
to expedite the business of the Senate.

                                  [all]