[House Report 116-441]
[From the U.S. Government Publishing Office]


116th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {      116-441

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

 
TO NULLIFY THE SUPPLEMENTAL TREATY BETWEEN THE UNITED STATES OF AMERICA 
  AND THE CONFEDERATED TRIBES AND BANDS OF INDIANS OF MIDDLE OREGON, 
                     CONCLUDED ON NOVEMBER 15, 1865

                                _______
                                

  July 9, 2020.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Grijalva, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 832]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (S. 832) to nullify the Supplemental Treaty Between 
the United States of America and the Confederated Tribes and 
Bands of Indians of Middle Oregon, concluded on November 15, 
1865, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of S. 832 is to nullify the Supplemental Treaty 
Between the United States of America and the Confederated 
Tribes and Bands of Indians of Middle Oregon, concluded on 
November 15, 1865.

                 BACKGROUND AND NEED FOR LEGISLATION\1\
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    \1\Also see generally S. Rep. No. 116-45, at 1-2 (2019), https://
www.congress.gov/116/crpt/srpt45/CRPT-116srpt45.pdf and Hearing on H.R. 
733, H.R. 1031, H.R. 1803, and H.R. 2961 Before the Subcomm. for 
Indigenous Peoples of the U.S. of the H. Comm. on Nat. Res., 116th 
Cong. (2019) (not printed) (written testimony of Ron Suppah, former 
Tribal Council Member, Confederated Tribes of Warm Springs), https://
docs.house.gov/meetings/II/II24/20190605/109569/HHRG-116-II24-Wstate-
SuppahR-20190605.pdf, of which the above text is largely excerpts.
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    S. 832 nullifies the supplemental treaty of 1865 between 
the United States of America and the Confederated Tribes and 
Bands of Indians of Middle Oregon.
    The Warm Springs Confederated Tribes signed a treaty with 
the United States on June 25, 1855, under which the Tribes 
relinquished approximately ten million acres of land but kept 
the Warm Springs Reservation for their exclusive use as well as 
certain off-reservation fishing, hunting, and gathering 
rights.\2\ The off-reservation rights reserved in the 1855 
treaty are nearly identical to the off-reservation rights 
reserved in ten other treaties negotiated with tribes in Oregon 
and Washington territories in 1854 and 1855. Those off-
reservation treaty rights have been the subject of continuous 
federal court litigation for more than a century.\3\
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    \2\12 Stat. 963, available at https://www.fws.gov/pacific/ea/
tribal/treaties/Tribes_Mid_or.pdf.
    \3\See, e.g., Washington v. Washington State Passenger Fishing 
Vessel Association, 443 U.S. 658, 661-62 & n.2, 684-85 (1979), 
available at https://tile.loc.gov/storage-services/service/ll/usrep/
usrep443/usrep443658/usrep443658.pdf.
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    After the treaty signing, the Tribes maintained their 
accustomed practice of traveling regularly to the Columbia 
River to harvest salmon. The continued presence of Indian 
people fishing along the Columbia at their usual and accustomed 
fishing sites, however, irritated non-Indian ``settlers'' and 
prompted the Superintendent of Indian Affairs for Oregon to 
pursue efforts to keep the Tribes away from the non-Indians. 
Ten years later, in 1865, a small number of Warm Springs 
members were fraudulently induced into signing a 
``supplemental'' treaty that purportedly relinquished the 1855 
treaty's off-reservation rights and prohibited Warm Springs 
members from leaving the reservation without a written 
``permit'' issued by the federal superintendent or agent-in-
charge.\4\
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    \4\14 Stat. 751, available at https://www.fws.gov/pacific/ea/
tribal/treaties/Middle_OR_Tribes1865.pdf; see also Act of June 30, 
1964, ch. 181, 13 Stat. 324 (1864), available at https://www.loc.gov/
law/help/statutes-at-large/38th-congress/session-1/c38s1ch181.pdf 
(authorizing the President to negotiate with the Confederated Tribes of 
Middle Oregon ``for the relinquishment of certain rights guaranteed'' 
by the 1855 Treaty).
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    The Indians of the Warm Springs Reservation neither 
complied with the 1865 treaty nor understood its provisions. 
Affidavits taken by the U.S. Department of Justice from Warm 
Springs Indians present at both the 1855 and 1865 treaty 
signings show they understood the later treaty simply to 
provide a pass system for Indians leaving the reservation to 
exercise their off-reservation rights. Additionally, the United 
States, the other party to the 1865 treaty, has consistently 
ignored the 1865 agreement and has on numerous occasions over 
the past 154 years enacted legislation affirming the Tribes' 
1855 off-reservation treaty rights.\5\ It appears that no 
federal government agency has ever asserted that the 1865 
treaty was enforceable or had any legal effect.
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    \5\E.g., 102 Stat. 2944, 1988 Columbia River Treaty Fishing In Lieu 
and Access Sites legislation; 123 Stat. 991, Sect. 1207, 2009 
Wilderness Area Expansion Mount Hood National Forest.
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    S. 832 corrects a wrong by nullifying and rejecting the 
fraudulent 1865 treaty.

                            COMMITTEE ACTION

    S. 832 was introduced on March 14, 2019, by Senator Jeff 
Merkley (D-OR). On the same date, Representative Greg Walden 
(R-OR) introduced H.R. 1803, an identical companion bill. H.R. 
1803 was referred solely to the Committee on Natural Resources, 
and within the Committee to the Subcommittee for Indigenous 
Peoples of the United States. On June 5, 2019, the Subcommittee 
held a hearing on the House bill.
    S. 832 was referred solely to the Senate Committee on 
Indian Affairs. On May 1, 2019, the Senate Committee held a 
hearing on the bill. On May 15, 2019, the Senate Committee met 
to consider the bill and ordered it, without amendments, to be 
reported favorably to the Senate. The Senate Committee reported 
the bill to the Senate on June 10, 2019. The Senate passed the 
bill, without amendment, by voice vote on June 27, 2019.
    S. 832 was received in the House on June 28, 2019, and was 
referred solely to the Committee on Natural Resources, and 
within the Committee to the Subcommittee for Indigenous Peoples 
of the United States. On February 12, 2020, the Natural 
Resources Committee met to consider the bill. The Subcommittee 
was discharged by unanimous consent. No amendments were 
offered, and the bill was adopted and ordered favorably 
reported to the House of Representatives by unanimous consent.

                                HEARINGS

    For the purposes of section 103(i) of H. Res. 6 of the 
116th Congress--the following hearing was used to develop or 
consider S. 832: legislative hearing by the Subcommittee for 
Indigenous Peoples of the United States held on June 5, 2019.

            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:

              [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    S. 832 would nullify an 1865 treaty between the United 
States and the Confederated Tribes of Warm Springs, a federally 
recognized Indian tribe in Oregon. According to the Department 
of the Interior the treaty has never been enforced. On that 
basis, CBO estimates that enacting S. 832 would have no effect 
on the federal budget.
    On May 30, 2019, CBO transmitted a cost estimate for S. 
832, a bill to nullify the Supplemental Treaty Between the 
United States of America and the Confederated Tribes and Bands 
of Indians of Middle Oregon, concluded on November 15, 1865, as 
ordered reported by the Senate Committee on Indian Affairs on 
May 15, 2019. The two versions of the legislation are similar, 
and CBO's estimates of their budgetary effects are the same.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Director 
of Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goals and 
objectives of this bill are to nullify the Supplemental Treaty 
Between the United States of America and the Confederated 
Tribes and Bands of Indians of Middle Oregon, concluded on 
November 15, 1865.

                           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.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    This bill contains no unfunded mandates.

                           EXISTING PROGRAMS

    This bill does not establish or reauthorize a program of 
the federal government known to be duplicative of another 
program.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's 
purposes and text and the Supremacy Clause of Article VI of the 
U.S. Constitution.

                        CHANGES IN EXISTING LAW

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

        SUPPLEMENTAL, MINORITY, ADDITIONAL, OR DISSENTING VIEWS

    None.

                                  [all]