[Senate Report 116-45]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 110
116th Congress     }                                   {       Report
                                 SENATE
 1st Session       }                                   {       116-45

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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

                                _______
                                

                 June 10, 2019.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 832]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which 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

    The purpose of S. 832 is to nullify the Supplemental Treaty 
between the United States and the Confederated Tribes and Bands 
of Indians of Middle Oregon,\1\ which was executed on November 
15, 1865.
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    \1\In 1855, upon execution of the original 1855 Treaty these tribes 
were collectively referred to as the Confederated Tribes and Bands of 
Middle Oregon. In 1937, three Indian tribes, the Warm Springs, Wasco, 
and Paiute organized as the Confederated Tribes of the Warm Springs 
Reservation of Oregon by adopting a constitution and by-laws for tribal 
government under the Indian Reorganization Act.
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                          NEED FOR LEGISLATION

    S. 832 will repeal and nullify the Supplemental 1865 Treaty 
between the United States of America and the Confederated 
Tribes and Bands of Indians of Middle Oregon, thereby leaving 
the 1855 Treaty intact.
    The Constitution grants powers to the President to 
negotiate treaties, which are subject to ratification by the 
Senate.\2\ The Constitutional authority to ratify treaties can 
also grant Congress the authority to abrogate treaties. The 
Supreme Court has held that when abrogating a treaty between 
the United States and an Indian tribe, Congress must do so 
explicitly.\3\
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    \2\Article II, Section 2, Clause 2 of the United States 
Constitution.
    \3\Herrera v. Wyoming, --U.S. --, No. 17-532 (May 20, 2019).
---------------------------------------------------------------------------
    Congress is the only body with constitutional authority to 
nullify the Supplemental 1865 Treaty, ensuring that it does not 
have any legal effect.

                               BACKGROUND

    1855 Treaty. In 1855, the Confederated Tribes of Warm 
Springs Tribe (Tribe) entered into a treaty with the United 
States government that ceded the Tribe's territorial interests 
in exchange for consideration that included a reservation and 
monetary compensation.
    In addition to providing certainty of the Tribe's 
territorial interests, the 1855 treaty also contemplated 
certain off-reservation hunting and fishing rights; 
specifically, the right of the Tribe to fish ``at all other 
usual and accustomed stations, in common with citizens of the 
United States,'' and ``the privilege of hunting . . . on 
unclaimed lands, in common with citizens.''
    Supplemental 1865 Treaty. In 1865, the Superintendent of 
Indian Affairs for Oregon, J.W. Perit Hunting, drafted a 
supplemental treaty to amend the 1855 treaty. During a 
legislative hearing before the Committee on S. 832, Principal 
Deputy Assistant Secretary for Indian Affairs at the Department 
of the Interior, John Tahsuda, testified that the Supplemental 
1865 Treaty provided terms that created ``unreasonable 
restrictions on the rights of the Warm Springs people.''
    The Supplemental 1865 Treaty with the Tribe contained 
provisions that led to the relinquishment of previously 
reserved off-reservation hunting and fishing rights, and 
physically restricted the Tribe to its reservation unless 
written permission was granted by the federal superintendent of 
Indian Affairs for Oregon to travel outside the boundaries of 
the reserve.
    On June 20, 1997, the U.S. Forest Service produced a report 
that concluded, among other things, that the tribal leaders' 
signatures on the Supplemental 1865 Treaty were obtained by 
fraudulent means.
    Actions by the State of Oregon. On January 31, 2019, 
Governor of the State of Oregon, Kate Brown, issued a formal 
policy to the Tribe regarding the Supplemental 1865 Treaty. In 
a letter to the Tribe, Governor Brown wrote to affirm that it 
will be the ``[P]olicy of the office of the Governor . . . to 
regard the 1865 treaty as a nullity with no effect 
whatsoever.'' Governor Brown's letter provided that ``[N]o 
state agency or official under . . . shall assert on behalf of 
the State that the fraudulent Huntington Treaty of 1865 has 
now, or ever has had, any legal effect whatsoever.''

                          LEGISLATIVE HISTORY

    On March 14, 2019, Senator Merkley introduced S. 832 with 
Senator Wyden co-sponsoring. The bill was referred to the 
Committee. On May 01, 2019, the Committee held a legislative 
hearing on the bill. Principal Deputy Assistant Secretary for 
Indian Affairs, John Tahsuda, testified the Department does not 
object to the bill. Councilman Ron Suppah from the Confederated 
Tribes of Warms Springs provided testimony in favor of the 
bill. On May 15, 2019, the Committee held a duly called 
business meeting to consider S. 832. No amendments were 
offered, and the bill was ordered to be reported favorably.
    An identical companion bill, H.R. 1803, was introduced in 
the House of Representatives by Congressman Walden on March 14, 
2019. The bill was referred to the Subcommittee on Indigenous 
Peoples of the United States, and on June 5, 2019 the 
Subcommittee held a legislative hearing on the bill.
    In the 104th Congress, Senator Hatfield introduced an 
identical version of S. 832 on September 20, 1996. The bill was 
placed on the Senate Legislative Calendar, but no further 
action was taken on it.

                 SECTION-BY-SECTION ANALYSIS OF S. 832

Section 1. Nullification of Treaty

    This section directs that the Supplemental Treaty concluded 
on November 15, 1865, and entered into pursuant to the Senate 
resolution of ratification dated March 2, 1867 (14 Stat. 751), 
shall have no force or effect.

                   COST AND BUDGETARY CONSIDERATIONS

Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed 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.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

    S. 832 would nullify a treaty between the United States and 
the Confederated Tribes of Warm Springs, a federally recognized 
Indian tribe in the state of Oregon that was signed in 1865. 
According to the Department of the Interior the treaty has 
never been enforced. Based on that information, CBO estimates 
that enacting S. 832 would have no effect on the federal 
budget.




    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 832.

               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 S. 832 will 
have a minimal impact on regulatory or paperwork requirements.

                        CHANGES IN EXISTING LAW

    On February 6, 2019, the Committee unanimously approved a 
motion to waive subsection 12 of rule XXVI of the Standing 
Rules of the Senate. 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]