[House Report 117-598]
[From the U.S. Government Publishing Office]


117th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                       {     117-598

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



 
TO REAFFIRM THAT CERTAIN LAND HAS BEEN TAKEN INTO TRUST FOR THE BENEFIT 
          OF THE SAMISH INDIAN NATION, AND FOR OTHER PURPOSES

                                _______
                                

December 7, 2022.--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

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6181]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 6181) to reaffirm that certain land has been 
taken into trust for the benefit of the Samish Indian Nation, 
and for other purposes, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
as amended do pass.
    The amendments are as follows:
  Strike all after the enacting clause and insert the following 
new text:

SEC. 1. REAFFIRMATION OF LAW.

  The applicability of the Act of June 18, 1934 (25 U.S.C. 5101 et 
seq.; 48 Stat. 984, chapter 576) (commonly known as the ``Indian 
Reorganization Act'') is reaffirmed for the Samish Indian Nation.

SEC. 2. NO IMPACT ON TREATY RIGHTS.

  Nothing in this Act shall be interpreted as affecting treaty rights 
under the Treaty of Point Elliott.
    Amend the title so as to read: A bill to reaffirm the 
applicability of the Act of June 18, 1934, to the Samish Indian 
Nation, and for other purposes.

                          PURPOSE OF THE BILL

    The purpose of H.R. 6181 is to reaffirm the applicability 
of the Act of June 18, 1934, to the Samish Indian Nation.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Samish Indian Nation, now located in Washington, was 
forced from its ancestral homelands to reservations designated 
in the Treaty of Point Elliott signed in 1855. In addition to 
losing its original land base, the Nation also lost its federal 
recognition status in 1969, when the Bureau of Indian Affairs 
(BIA) made a clerical error and started treating the Nation as 
unrecognized--even though no formal determination had been 
made.
    After lengthy litigation, the Nation regained its federal 
recognition status in 1996 and began restoring its land base 
through the federal fee to trust process administered by the 
Department of the Interior. However, the ability for the Nation 
to acquire further lands was hampered by the U.S. Supreme 
Court's 2009 Carcieri v. Salazar decision,\1\ which held that 
the Secretary's authority to place land into trust under the 
Indian Reorganization Act applies only to tribal nations that 
were under federal jurisdiction in 1934.
---------------------------------------------------------------------------
    \1\555 U.S. 379.
---------------------------------------------------------------------------
    In November 2018, the Department of the Interior approved 
the Nation's application to take 6.70 acres of undeveloped land 
at Campbell Lake South in Skagit County. This decision was the 
result of the BIA's nine-year review of the Nation's 
application and a corresponding Carcieri analysis. Soon after, 
however, the BIA determination became subject to litigation 
under claims that it conflicted with the Carcieri ruling.
    In order to finalize this transfer of land and to prevent 
similar issues in the Nation's future fee to trust applications 
with the Department, H.R. 6181 would reaffirm the applicability 
of the Indian Reorganization Act to the Nation at large.

                            COMMITTEE ACTION

    H.R. 6181 was introduced on December 8, 2021, by 
Representative Ruben Gallego (D-AZ). The bill was referred 
solely to the Committee on Natural Resources, and within the 
Committee to the Subcommittee for Indigenous Peoples of the 
United States. On April 27, 2022, the Subcommittee held a 
hearing on the bill. On June 15, 2022, the Natural Resources 
Committee met to consider the bill. The Subcommittee was 
discharged by unanimous consent. Rep. Gallego offered an 
amendment in the nature of a substitute. The amendment in the 
nature of a substitute was agreed to by voice vote. The bill, 
as amended, was adopted and ordered favorably reported to the 
House of Representatives by a roll call vote of 24 yeas and 18 
nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                HEARINGS

    For the purposes of clause 3(c)(6) of House rule XIII, the 
following hearing was used to develop or consider this measure: 
hearing by the Subcommittee for Indigenous Peoples of the 
United States held on April 27, 2022.

            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, as well as clause 3(d) of rule XIII of the Rules of the 
House of Representatives, 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, September 9, 2022.
Hon. Raul M. Grijalva,
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. 6181, a bill to 
reaffirm that certain land has been taken into trust for the 
benefit of the Samish Indian Nation, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    H.R 6181 would affirm the status of approximately seven 
acres of land in the State of Washington that the Samish Indian 
Nation sought to place into trust with the Department of the 
Interior (DOI) in 2018; that transfer has not been finalized 
because of an administrative appeal filed by the Swinomish 
Tribe. Using information provided by the Bureau of Indian 
Affairs, CBO estimates that the administrative costs to 
implement H.R. 6181 would not be significant; any spending 
would be subject to the availability of appropriated funds.
    The bill would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA), by 
prohibiting state and local governments from taxing land taken 
into trust for the Samish Indian Nation. Information reported 
to DOI about taxes associated with the land indicates that 
those foregone revenues would total less than $1,000 annually, 
which is far below the annual threshold established in UMRA 
($92 million in 2022, adjusted annually for inflation).
    The bill contains no private-sector mandates as defined in 
UMRA.
    The CBO staff contacts for this estimate are Jon Sperl (for 
federal costs) and Rachel Austin (for mandates). 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 reaffirm the applicability of 
the Act of June 18, 1934, to the Samish Indian Nation.

                           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

    According to CBO, the bill would impose an 
intergovernmental mandate as defined in the Unfunded Mandates 
Reform Act (UMRA) ``far below the annual threshold established 
in UMRA.'' CBO's full analysis is reproduced above.

                           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.

                            DISSENTING VIEWS

    I strongly oppose H.R. 6181, the Samish Indian Nation Land 
Reaffirmation Act, as ordered reported by the Committee on 
Natural Resources.
    H.R. 6181 is a trojan horse which proposes to overturn more 
than 40 years of federal court decisions. In 1979, Judge George 
Boldt determined that the Samish Indian Nation is not a 
successor to any tribe or band that participated in the 1855 
Treaty of Point Elliott. The Samish Indian Nation has sought to 
overturn that decision ever since but have been rejected 
repeatedly by the courts. Judge Boldt's determination itself 
was affirmed by the Ninth Circuit Court of Appeals and the 
United States Supreme Court denied review. Despite this, the 
Samish Indian Nation again claimed successorship in litigation 
seeking federal recognition as an Indian tribe.
    The federal district court repeatedly rejected its 
successorship claim because it had already been decided against 
the Samish Indian Nation. The Samish Indian Nation did not 
appeal those rulings. The court did, however, permit the Samish 
Indian Nation to pursue federal recognition independent of any 
claim to treaty successorship. The Samish Indian Nation 
successfully excluded other tribes from participating in its 
recognition proceedings on the grounds that its federal 
recognition would have no effect on treaty rights. Immediately 
after obtaining federal recognition in 1996, the Samish Indian 
Nation again sought to re-open the successorship question that 
Judge Boldt had decided against it in order to claim treaty 
fishing rights. The attempt to re-open the successorship issue 
was ultimately rejected by an en banc panel of the Ninth 
Circuit.
    The Samish Indian Nation also sought to re-open its 
successorship claim in a case before the U.S. Court of Federal 
Claims. The court rejected any treaty-based claims because the 
Samish Indian Nation is not a successor to any tribe or band 
that participated in the Treaty of Point Elliott. The Samish 
Indian Nation did not appeal that ruling.
    In 2019, the Bureau of Indian Affairs (BIA) Northwest 
Regional Director determined that the Samish Indian Nation was 
eligible to have land taken into trust on its behalf as a 
successor to a treaty tribe. The decision is not a final 
decision for the Department of the Interior. The decision is 
currently being appealed by the Swinomish Indian Tribal 
Community before the Interior Board of Indian Appeals.
    In 2021, through another process, the Samish Indian Nation 
again sought to re-open its successorship claim in a case 
involving hunting rights under the Treaty of Point Elliott. The 
Ninth Circuit again rejected the Samish Indian Nation's 
successorship claim and the United States Supreme Court again 
denied review.
    H.R. 6181 would ``reaffirm'' that the Indian Reorganization 
Act applies to the Samish Indian Nation in another veiled 
attempt to re-open its successorship claim. If enacted, H.R. 
6181 would likely terminate the Swinomish Tribe's appeal of the 
2019 BIA decision before the Interior Board of Indian Appeals 
(IBIA) and be invoked by the Samish Indian Nation to claim that 
Congress had ``reaffirmed'' its status as a successor to a 
treaty tribe--despite the courts' repeated rejection of that 
very claim. The savings clause in H.R. 6181 also does not 
necessarily prevent this because it does not specifically 
address the Samish Indian Nation's successorship claim. H.R. 
6181 is also not necessary to permit the Samish Indian Nation 
to have lands taken into trust on its behalf.
    The obstacle presented by the Carcieri decision can easily 
be removed by legislation confirming that the Indian 
Reorganization Act applies to the Samish Indian Nation 
notwithstanding the ``under federal jurisdiction'' requirement 
in Section 19 of the Act. This is the approach taken in H.R. 
4352, ``To amend the Act of June 18, 1934, to reaffirm the 
authority of the Secretary of the Interior to take land into 
trust for Indian Tribes, and for other purposes.'' This was 
proposed by tribes from the State of Washington to address 
concerns with H.R. 6181, as reported. This proposal was not 
agreed to by the Samish Indian Nation. One interpretation of 
this objection lends evidence to the argument that something 
more than a tribe specific Carcieri fix is sought, such as 
``reaffirmation'' of the Samish Indian Nation's treaty 
successorship claim, through enactment of H.R. 6181.
    The only issue before us is whether the Samish Indian 
Nation was under federal jurisdiction in 1934, as required by 
the Carcieri decision. Until the Regional Director's 2019 non-
final decision, there had been no determination of that 
question and there is nothing to reaffirm on that point. The 
question of whether the Samish Indian Nation was under federal 
jurisdiction in 1934 is a complex legal and factual question. 
If the Samish Indian Nation wants a conclusive decision on this 
question it should allow the appeals process to proceed through 
the IBIA and the courts, which are the appropriate bodies to 
resolve such questions, not Congress. If the Samish Indian 
Nation's intent is to bypass the Carcieri decision so that 
lands can be taken into trust on its behalf now, it can opt for 
a clean Carcieri fix that does not attempt to affirm a 
disputed, non-final under-federal-jurisdiction determination 
that rests on a repeatedly rejected successorship claim.
    For these reasons, I oppose H.R. 6181 as reported by the 
Committee on Natural Resources.

                                   Bruce Westerman.

                                  [all]