[House Report 117-598]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-598
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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.
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\1\555 U.S. 379.
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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]