[House Report 118-197]
[From the U.S. Government Publishing Office]


118th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {      118-197

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



 
                   WOUNDED KNEE MASSACRE MEMORIAL AND
                            SACRED SITE ACT

                                _______
                                

 September 14, 2023.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 3371]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3371) to direct the Secretary of the Interior to 
complete all actions necessary for certain land to be held in 
restricted fee status by the Oglala Sioux Tribe and Cheyenne 
River Sioux Tribe, and for other purposes, having considered 
the same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                       PURPOSE OF THE LEGISLATION

    The purpose of H.R. 3371 is to direct the Secretary of the 
Interior to complete all action necessary for certain land to 
be held in restricted fee status by the Oglala Sioux Tribe and 
Cheyenne River Sioux Tribe, and for other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 3371 would place approximately 40 acres of fee land 
located within the Pine Ridge Indian Reservation, into 
restricted fee status for the Oglala Sioux tribe and Cheyenne 
River Sioux tribe. Restricted fee land contains the same 
restrictions against alienation and taxation as land held in 
trust, but title is not held by the federal government. The 
land to be placed into restricted fee status is to be held as a 
Lakota sacred site and memorial. The memorial honors the more 
than 350 Indian men, women and children killed in the Wounded 
Knee Massacre in 1890, which occurred on and near the land that 
would be placed into restricted fee status by the legislation.
    Both the Oglala Sioux tribe and the Cheyenne River Sioux 
tribe are constituent tribes of the Great Sioux Nation, which 
the tribes refer to as ``Oceti Sakowin,'' meaning ``Seven 
Council Fires'' in the Lakota language. The Oceti Sakowin is 
composed of the Dakota (Santee), Lakota (Teton), and Nakota 
(Yankton). The names Dakota, Lakota, and Nakota mean 
``friends'' or ``relatives,'' and together, the Dakota, Lakota, 
and Nakota are the ``alliance of friends'' or ``alliance of 
relatives.''\1\
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    \1\Frank Star Comes Out, Testimony Before the Committee on Natural 
Resources, Subcommittee on Indian and Insular Affairs, U.S. House of 
Representatives (Jun. 7, 2023).
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    The Great Sioux Nation and the United States signed the 
Treaty of Fort Laramie in 1868.\2\ This treaty was ratified by 
the U.S. Senate and provided that a large land base, including 
western South Dakota was ``set apart for the absolute and 
undisturbed use and occupation'' of the Great Sioux Nation as a 
``permanent home.''\3\ In 1889, the Great Sioux Reservation was 
divided by the Act of March 2, 1889, into six separate 
reservations in North and South Dakota.\4\
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    \2\15 Stat. 635.
    \3\Fort Laramie Treaty of 1868, 15 Stat. 635, arts. 2, 7.
    \4\Act of March 2, 1889, 25 Stat. 888.
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    The Pine Ridge Indian Reservation, established when the 
Great Sioux Reservation was divided in 1889, is home to the 
Oglala Sioux tribe, whose current tribal enrollment is 
approximately 46,855 members.\5\
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    \5\Bureau of Indian Affairs, Pine Ridge Agency, https://
www.bia.gov/regional-offices/great-plains/south-dakota/pine-ridge-
agency.
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    The Cheyenne River Sioux tribe has approximately 26,404 
tribal members.\6\ The Cheyenne River Indian Reservation was 
also established by the Act of March 2, 1889.
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    \6\Cheyenne River Sioux tribe Enrollment Office, Enrollment 
Membership (Aug. 16, 2023).
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    In 1889 and 1890, the Ghost Dance movement grew among the 
plains Indians.\7\ Many native people believed the Ghost Dance 
would return land back to the Indians, bringing about a renewal 
of Native society.\8\ Many danced for renewal and restoration 
of native people, land, and buffalo. The Ghost Dance was 
alarming to federal Indian agents, white settlers, and the 
United States Army, because the religious ceremony was 
misunderstood as threatening.\9\
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    \7\Veronica E. Velarde Tiller, Tiller's Guide to Indian Country, 
2nd ed. at 915.
    \8\Stephanie Hall, ``James Mooney Recordings of American Indian 
Ghost Dance Songs, 1894,'' Library of Congress, Folklife Today blog, 
Nov. 17, 2017. Available at: https://blogs.loc.gov/folklife/2017/11/
james-mooney-recordings-ghost-dance-songs/.
    \9\See Louis S. Warren, ``The Lakota Ghost Dance and the Massacre 
at Wounded Knee,'' PBS, American Experience, Apr. 16, 2021. Available 
at: https://www.pbs.org/wgbh/americanexperience /features/american-oz-
lakota-ghost-dance-massacre-wounded-knee/; Stephanie Hall, ``James 
Mooney Recordings of American Indian Ghost Dance Songs, 1894,'' Library 
of Congress, Folklife Today blog, Nov. 17, 2017. Available at: https://
blogs.loc.gov/folklife/2017/11/james-mooney-
recordings-ghost-dance-songs/.
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    On December 28, 1890, Chief Spotted Elk (Big Foot) and his 
Mnicoujou band were stopped by the U.S. Army's Seventh Cavalry 
on their way to Pine Ridge.\10\ Major Samuel M. Whitside 
ordered Chief Spotted Elk and his people to camp near Wounded 
Knee Creek.\11\ Chief Spotted Elk objected and told him that 
they were headed to Pine Ridge and would camp there.\12\ 
Whitside refused and ordered them to camp at Wounded Knee 
overnight.\13\
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    \10\Hall, supra note 8; Rex Alan Smith, Moon of the Popping Trees 
Ch. 13 (1981).
    \11\Smith, supra note 10.
    \12\Smith, supra note 10.
    \13\Smith, supra note 10.
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    On the morning of December 29, 1890, under the direction of 
Colonel James W. Forsyth, the U.S. Army Seventh Calvary 
soldiers disarmed the Lakota men and older boys, who were lined 
up in front of the armed soldiers.\14\ Black Coyote, a deaf man 
and the last to be disarmed, was seized by soldiers. A struggle 
ensued and a shot went off in the air.\15\ The U.S. Army 
Seventh Cavalry opened fire on Chief Spotted Elk's band and his 
members.\16\
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    \14\Smith, supra note 10.
    \15\Hall, supra note 8; Smith, supra note 10.
    \16\Smith, supra note 10.
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    General Nelson A. Miles, the commanding officer of the 
Military Division of the Missouri in the U.S. Army, later 
described the Wounded Knee massacre as ``the most abominable, 
criminal military blunder and a horrible massacre of women and 
children.''\17\ Years later, General Miles told the 
Commissioner of Indian Affairs that the massacre was ``most 
reprehensible,'' ``most unjustifiable,'' and ``worthy of the 
severest condemnation.''\18\
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    \17\General Miles Letter to Mary Miles, Jan. 15, 1891, quoted in 
Virginia Johnson, The Unregimented General: A Biography of Nelson A. 
Miles 294 (Boston, 1962).
    \18\General Miles Letter to Commissioner of Indian Affairs, Mar. 
13, 1917, quoted in Elain Goodale Eastman, The Ghost Dance War and 
Wounded Knee Massacre of 1890-91, Nebraska History, XXVI 39 (Jan.-Mar. 
1945).
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    In Senate Concurrent Resolution 153 of the 101st Congress 
(Oct. 25, 1990), the United States Congress acknowledged the 
``tragedy'' and ``historical significance'' of the Wounded Knee 
Massacre and expressed its ``deep regret to the Sioux people 
and in particular to the descendants of the victims and 
survivors for this terrible tragedy.'' Congress found that, on 
December 29, 1890, the United States Cavalry engaged in ``armed 
conflict'' against Sioux Indians gathered at Wounded Knee, 
``resulting in the tragic death and injury of approximately 
350-375 Indian men, women, and children.''
    In October 2022, the Oglala Sioux tribe and Cheyenne River 
Sioux tribe jointly purchased 40 acres of land where an old 
trading post was located. The 40 acres contains a portion of 
the area where the Wounded Knee Massacre took place. On October 
21, 2022, both tribes signed a covenant, stating that this 
property shall be held and maintained as a memorial and sacred 
site without commercial development.\19\
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    \19\``Covenant Between the Oglala Sioux tribe and the Cheyenne 
River Sioux tribe Concerning the Czywczynski Property at Wounded Knee'' 
Oct. 21, 2022. Available at: https://republicans-
naturalresources.house.gov/UploadedFiles/
Covenant_Between_Oglala_and_Cheyenne_River_Siou x_Tribes.pdf.
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    H.R. 3371 would place these 40 acres into restricted fee 
status for both the Oglala Sioux tribe and the Cheyenne River 
Sioux tribe. The bill also confirms that the 40 acres will be 
subject to the civil and criminal jurisdiction of the Oglala 
Sioux tribe, and places restrictions on alienation and taxation 
of the land. In accordance with the tribe's mutual covenant 
prohibiting commercial development, gaming pursuant to the 
Indian Gaming Regulatory Act\20\ will be prohibited.
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    \20\25 U.S.C 2701 et seq.
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                            COMMITTEE ACTION

    H.R. 3371 was introduced on May 16, 2023, by Rep. Dusty 
Johnson (R-SD). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Indian and Insular Affairs. On June 7, 2023, the 
Subcommittee on Indian and Insular Affairs held a hearing on 
the bill. On June 13, 2023, the Committee on Natural Resources 
met to consider the bill. The Subcommittee on Indian and 
Insular Affairs was discharged from further consideration of 
H.R. 3371 by unanimous consent. The bill was then ordered 
favorably reported to the House of Representatives by unanimous 
consent.

                                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 on Indian and Insular Affairs held 
on June 7, 2023.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 establishes the short title of the bill as the 
``Wounded Knee Massacre Memorial and Sacred Site Act.''

Section 2. Definitions

    Section 2 defines restricted fee status, provides the legal 
description for the land to be placed into restricted fee 
status; states both the Oglala Sioux tribe and Cheyenne River 
Sioux tribe are the tribes defined in statue.

Section 3. Land held in restricted fee status by the tribes

    Section 3 requires that within one year, the Secretary of 
the Interior shall take all actions necessary to place the 
approximately 40 acres of land in restricted fee status so both 
the Oglala Sioux tribe and Cheyenne River Sioux tribe retain 
title to the land; subjects the land to tribal and federal laws 
relating to Indian land, including the 1868 Treaty, and 
recognizes that the covenant between the tribes preserving the 
land as a sacred site and memorial applies to the land; allows 
for existing encumbrances to continue; and in accordance with 
the covenant, prevents commercial development, including 
gaming, on the land.

            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]


    H.R. 3371 would direct the Department of the Interior (DOI) 
to place approximately 40 acres of land owned by the Oglala 
Sioux and Cheyenne River Sioux Tribes in restricted fee status. 
The two Tribes would retain ownership of the land, and the land 
could not be transferred without the consent of the Congress 
and the tribes. H.R. 3371 would limit the use of the land to a 
memorial and sacred site and prohibit commercial development 
and gaming activity as outlined in a covenant signed in October 
2022. The bill also would require DOI to make any necessary 
corrections to the survey and legal description of the land. 
Using information from the department, CBO estimates that the 
administrative costs to implement H.R. 3371 would not be 
significant.
    H.R. 3371 would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA). The bill 
would prohibit state and local governments from taxing land 
placed into restricted fee status for the Oglala Sioux Tribe 
and the Cheyenne River Sioux Tribe. Reported information on the 
market value of the land indicates that those forgone revenues 
would be well below the annual intergovernmental threshold 
established in UMRA ($99 million in 2023, adjusted annually for 
inflation).
    The bill contains no private-sector mandates.
    The CBO staff contact for this estimate is Julia Aman (for 
federal costs) and Rachel Austin (for mandates). The estimate 
was reviewed by H. Samuel Papenfuss, Deputy Director of Budget 
Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to direct the Secretary of the 
Interior to complete all action necessary for certain land to 
be held in restricted fee status by the Oglala Sioux Tribe and 
Cheyenne River Sioux Tribe, and for other purposes.

                           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 the Congressional Budget Office, H.R. 3371 
would impose an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act. The bill would prohibit state and 
local governments from taxing land placed into restricted fee 
status for the Oglala Sioux Tribe and the Cheyenne River Sioux 
Tribe. According to CBO, reported information on the market 
value of the land indicates that those forgone revenues would 
be well below the annual intergovernmental threshold 
established in the Unfunded Mandates Reform Act, which is $99 
million in 2023, adjusted annually for inflation. According to 
CBO, the bill contains no private-sector mandates.

                           EXISTING PROGRAMS

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                  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

    As ordered reported by the Committee on Natural Resources, 
H.R. 3371 would make no changes in existing law.

                                  [all]