[Senate Report 118-208]
[From the U.S. Government Publishing Office]
Calendar No. 472
118th Congress } { Report
SENATE
2d Session } { 118-208
======================================================================
WOUNDED KNEE MASSACRE MEMORIAL
AND SACRED SITE ACT
_______
August 1, 2024.--Ordered to be printed
_______
Mr. Schatz, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 2088]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 2088) 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 for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
PURPOSE
S. 2088 would place 40 acres of the Wounded Knee massacre
site, currently owned in fee by the Oglala Sioux Tribe and
Cheyenne River Sioux Tribe, into restricted fee status.
BACKGROUND
In 1868, the United States entered into the Treaty of Fort
Laramie with the Sioux Nation.\1\ In exchange for ceding
thousands of acres of land, among other promises, to the United
States, the Treaty established the Great Sioux Reservation in
western South Dakota, which was ``set apart for the absolute
and undisturbed use and occupation'' as a ``permanent home''
for the Nation.\2\ The Reservation was ultimately divided into
six separate reservations in North and South Dakota, including
the Pine Ridge and Cheyenne River Indian Reservations, by the
Act of March 2, 1889.\3\
---------------------------------------------------------------------------
\1\15 Stat. 635 (Feb. 16, 1869) (Brule, Oglala, Miniconjou,
Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, and
Santee Sioux bands and the Arapaho).
\2\Id., Arts. 2, 7.
\3\Act of March 2, 1889 (25 Stat. 888).
---------------------------------------------------------------------------
Despite the Treaty, tensions between non-Indian settlers,
federal agents, and the Sioux bands continued. On December 28,
1890, Chief Spotted Elk (Big Foot) and his Minicoujou Sioux
band were stopped by the U.S. Army's Seventh Cavalry on their
way to Pine Ridge Indian Reservation in South Dakota. Major
Samuel M. Whitside ordered Chief Spotted Elk and his people to
camp near Wounded Knee Creek. Chief Spotted Elk objected and
told him that they were headed to Pine Ridge and would camp
there. Major Whitside refused and ordered them to camp at
Wounded Knee overnight.\4\
---------------------------------------------------------------------------
\4\See, e.g., 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/american
experience/features/american-oz-lakota-ghost-dance-massacre-wounded-
knee/.
---------------------------------------------------------------------------
On December 29th, 1890, 7th Calvary troops were sent to
disarm the Lakota due to non-Indian settler concern over
potential armed attack. A struggle occurred between the U.S.
Army and some of Chief Spotted Elk's band, and the U.S. Army
opened fire on this largely unarmed group, massacring over
hundreds of Lakota men, women, and children. Those who tried to
escape were hunted down and killed by the U.S. Army.
On the 100th anniversary of the massacre, Congress issued a
formal apology, expressing deep regret for the actions of the
federal government and acknowledging the historical
significance of this event as the last armed conflict of the
Indian wars.\5\
---------------------------------------------------------------------------
\5\S. Con. Res. 153 101st Cong. (1990).
---------------------------------------------------------------------------
In September 2022, the Oglala Sioux Tribe and Cheyenne
River Sioux Tribe purchased a portion of the land where the
massacre occurred, in fee simple, from a private owner. On
October 21st, 2022, both Tribes signed a covenant providing
that the property will be maintained as a memorial and sacred
site without any commercial development, including gaming.\6\
---------------------------------------------------------------------------
\6\Covenant Between the Oglala Sioux Tribe and the Cheyenne River
Sioux Tribe Concerning the Czywczynski Property at Wounded Knee (Oct.
21, 2022), on record with the Committee.
---------------------------------------------------------------------------
NEED FOR LEGISLATION
Congressional action is needed to transfer title to 40
acres of the Wounded Knee Massacre site jointly owned in fee
simple by the Oglala Sioux and Cheyenne River Sioux Tribes into
restricted fee status.
SUMMARY OF THE BILL AS ORDERED REPORTED
S. 2088 directs the Secretary of the Interior place into
restricted fee status approximately 40 acres of land currently
jointly owned in fee by the Oglala Sioux Tribe and Cheyenne
River Sioux Tribe.
LEGISLATIVE HISTORY
On June 21, 2023, Senators Rounds (R-SD) and Thune (R-SD)
introduced S. 2088, the Wounded Knee Massacre Memorial and
Sacred Site Act. On the same day, the Senate referred the bill
to the Committee on Indian Affairs. On July 19, 2023, the
Committee held a legislative hearing to receive testimony on S.
2088. On November 15, 2023, the Committee met at a duly
convened business meeting and ordered S. 2088 reported
favorably, without amendment, by voice vote.
On May 16, 2023, Representative Johnson (R-SD) introduced
H.R. 3371, the Wounded Knee Massacre Memorial and Sacred Site
Act, an identical bill to S. 2088. On the same day, H.R. 3371
was referred to the House Committee on Natural Resources. On
May 22, 2023, the bill was further referred to the Subcommittee
on Indian and Insular Affairs. On June 7, 2023, the
Subcommittee held a hearing and received testimony on H.R.
3371. On June 13, 2023, the Subcommittee discharged and the
Committee considered H.R. 3371, which was ordered reported
favorably by unanimous consent, without amendment. On September
14, 2023, the Committee reported H.R. 3371, and on the same
day, the bill was placed on the Union Calendar. On September
18, 2023, Representative Collins (R-GA) successfully moved to
suspend the rules and pass the bill. On September 20, 2023,
H.R. 3371 was passed by voice vote. The following day, H.R.
3371 was received in the Senate and referred to the Committee
on Indian Affairs. No further action has been taken on the bill
in the Senate to date.
SECTION-BY-SECTION ANALYSIS OF S. 2088 AS ORDERED REPORTED
Section 1--Short title
This section establishes the short title of the bill as,
the ``Wounded Knee Massacre Memorial and Sacred Site Act.''
Section 2--Definitions
This section provides definitions for the terms used in the
bill.
Section 3--Land held in restricted fee status by the Tribes
This section directs the Secretary of the Interior place
into restricted fee status, not later than 365 days after
enactment of the legislation, approximately 40 acres of land
that is currently jointly owned in fee simple by the Oglala
Sioux Tribe and Cheyenne River Sioux Tribe. The bill also
clarifies that the land shall be subject to restrictions
against alienation; limited to the purposes described in the
2022 covenant between the Oglala Sioux Tribe and the Cheyenne
River Sioux Tribe; subject to existing encumbrances, rights-of-
way, or other restriction or use; and subject to a prohibition
against gaming under the Indian Gaming Regulatory Act.
COST AND BUDGETARY CONSIDERATIONS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 2088 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. S. 2088 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 S. 2088 would not be
significant.
S. 2088 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 ($100 million in 2024, adjusted annually
for inflation).
The bill contains no private-sector mandates.
On August 24, 2023, CBO transmitted a cost estimate for
H.R. 3371, the Wounded Knee Massacre Memorial and Sacred Site
Act, as ordered reported by the House Committee on Natural
Resources on June 13, 2023. The two bills are similar, and
CBO's estimates of their budgetary effects are the same.
The CBO staff contacts for this estimate are 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.
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. 2088 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE TESTIMONY
Written testimony of Wizipan Garriott, Principal Deputy
Assistant Secretary for Indian Affairs, U.S. Department of the
Interior, before the Committee on Indian Affairs, delivered on
July 19, 2023, is below:
Good afternoon, Chairman Schatz, Vice Chairman Murkowski,
and members of the Committee. My name is Wizipan Garriott, and
I am the Principal Deputy Assistant Secretary for Indian
Affairs at the Department of the Interior (Department). Thank
you for the opportunity to present testimony regarding S. 2088,
Wounded Knee Massacre Memorial and Sacred Site Act.
In October 2022, the Oglala Sioux Tribe and Cheyenne River
Sioux Tribe of the Cheyenne River Reservation (Tribes) acquired
approximately 40 acres of land in Wounded Knee, South Dakota.
The lands are significant to both Tribes as more than 300
Lakota people were lost at the site in 1890. The Tribes
acquired the land from private owners and plan to maintain the
site as a memorial and sacred site protected from commercial
development.
S. 2088 directs the Secretary of the Interior, within one
year, to complete and make any corrections to the survey and
legal description of the land and any other necessary actions
for the land to be held by the Tribes in restricted fee status.
S. 2088 defines restricted fee status to mean that the two
Tribes retain ownership of the land, the lands are part of the
Pine Ridge Indian Reservation and subject to civil and criminal
jurisdiction of the Oglala Sioux Tribe, cannot be transferred
without the consent of Congress and the Tribes, is not subject
to State or local taxation, and is not subject to any law
requiring the review or approval of the Secretary of the
Interior for the Tribes to use the land as allowed by the
covenant the Tribes entered into on October 21, 2022. The use
of the lands is limited by S. 2088 to those outlined in the
October 2022 covenant, which states the lands will be held and
maintained as a memorial and sacred site without commercial
development, and the lands cannot be used for gaming activities
under the Indian Gaming Regulatory Act. The Department supports
S. 2088 as it aligns with the Administration's commitment to
restore Tribal homelands. The Tribes will have more authority
to honor and protect the Wounded Knee site.
Chairman Schatz, Vice Chairman Murkowski, and Members of
the Committee, thank you for the opportunity to provide the
Department's views.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 2088.
CHANGES IN EXISTING LAW
On February 9, 2023, 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]