[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\
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    \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).
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    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/.
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    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\
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    \5\S. Con. Res. 153 101st Cong. (1990).
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    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.
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                          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]